625 BROADWAY SUITE 600 SAN DIEGO, CA WAYS TO BEAT YOUR CALIFORNIA DUI CHARGES

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1 GRIFFIN LAW OFFICE 625 BROADWAY SUITE 600 SAN DIEGO, CA WAYS TO BEAT YOUR CALIFORNIA DUI CHARGES 1. No Probable Cause for the Stop If the officer didn't have probable cause to stop, detain, or arrest you for DUI, the evidence-- and the case--may get thrown out of court Before the police can stop your car, detain you to conduct a DUI investigation, or arrest you for a California DUI, they must have a reasonable suspicion or reasonable belief that you are engaged in criminal activity. This reasonable belief is a legal standard known as probable cause. If an officer doesn't have the probable cause necessary before engaging in any one of these stages, any evidence that is obtained as a result of that illegal procedure will be suppressed. When a judge suppresses evidence, it means that the prosecution cannot use it against you. As a result, evidence obtained without probable cause usually results in reduced or dismissed California DUI charges. For example, if you were driving at 2:05 a.m. and committed no traffic violation but were pulled over for simply being on the road after bar time any evidence obtained after the stop could not be used against you. This includes anything you say to the officer, the blood/ breath results, and any field sobriety tests. 2. Faulty Breath Tests The DUI breath tests used in California are far from perfect. In fact, these tests are subject to some of the following problems: A. Instrument Malfunction B. Physiological Conditions (gastroesophageal reflux disease aka GERD) C. Improper use by the police D. Failure to observe the defendant prior to the While DUI breath testing is the most common way to measure one's BAC, it's not always an accurate one. This is because of the fact that a DUI breath test doesn't directly measure the amount of alcohol in your blood. It measures the amount of alcohol present in your breath and then converts that amount to determine the amount of alcohol in your blood. As a result, DUI breath testing is susceptible to a variety of outside influences that can generate an erroneously high BAC reading. Page 1

2 3. Mouth alcohol DUI breath testing instruments are designed to capture a sample of breath from your deep lung tissue (otherwise known as "alveolar air"). When residual alcohol lingers in the mouth for some of the following reasons: A. Dental work trapped small amounts of alcohol-soaked food in your teeth, B. You burped or regurgitated, or C. You suffer from GERD, acid reflux or heartburn The breath test instrument captures "mouth alcohol" rather than simply aveolar air. As a result, mouth alcohol can trigger a falsely high BAC reading on a California DUI breath test. 4. Medical Conditions Medical conditions such as GERD, acid reflux, and/or heartburn can contaminate your DUI breath test results Gastroesophageal Reflux Disease (more commonly referred to as "GERD"), acid reflux, and heartburn are all recognized medical conditions that create possible mouth alcohol situations. This is because these conditions produce a flow of acid that travels from the stomach into the mouth. When this occurs just prior to or during a DUI breath test, the alcohol that travels from your stomach to your mouth disguises the deep lung air that the breath testing instrument is intended to measure. As a result, GERD, acid reflux, and/or heartburn can cause a falsely high BAC on a California DUI breath test. 5. Diet A low-carbohydrate, high-protein Atkins-style diet or conditions such as diabetes or hypoglycemia can trick a DUI breath test and result in a false high BAC. Self-imposed conditions such as Atkins-style diets and medical conditions such as diabetes and hypoglycemia are actually capable of self-producing isopropyl alcohol. This is because bodies that are deprived of carbohydrates turn to stored fat for energy. This process produces ketones. Ketones, when eliminated from the body through breath and urine, convert into isopropyl alcohol. This raises a problem with respect to breath tests because most California DUI breath testing instruments aren't sophisticated enough to distinguish between this self-produced isopropyl alcohol and ethyl alcohol (the type of alcohol that we drink). As a result, Atkins-style diets or diabetes or hypoglycemia can trick a DUI breath testing instrument into producing a falsely high BAC. Page 2

3 6. "Rising Blood Alcohol" Rising blood alcohol means that your BAC was higher when you took the test than when you were actually driving Alcohol takes a certain amount of time (typically between 50 minutes and three hours) to absorb into your system. If, for example, you had just recently finished drinking and were investigated for DUI shortly thereafter your alcohol may not have reached its peak absorption rate. When this is the case, your blood alcohol level is still rising, which can cause a false high DUI BAC result. This is because your BAC at the time of your blood or breath test is irrelevant. What is relevant is what your BAC is at the time of driving. Just because you have a BAC that is above the legal limit when you submit to a DUI chemical test, does not mean that's what your BAC was at the time of driving. Prosecutors assume that everyone is beyond their peak absorption phase when they submit to California DUI chemical testing. We know, however, that this isn't always the case and that rising blood alcohol is a very legitimate DUI defense. This rising blood alcohol defense applies to both DUI blood testing and DUI breath testing. 7. California DUI Blood Testing Isn t Always Accurate There are a variety of factors that could taint the results of your DUI blood test results: A. Blood fermentation, B. Improper storage of your blood sample, and C. Blood contamination These are just a few of the reasons why your blood tests results might not be accurate. This is why we say that California DUI blood testing certainly isn't foolproof. Depending on the circumstances surrounding the collection and storage of your DUI blood test, your California DUI defense lawyer may be able to have your BAC results excluded from evidence. If your BAC is suppressed, your charge under Vehicle Code 23152(b) driving with a BAC of at least 0.08% must be dismissed. 8. Violations of Title 17 of the California Code of Regulations Title 17 of the California Code of Regulations sets forth the requirements for collecting, storing, and analyzing DUI chemical tests. These regulations are very specific, and any violation of California's Title 17 can compromise your DUI BAC results. Violations of Title 17 include the following: A. The technician who drew your blood wasn t property trained or certified; B. The DUI breath testing instrument you use hasn t been calibrated properly If there was a Title 17 violation your BAC could be excluded from evidence...or at the very least, its accuracy will be called into question. Page 3

4 9. Field Sobriety Tests Aren t Accurate. California field sobriety tests ("FSTs") aren't accurate indicators of alcohol and/or drug impairment Even the most reliable California field sobriety tests aren't accurate indicators of alcohol and/or drug impairment. The three tests that have actual data to support their trustworthiness are only between 65-77% accurate at detecting impairment and that's only if they are precisely administered and scored (which is rarely the case). Innocent explanations can explain poor performance on FSTs. These include: A. officer-induced intimidation, B. bad weather conditions, C. poor lighting, D. uneven surface conditions, E. poor footwear, and F. un-athletic or uncoordinated driver 10. A BAC Over.08 Doesn t Always Equal Driving Under the Influence Blood alcohol concentration (BAC) is affected by many different factors, not just the actual amount of alcohol in one's body. These factors include (but are not limited to): A. Errors in California DUI chemical testing equipment, B. Errors in obtaining your DUI blood, breath, or (when appropriate) urine sample, C. Your medical conditions, and D. When you took your last drink. Each of these factors can independently affect the accuracy of your BAC results, so don't let the number fool you a BAC over.08 doesn t necessarily mean you are guilty of DUI. 11. Your BAC Doesn't Accurately Reflect Your Level of Impairment If a significant discrepancy exists between your BAC and your alleged level of impairment, something is wrong. This may be the case where you either (1) reportedly exhibited no impairment, or (2) exhibited even slight impairment, but your BAC was high by even as much as two or three times the legal limit. When this type of situation occurs (sometimes referred to as a "disconnect" case), and your DUI BAC doesn't accurately reflect your alleged level of impairment, the evidence can't be trusted...something just doesn't add up. Page 4

5 12. You weren't driving It isn't enough for the police to prove you were under the influence. The police must also prove that you were also driving. For example, if you were involved in an accident and no one saw you driving the car, or if the police found you when you were in your parked car, it will be more difficult for the prosecution to prove one of the key elements of a DUI: that you drove. If the prosecutor can't prove that you were driving, you can't be convicted of a California DUI. 13. Radio Frequency Interference (RFI) Radio frequency interference ("RFI") can cause a California DUI chemical blood or breath test to produce an erroneously high BAC. This is because almost all electronic devices, such as those used to analyze DUI blood and breath samples, are susceptible to RFI or EFI (electromagnetic interference). The potential sources of radio frequency interference (RFI) within the law enforcement environment are numerous for example, AM and FM radios, police station dispatchers, hand-held police transmitters, teletypes, and police radar units. Each of these may emit the kind of interference that could cause specific DUI breath alcohol test devices to render false results. It was then learned that the federal government (National Bureau of Standards) was testing for RFI sensitivity every type of breath testing device currently in use by law enforcement agencies in DUI investigations. The prosecution may counter the DUI defense attorney attack in a DUI trial by pointing out that the machine has an RFI detector. The problem with such detectors is that they are simply not reliable. First, as repeated tests have demonstrated, there is a segment of the frequency band to which the detector is essentially blind. If there is a source of interference from a device emitting electromagnetic waves in this frequency range, it will not be detected. 14. Even a perfect BAC test has an error rate There are inherent error rates with California DUI chemical testing Even assuming that all testing conditions are perfect, the testing equipment has been properly maintained and calibrated, and there aren't any physiological conditions that could adversely affect the test, there is still an inherent error rate with California DUI chemical testing. Experts agree that California DUI chemical testing has a +/- error rate of between %. As a result, a California DUI defense attorney can challenge BAC results that are between %, since they could be lower than the minimum 0.08% required by Vehicle Code 23152(b)driving with a BAC of at least 0.08%. Page 5

6 15. Police Misconduct Even if you were driving under the influence, police misconduct may absolve you of your DUI charges. If you can demonstrate police misconduct, then your DUI charges may have to be dismissed...even if you were actually guilty of DUI. This is because proper police procedures must be followed. For example, A. DUI police reports must be accurate, B. Title 17 procedures must be complied with, and C. Courtroom testimony must be truthful. If these, or other, conditions are purposely manipulated, evidence that was illegally obtained or fabricated will be suppressed. Depending on how severely this impacts the prosecutor's case, he/she may choose to reduce or even dismiss your charges. Page 6

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