DUI cases involve scientific evidence and old fashioned “police work.” While every DUI case is different, there are some common defenses that are “tried and true,” useful for a Los Angeles DUI Lawyer to fight and beat DUI charges. DUI defenses can be categorized into two broad categories, “Legal Defenses” and “Scientific Defenses.”
“No Drive” defense:
The “No Drive” defense attacks the prosecutions case by pointing out there is no evidence the defendant was actually driving a motor vehicle and should therefore not be convicted of DUI. This defense is useful where police officers do not observe the defendant driving, but later come upon the defendant at the roadside and arrest them for DUI. A common scenario involves a car colliding with a guardrail or parked car. The driver may get out of his or her car and wait by the roadside. If police officers arrive at the scene, they might try to charge the driver with DUI. Although the officer in this case did not observe the driver driving, prosecutors will attempt to show a valid arrest occurred under CVC 40300.5. Even if the arrest itself can be justified, a “no-drive” defense attacks the prosecution’s case in chief by arguing a DUI driver cannot be convicted of DUI unless the prosecution proves beyond a reasonable doubt the driver actually was driving the car. This defense is most successful when there are numerous bystanders near the car where there is a plausible argument that someone other than the defendant was driving the car.
“Rising Blood Alcohol Level” Defense:
The rising blood alcohol level defense is used to show the defendant’s blood alcohol level was below the legal limit at the time of driving, then rose to at or above the legal limit later on when the defendant was subjected to chemical testing.
This defense is a highly technical scientific defense that requires the jury understand some complex science. Often, defense lawyers will employ an expert witness who, because of their unique skills, education and experience, can educate the jury and help them understand that a driver’s blood alcohol concentration goes up over time after they consume alcohol. The expert witness then shows the jury how, based on this the driver’s blood alcohol concentration could have been below 0.08% when they were driving and later rose to above 0.08% when they were subsequently tested.
Improper or Incomplete “Admonition” in Refusal Cases
In a DUI “Refusal” case, the driver refuses to submit a blood or breath test to law enforcement. These cases carry a harsh license suspension from the DMV (minimum of 1 year, maximum of 3 years license suspension with NO RESTRICTED LICENSE.) In these cases, the driver must willfully refuse to submit a chemical test. In order to establish the driver truly was willful in their refusal, the DMV has to show the driver refused to submit a chemical test after being made fully aware of the consequences. This is accomplished through an “admonition.” “Admonition” is a fancy lawyer word for “warning.” In refusal cases, this warning must be given by police officers before the driver says whether or not they want to submit a chemical sample. As discussed below, DUI field investigations and arrests are conducted in less than ideal circumstances: night time, side of the road, busy settings, open to the elements. Police officers involved in DUI refusal cases can and often do make critical errors in making the proper admonishments to drivers.
Attacking “bad” police work
Every DUI case involves some old fashioned police work. Crime scene investigation, gathering witness statements, examining evidence, writing reports. Finding errors is a matter of looking over the work done by police officers in a particular case. Often DUI arrests are conducted at night, in less than ideal surroundings (near a busy freeway for example) leading to distractions that can get police officers “off their game,” leading to errors. Even if one of these errors doesn’t effect substantive evidence in a particular case, police sloppiness can be very useful in impeaching their credibility and raising doubt if a jury is shown just how sloppy or rushed a particular DUI investigation is. If it is proven an officer is sloppy or careless while conducing a DUI field investigation, this opens the door to reasonable doubt in other areas that officer’s credibility are needed in order for the prosecution to prevail.
Attacks on the Field Sobriety Tests: They’re fake as hell.
It is almost common knowledge in our culture that police use silly looking tests at the side of the road to test for a driver’s impairment. These tests have been euphemistically called “field sobriety tests” in attempt to give them more scientific credibility than they deserve. THESE TESTS ARE NOT SCIENTIFIC. They have not been scientifically validated to show a particular blood alcohol concentration. They have not been rigorously tested in any sort of medical or FDA level testing process. They were designed by law enforcement for the purposes of increasing the number of DUI convictions. Learn more about how to attack field sobriety tests here: DUI Field Sobriety Tests.