California Drunk Driving Laws
 Two Bites at the Same Rotten Apple
Under California law, there are two ways to convict someone of DUI. Either they can be convicted of driving while they were impaired by alcohol; or, simply by driving while having .08% or more, by weight, of alcohol in their body. This can be proven by blood or breath test results.
The first way is what most people think of when they picture the drunk driver. It is when someone is sloppy behind the wheel because they have consumed alcohol. The legal standard is that someone is legally “impaired” where they are unable to operate their vehicle with the same caution characteristic of a sober person of ordinary prudence under the same or similar circumstances. This is the long-winded, “legalese” way of saying that someone is a sloppy driver because they drank too much.
The second way that a person can be convicted has nothing to do with the way they were driving. It is based purely on body chemistry. It is where the accused has .08% or more, by weight, of alcohol in their blood. In this prosecution, it does not matter what the person’s driving was like. In order to prevail, the prosecutor must prove beyond all reasonable doubt that the blood alcohol level was above the legal limit. The key here is that the tests used to determine a suspect’s alcohol level are subject to many different errors. The trick is to know what they are. This is why a person accused of drunk driving should have a lawyer that specializes in this area of the law.
Under 21
There are special laws in California for persons under 21 who are arrested for DUI. Just like with people over 21, there are two separate prosecutions: the DMV (who is trying to take away the persons driver’s license) and the criminal court (who is trying to impose other types of punishment, like jail, fines, mandatory classes relating to the dangers of alcohol consumption, and so on.) However, the punishment is more severe for persons under 21, especially with the DMV under California’s “Zero Tolerance” laws.
The effect of these “Zero Tolerance” laws is to make things tougher on those under 21 who are caught driving with any hint of impairment due to alcohol. The under-21 driver can have their driver’s license taken away by the DMV if their BAC is .01 or greater, they can be charged with a violation of Vehicle Code Section 23140 (under-21 DUI) if their BAC is .05 or greater, and they can be charged under the same DUI laws as adults, all at the same time. It is important to have professional help, to ensure that youthful mistakes don’t have lifelong consequences.
If you or someone you care about is under 21, and charged with a DUI or related offense, please contact a skilled California DUI lawyer in your area. Many DUI cases can be successfully defended. Before you even think about pleading guilty, please talk to someone who knows this particular area of the law.
Implied Consent / Chemical Test Refusal
Once a person is placed under arrest for driving under the influence of alcohol or drugs, they are to be told that they have a choice of chemical tests that they must take. According to California’s implied consent law, the person arrested has a choice of taking a blood or breath test if the arrest is alcohol related, or taking a blood or urine test if the arrest is drug related. There is no right to take a urine test for alcohol related D.U.I., unless it is suspected that the driver has a combination of alcohol and drugs in their system. There is no right to consult with a lawyer prior to taking the test.
Title 17 of the California Code of Regulations sets out the requirements for proper chemical testing in California. Where these standards are violated, the result of the test is unreliable, and should not be the basis for a D.U.I. conviction.
Where the sample is blood or urine, your defense lawyer can and should get the sample tested by an independent laboratory.
Where the accused refuses to take a blood, breath or urine test, this refusal can be used as evidence that the accused was conscious of their guilt. The DMV will also use this refusal to suspend or revoke the suspect’s driver’s license and the refusal can also be used to enhance the punishment in criminal court in the event of a conviction.
Defenses
- Did you know that dental work can trap alcohol in the mouth, and cause a falsely high breath test reading?
- Did you know that speeding, by itself, is consistent with sobriety and not intoxication?
- Do you know what Field Sobriety Tests are designed to demonstrate, and how the results can be turned into favorable evidence for you?
The prosecutor and police will attempt to prove the accused is guilty of DUI by describing impaired driving; a physical description consistent with being intoxicated (red, watery eyes; odor of alcohol on the breath; sloppy dress); poor performance on the field sobriety tests; and by introducing the results of the chemical testing (blood, breath or urine) if a test is taken. If there is no chemical test, the prosecutor will attempt to use a refusal to take a chemical test as “consciousness of guilt.”
The defenses to the DUI charges will generally fall into these same four categories: driving, physical appearance, field sobriety tests, and chemical testing. Remember that a conviction requires 12 jurors to agree on the guilt of the accused. A skilled criminal defense attorney is the best hope for creating doubt in these areas, rendering the prosecution’s evidence an unreliable basis for the jury to return a guilty verdict.
A criminal defense attorney can highlight those areas where the driving by the accused was consistent with their being sober at the time. Turning normally, parking properly, and signaling appropriately: those driving patterns that are consistent with sobriety can go a long way towards presenting the complete picture, and rebutting the prosecution’s case.
Every place the police report is silent is a fertile area to demonstrate the innocence of the accused. Everything the accused didn’t do can be the best evidence of their sobriety, and the basis for a “not guilty” verdict. For example, if the police report does not say the accused fumbled with their driver’s license, a skilled criminal defense attorney can make points by illustrating that an intoxicated person might, but that this accused did not.
The same is true with the accused’s physical appearance. If there are alternative explanations for red, watery eyes that the police did not investigate (such as lack of sleep, exposure to cigarette smoke, allergies, etc.), a skilled defense lawyer can raise doubt that the officer’s observations had anything to do with the consumption of alcohol.
An experienced criminal defense attorney will know how to point out the faults of whichever chemical test is involved, or the legitimate reasons why a chemical test was refused. There are many reasons for falsely high breath tests. The accused may have burped prior to taking the test. The testing device may be improperly calibrated. Electrical interference from police radios can skew the results. A blood sample may have improper levels of preservatives. The point is that there are many ways to chip away at the trustworthiness of the prosecution’s evidence, and prevent the prosecution from meeting their burden of proof beyond a reasonable doubt.
If you or anyone you care about has been accused of DUI, please consult a Southern California DUI Lawyer right away.
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