Many people think, “I did a Breathalyzer and blew over the legal limit so I was drunk driving.” That is just wrong. The .08 number has very little to do with “drunk driving,” and a breath test over a .08 is just the beginning of a case, not the end.
Some people know about common DUI defenses like “I wasn’t the driver” or “my blood alcohol level was ‘rising’ or going up, and I was lower at the time of driving.”
Some people even know about “calibration” issues that exist with a breath test instrument or that there may have been an improper stop with out probable cause.
However, to a skilled and experienced DUI defense attorney, these defenses are ONLY JUST THE BEGINNING.
When properly reviewing and analyzing a case, there are dozens if not hundreds of things that must be considered.
It is like going to the doctor: maybe you have an infection and you need some antibiotics, or maybe you have something more serious. If the doctor does not ask the right questions and do the right tests, the doctor may miss a bigger problem.
Defenses that need to be analyzed in a DUI case include the following:
- Is the DUI charge the correct Vehicle Code?
- Are there facts to support any special allegations?
- Are any prior DUIs valid for court purposes?
- Were any speedy trial rights violated?
- Were any civil rights violated?
- Were Miranda rights violated?
- Are there search and seizure issues?
- Were there problems with the administration of the FSTs?
- Were the FSTs standardized or non-standardized?
- Were there problems with the scoring of the FSTs?
- Were there problems with the breath test instrument?
- Were there problems with the law enforcement’s use of the breath test instrument?
- Were there problems with the crime lab that maintains the breath test instrument?
- Was the instrument properly maintained, checked for accuracy, and calibrated?
- Was the officer properly trained on the instrument used?
- Was the instrument on the Federal Conforming Products List?
- What does the manufacturer warrant the instrument for?
- What software is the instrument using?
- Are there any audits of the instrument and its maintenance?
- Has the instrument passed scientific acceptance?
- Does the office have a history of misconduct or fabricating evidence?
- Does the prosecution team preserve all evidence?
- Was Title 17 complied with?
- Was there a proper observation or deprivation period?
- Was there RFI (radio frequency interference)?
- Was there contamination from external sources?
- Was there contamination from the testing subject?
- Was there contamination from internal sources?
- Was there a legal justification for driving under the influence?
- Was there officer misconduct?
- Was there prosecutor misconduct?
- Was there judicial misconduct?
- Can evidence be excluded or thrown out because of a violation of the Evidence Code, Vehicle Code or Penal Code?
As you can see the list of defenses and legal justification for excluding or throwing out evidence is almost endless!
If you look at a DUI case like a prosecutor (or many former prosecutors), there are only a couple of issues. If you study the law, science and facts of a DUI case, you see that the possible defenses are endless.
With so many possible defenses, a good attorney will be left with trying to choose the right defense or defenses for your case.
Don’t think that blowing into a machine on the side of the road equals guilt or innocence. Keep in mind a jury of 12 must decide unanimously (all 12) on guilt or Not Guilty. We don’t need to prove you were alcohol free to win!
Winning can be one person agreeing that there is a doubt based on the law, science or facts presented.
Personal Attention
