COMMON DEFENSES TO A DRIVING UNDER

THE INFLUENCE CHARGE IN CALIFORNIA

Although Each DUI Prosecution Presents a Unique Set of Facts and Circumstances There are Some Defense

Strategies that are Commonly Used to Defend a DUI Charge

DOMENIC J. LOMBARDO

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Over the last several decades both private advocacy groups and public

agencies have waged a campaign against drunk driving across the United

States. Their efforts have largely been successful. Laws throughout the U.S.

have been changed to provide for tougher penalties for even a first time

driving under the influence, or DUI, conviction. If you have been charged

with DUI in California you likely already know that you face harsh judicial

and non-judicial penalties if you are convicted. For this reason, a strong

defense is crucial. Although each DUI prosecution presents a unique set of

facts and circumstances there are some defense strategies that are

commonly used to defend a DUI charge.

CALIFORNIA DUI CONVICTION PENALTIES

As recently as a generation

ago the penalty for a drunk

driving conviction was

essentially a slap on the wrist

unless the defendant had a

history of DUIs or caused an

accident while driving drunk.

Those days are long gone.

Today, the court ordered

penalties for a first-time DUI conviction in California may include:

48 hours of mandatory jail time (may be converted to work service)

Three to five years of probation

Completion of DUI school

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Loss of driving privileges for six months

Installation of an ignition interlock device

Payment of fines and costs that typically exceed $2,000

Along with the judicial penalties ordered by the court a defendant also faces

a number of harsh non-judicial ramifications if convicted of DUI in

California, including:

Increased insurance

rates for several years

Disciplinary action if

you hold a professional

license

Lost employment

opportunities

Interference with

custody or visitation with minor children

The only way to avoid these penalties is to prevent a conviction. Preventing

a conviction, in turn, requires a strong defense. Law enforcement officers

and prosecutors frequently make it sound like a DUI charge cannot be

defended, meaning that a conviction is imminent. Nothing is further from

the truth. On the contrary, with an experienced California DUI attorney on

your side you may stand a very good chance of avoiding a conviction.

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THE STATE’S EVIDENCE

In any criminal prosecution

the State of California relies

on evidence collected by

law enforcement personnel

to prove the case and

convict the defendant. A

DUI case is no different.

Typically, the State’s

evidence will include any,

or all, of the following:

Arresting officer’s testimony regarding the reason for the stop

In-dash video of the stop

Officer’s testimony regarding the results of the field sobriety tests

Physical evidence found in the vehicle such as open alcohol

containers

Breathalyzer test results

Blood test results

Urine test results

In the United States an accused is innocent until proven guilty. In practical

terms what that means is that the State of California has the burden of

proving your guilt. Your defense, therefore, often focuses on preventing the

State from introducing evidence against you and/or discrediting evidence

introduced by the State or witnesses for the State.

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COMMON DEFENSES

No two DUI stops are exactly the same. For this reason, only an

experienced California DUI defense attorney can evaluate the specific facts

and circumstances of your stop and arrest and provide you with detailed

advice regarding your best defense strategy. There are, however, some

common defense strategies employed in DUI cases, including:

Challenging the stop – an officer is required to have a legal reason

to stop you before a stop can be effectuated. A vague suspicion that

you are doing something you shouldn’t be is not sufficient.Probable

cause is required for a stop to be considered legal. Officers routinely

testify that a driver was “weaving”, “speeding”, “changing lanes

frequently” or exhibiting some other driving behavior that allegedly

formed the basis of probable cause to believe the driver was

intoxicated at the time. Under cross-examination, however, the

officer may have to admit that those same driving behaviors could be

the result of a distracted or drowsy driver.

Challenging the FST results – once an officer gets past the

preliminaries you may be asked to exit the vehicle and perform a

series of field sobriety tests, or FSTs. Even when these tests are

correctly administered under ideal circumstances they only provide a

possible clue to intoxication. Performing poorly on the FSTs can also

be caused by physical disability, medical conditions, or just plain

nerves. Moreover, the tests are often administered incorrectly and the

results are often slanted by the officer’s desire to proclaim the

motorist intoxicated.

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Challenging the chemical test results – contrary to what people

are led to believe, results of a chemical test are far from reliable.

Results of a breath test can be off by as much as 50 percent when the

machine is functioning properly and the test is administered

correctly. If the machine has not been calibrated recently and/or the

test operator has not been properly trained the results can be even

less reliable.

Questioning the chain of custody – evidence collected in a

criminal investigation must be safely handled and stored to prevent

loss or contamination. If the chain of custody has been broken the

evidence cannot be admitted at trial.

Discrediting the officer – an officer’s testimony is often relied on

heavily by the State in a DUI prosecution. The average patrol officer

will conduct hundreds of stops each month and arrest several

motorists for DUI during the same time frame. By the time your case

reaches trial the officer will likely not remember any of the details of

your stop. A skilled defense attorney will capitalize on this by focusing

on how unreliable the officer’s testimony is in light of the fact that he

or she cannot remember important details about the stop and arrest.

Rising alcohol level defense – when you ingest alcohol the

alcohol absorbs into your blood. Depending on a number of factors

that absorption can take anywhere from about 45 minutes to three

hours. If you drank right before driving your blood alcohol

concentration, or BAC, was still rising at the time you were operating

your vehicle. Therefore, the results of the breath test you took some

time later at the station could provide a BAC level that was much

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higher than it had been when you were actually driving the vehicle.

This defense is referred to as the “rising alcohol level” defense.

If you have been arrested for a DUI in California it is essential that you

consult with an experienced California DUI defense attorney as soon as

possible to determine what defenses might be available to you.

NTHSA, Standardized Field Sobriety Tests

NHTSA, The ABCs of BAC

How Stuff Works, How Breathalyzers Work

ExpertLaw, Defenses to a Drunk Driving Charge

NOLO, DUI and DWI Defenses

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About the Author

Domenic J Lombardo

Domenic J. Lombardo, (Attorney at Law)

graduated from University of California,

Los Angeles (U.C.L.A.), earning a B.A. in

Economics-Business, before graduating

with his J.D. from University of California,

Hastings School of Law. He passed the

California Bar Examination on the first

try, and immediately began practicing as a

criminal defense attorney in San Diego,

California.

Mr. Lombardo worked as a defense lawyer at the San Diego Office of the Public

Defender from 1991 to early 1996.

Mr. Lombardo opened the Law office of Domenic Lombardo in 1996 as aa sole

practitioner dedicated entirely to the defense of individuals accused of crimes. And

while Mr. Lombardo works as the primary attorney for all his cases, he does have a

team of investigators, forensic consultants, and paralegals to call on to help achieve

the best possible result in every case.

When he is not working, Mr. Lombardo is an avid family man, triathlete, and world

traveler.

The Law Office of Domenic J Lombardo

The Executive Complex 1010 Second Ave., Ste. 1820

San Diego, CA 92101

www.AttorneyLombardo.com