How Can An Expert Assist In A DUI Case?

The defense of a drunk driving case is often multi faceted with many issues that can be pursued to develop a reasonable doubt.  Most of these issues involve science or the violation of regulatory requirements set forth by the state of California.  In fact, under California law if the government fails to perform the breath or blood test correctly it may rebut the presumption of reliability in the sample.

Most DUI Defense attorneys will tell you that defending a drunk driving case can be complex because of the science involved.  You see, in order to be effective in fighting DWI charges the lawyer must pierce the presumption that the breath test or blood test numbers from the police or lab are indeed accurate and reliable.  Here is how one well known attorney has described it:

"DUI cases can be quite complex when it comes to the chemical test aspects of the defense.  Both breath and blood tests often involve very unique scientific calculations that are difficult for the laymen to understand.  This is where an expert can help. The most common experts used in a drunk driving defense are forensic toxicologists who specialize in the interpretation of an individual’s blood alcohol level at a given point in time.  You see the breath or blood test you took will only tell you the level you are at when the sample was collected.  However, what is important is what the BAC was at the time of driving This is where a toxicologist can assist the attorney.  No one’s blood alcohol level remains constant over time, it changes, either going up or down within a certain period of time.  Importantly, when a person has drank alcohol close in time to the stop, he or she will usually be rising which means their particular BAC  will be lower at the time of driving, this helps the defense. Adjudging what a true blood alcohol level is at a certain time involves complex formulas that take into account absorption rates, burn off rates, and metabolism."

In addition to issues of rising blood, many cases involve situations where a cop or other person does not follow the proper procedures when collecting a blood or breath sample.  For example, the phlebotomist may fail to properly disinfect the puncture site or the collection might violate other state regulations.  Here, as well, an expert can be used to show how the procedures were not followed and explain why the violation affects the integrity and reliability of the sample. Hiring an expert can also be helpful in raising other defences such as contamination of a breath test by mouth alcohol or people that suffer from medical conditions such as GERD.

In some cases an expert in breath and blood testing can establish that the arresting officer failed to follow official standards such as California Code of Regulations Title 17 which dictates how breath and blood samples are to be collected, maintained and tested.  For example, in a breath case the officer may not comply with the mandatory continuous observation period prior to the breath test, codified in Cal Code of Regulations 1219.3.  If the officer does not follow these regulations the attorney can use that both at the DMV and Court to show the breath test results are unreliable.

Your Car's Computer Can Be Used Against You In A DUI Crash

In every DUI related car crash information about the speed of the vehicle, whether brakes were pressed prior to impact and other relevant evidence is often crucial in proving gross negligence.  In recent years the police have been getting creative in downloading data from the cars computer or SDM ( sensing diagnostic module) during their investigation. An SDM can provide important information about how the car was being driven moments prior to impact.

In one recent published opinion, People vs. Diaz, the Court noted the following:

"Every vehicle with air bags has an air bag control module that monitors a developing crash and, based on the information received, decides whether to deploy the air bags.   In addition, the module runs a diagnostic examination to make sure that its system is operating properly.   The module also has a function that records data and, after a crash, stores some of that data in the EDR, which is a component of the air bag control module.   For General Motors Corporation vehicles, this module is known as a sensing diagnostic module (SDM)․  In addition to recording such matters as the warning lamp status (which, when lighted indicates problems) and whether the driver's belt is buckled, an EDR captures information about the severity of a crash, known as the delta force or the change of speed, and the duration of the crash.   Moreover, the EDR records and stores four matters for a five-second period before a crash event—the vehicle speed, the engine revolutions per minute (RPM), the brake switch status (whether the brake has been applied), and the throttle position.“The SDM, which is controlled by a microprocessor, has multiple functions:  (1) it determines if a severe enough impact has occurred to warrant deployment of the air bag;  (2) it monitors the air bag's components;  and (3) it permanently records information.   The SDM contains software that analyzes the longitudinal deceleration of a vehicle to determine whether a deployment event has occurred based on testing that was done previously to determine what events would require protection by an air bag.   When the SDM senses an event (either a deployment event or an event that is not severe enough to require an air bag—that is, a near-deployment event), that information is recorded to the microprocessor's electrically erasable programmable read-only memory (EEPROM).   When the air bag is deployed, the SDM records the event as a ‘Code 51.’)   If the data from an EDR is properly evaluated, it can provide an impartial source of evidence for the reconstruction and biomechanics community to utilize"

Can Drug Withdrawal Equate To DUI?

It has long been accepted that a person who drives while impaired by a drug can be convicted of DUI.      In this recent case, however, the Court decided that a driver who is affected by the symptoms of drug withdrawal can also be impaired under the current laws in California.  As a Torrance DUI Attorney I have seen many cases where the Courts have allowed a prosecution for DWI when drugs were involved, this case stretches the limits of those laws and was likely influenced by the fact that 2 people died in the case.  Here are the facts of People vs. Jimenez:

Approximately 12 hours after he ingested methamphetamine, defendant drove his car. As defendant withdrew from the effects of the drug, he fell asleep, lost control of his car, and struck two pedestrians, killing them. A jury found him guilty of two counts of second degree murder and other offenses; it sustained allegations of prior DUI convictions. The trial court found a strike and other priors true. On appeal he claimed that "withdrawing" from the effects of methamphetamine does not constitute driving "under the influence" of the drug. The appeals court upheld the conviction. A person is under the influence of methamphetamine when, as a result of using the drug, his mental or physical abilities are impaired to a degree that he no longer has the ability to drive his car with the caution characteristic of a sober person under the same or similar circumstances. 

The Court found that Substantial evidence showed defendant smoked methamphetamine at some time before the accident and subsequently went into drug withdrawal, which resulted in defendant falling asleep at the wheel and killing two people. The prosecution did not need to prove that the defendant was in the first "excited" phase of intoxication. Defendant had three prior DUIs, had received judicial admonitions about the dangers of driving under the influence, and had attended classes in which he was warned of the dangers of drug-impaired driving. Substantial evidence supported the finding defendant drove while drug impaired with conscious disregard for life.   (Thanks CCAP).

DUI Hangover? What's Your Next Move.

For anyone facing the prospect of a looming DUI Court appearance the thoughts can be very terrifying and anxiety filled.  However, with the help of some good advice by a DUI Lawyer the future can look brighter and hopeful.

Most anyone who drives, at some point in their life they can be faced with a stop and arrest for being impaired by either alcohol or drugs or both.  In today's society the use of prescription drugs and even marijuana is prevalent and potentially illegal if mixed with the use of a motor vehicle.  Although the laws for substances other than alcohol are still in a state of flux, this doesn't stop the police from arresting anyone with the slightest appearance of over indulgence.

Here are the things you need to know right know:

1. If the arrest took place in California you need to take immediate action to protect your driving privilege.  Chances are you were given a temp license and that states you have 30 days to drive, but that doesn't mean you can't fight the suspension. Contact a lawyer right away so a hearing can be arranged with the DMV.
2. If the DUI involved alcohol there is an excellent chance your BAC may have been rising and therefore lower at the time of driving vs. the time you took the chemical test.  There are things you can do to increase your chances of success in Court and an attorney can spell these things out.
3. If you have a commercial license the consequences can be exponentially worse than if you have a non comm license.  Contact a lawyer immediately so he can arrange important dates to give you a better chance of prevailing and keep your commercial license.

What Should I Do If I Am Pulled Over For DUI?

This post is written for the benefit of those who are not currently facing a prosecution for drunk driving.  If you are looking at an upcoming Court case this article will do little to assist your defense. However, for anyone is interested in knowing the best way to interact with a police officer if you are pulled over and had been drinking earlier in the night, this article is right up your alley.  Very rarely does a lawyer give free advice on fighting a DUI but this information can help you to avoid being arrested in the first place, or if you are, significantly improve your chances of beating the case in Court.  Here is what you need to know:

1. The Red Lights in Your Mirror

You see the lights in your rear view mirror and begin to panic, don't, you should keep your cool and not show signs of nervousness.  Excessive nervousness or furtive movements will only make the situation worse. Slow down and Find a safe place to pull over, if the officer is directing you over a loud speaker, follow those directions.  Once you are stopped begin to collect your essential documents ( proof of insurance, license and registration) so that you have them ready and do not have to fumble with them while the officer is hovering over you.  Caution:  if your documents are not readily available do not panic.  The last thing you want to do is begin moving about the vehicle looking as though you may be trying to hide something or reach for a weapon.  Some believe it is best to not make any movements while the officer is approaching for fear that the cop may believe you are reaching for a weapon.

2. Initial Face to Face Contact

Once the officer is at your window this is where your actions can determine if the contact escalates into a full blown DUI investigation or you are simply warned, written a ticket and sent on your way.  Law enforcement is trained to look for "cues" to indicate a person is impaired by alcohol or drugs.  This observation begins when they immediately see you and lasts throughout the contact.  Cues can includes seemingly innocuous behavior but when viewed in the totality of the circumstances can become quite incriminating in a Court of law.

I Want To Hire An Attorney For My DUI But Do Not Have The Retainer, What Can I Do?

Fighting a DUI takes skill and expertise, that is why most folks decide to hire a lawyer to help them.  The problem is many people do not have the full amount of the retainer to hire a Law Firm, what can be done?

Many people do not know that they have a Constitutional right to hire the attorney of their own choosing if it can be done with reasonable probability.  In other words, you do not have to be stuck with a public defender if you have the means to hire private counsel.  Here is a step by step process on what you should do:

First, consult with the attorney you wish to hire.  Get the facts about what the cost will be and how payment can be made.

Second, figure out how you can make the payments and what must be done to get the necessary funds to hire the lawyer for your DUI case.

Third, on your Court date ask the Judge for time to hire private counsel.  This is your right and the Judge must allow a reasonable period of time for a person to hire their attorney of choice.  Be sure to have the details ready if the Judge asks how you intend to accomplish the engagement.  Give the Judge a specific name of a lawyer if he asks and be ready to tell the Court how much time you need and why.  Most Judges will allow a 30-45 day continuance if you appear to be sincere about your efforts to hire private counsel.

Once you obtain the continuance contact the prospective Law Firm and advise them of the new Court date and set an appointment to come in and retain the attorney when you have secured the necessary funds.

How To Get Your License Back After A DUI Arrest In California

Anyone arrested in California gets there license confiscated and cannot get it returned until they go through a DMV hearing or wait until the suspension is over.  In CA if you are a first offender and took a chemical test the suspension is 4 months.  If you hired an attorney and you had a blood alcohol level of .08 or higher he or she will tell you a way to get your license back without having to wait the full 4 months.

 Here is how you can get reinstated early, after you wait 30 days after the suspension:

First, get enrolled in a first offender DUI school called an AB541 class, they are all over the state and you can click here to find a class in your area.  DUI schools in California.
Tell the program provider that you wish to "self enroll" in the first offender DUI program for DMV purposes and that you have not been ordered to enroll from a Court, nor have you been convicted in the criminal Court.  They may want to see a current DMV printout called an H6 that you can get from any DMV office.  Call the program ahead of time and ask if you will need the H6.  You can also tell them that your attorney instructed you to enroll in the particular class therefore an H6 is unnecessary.

Next, get an SR22 which is a formal proof of insurance, for more information on this process visit our article on preparing for a DMV hearing.

Lastly, pay the required reissue fees with the DMV.

Once you have done all of these things you can get your license back to drive for work and school, it will remain restricted for up to 5 months.