DUI Defense FAQ's


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What is a DUI in California?

California DUI Information, California Vehicle Codes:

If a person gets arrested for a DUI in California they are in most cases charged with two separate offenses.  These offenses are (a) Driving under the influence of alcohol or drugs pursuant to California Vehicle Code § 23152(a), and (b) driving with a blood alcohol content of .08% or greater pursuant to California Vehicle Code § 23152(b).

The two sections of the code are different and looking at the two separately you should note the following information:

To convict a person accused of DUI in California under CVC §23152(a) the government must prove: (a) that the person drove a motor vehicle, and (b) that the person was under the influence of alcohol or drugs at the time they drove.

(a)  Driving a motor vehicle:  Looking further at these elements of the crime you should note that to drive means that there has to have been some movement, even slight movement, of the vehicle; and the government may use circumstantial evidence to prove this element.  For further reading on this topic you may want to read People v. Wilson 176 Cal.App.3d Supp. 1 (1985) and Henslee v. DMV 168 Cal.App.3d 445(1985).

(b) Under the Influence:  according to the law a person is deemed to be under the influence when as a result of consuming alcohol or drugs their physical or mental abilities are impaired to such a degree that they no longer have the ability to drive with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances.

  • (1) Type of Drugs causing the impairment makes no difference.  For the purposes of the DUI statute it does not matter if the drug causing the impairment was an over the counter allergy remedy, a prescribed pain medication, or some illegal drug.  The bottom line question is was the person driving, and where they under the influence of some substance that impaired their driving abilities so that they lacked the same judgment characteristic of that of a sober person.

Contrast the above now with CVC §23152(b), under which, to convict a person the government must prove (a) that the person drove as discussed above, and (b) the person had at the time they were driving a blood alcohol content that was .08% or greater.

In defending against this charge it is critical that your attorney pay close attention to the details surrounding the facts and circumstances of the period of time before you were stopped by law enforcement, and the particular details surrounding the circumstances of the actual stop.  It is actually quite common that a skilled attorney may identify weaknesses in the prosecutor’s case and is able to breathe life into the case in a manner that allows the defendant to either be sentenced at reduced charges, or in some cases persuade the prosecutor to dismiss the charges altogether. 

What are the typical defenses to drunken driving charges?

Substantively Defending the Client

  •  According to rough estimates stated by the District Attorney’s office, nearly 90% of those charged in San Diego County are ultimately convicted in connection with their charges.  The supermajority, if not greater portion of those convictions making up the 90% are convictions resulting from plea bargains.  As it relates to drunken driving charges, while often prosecuted by the City Attorney’s office, the majority of DUI cases are ultimately resolved in a similar manner.  The reasons for this vast and range from actual guilt, inability to afford an adequate factual investigation so as to mount a defense, and simple risk-reward analysis.  Depending on the terms of the subject plea agreement, there may be little or no justification for taking the risk of being convicted after a trial.
  • Successful negotiation of a DUI charge to an alternative charge, or lesser included offense, with lesser sentencing conditions is not automatic when an attorney is retained.   Rather, the attorney must in the course of his representation, assess the facts of the case, the client’s economic limitations, or lack thereof- as it relates to defensive maneuvering, the client’s expectations considering the facts, the plausible defenses, some of which are discussed below, and the likelihood of conviction if no agreement is reached.  In doing so, the attorney then formulates a strategy to fight the charge and build a defense that will motivate the prosecutor to consider entertaining a suggested plea agreement which may include dropping or reducing the charges, and the prevention of license suspension.
  • Because the penalties for DUI charges can be extremely serious, one charged with a DUI may be faced with the reality that fighting the charges by way of a jury trial is the only real hope of potentially avoiding those penalties, if the trial is a defense success.
  • Of course, there are some instances where the charges simply are not supported-whether because of a client’s factual innocence or clear lack of evidence; and where a prosecutor is able to come to this reality, trials are necessary to establish such.


Procedurally Defending the Client

  • Disproving the elements of the crime generally includes disproving those predetermined elements of the crime.  In the DUI context we are talking about disproving with facts and evidence that the person charged: (1) drove a vehicle and (2) at the same time was under the influence of alcohol or drugs, or had a blood alcohol concentration level of .08% or greater.  “Driving” has a technical definition under the law, as does the word vehicle.  Further, to be “under the influence” has a technical meaning under the law.
  • Identifying evidentiary challenges are critical at the onset, where a prosecutor is stripped of evidence whether it is because the evidence was illegally or improperly obtained, or the evidence is challenged because of its validity or veracity, the ability to keep evidence from being introduced at trial is a fundamental consideration both in the initial stages of the case, and the trial stages.  These challenges arise out of faulty or improperly maintained measuring instruments by law enforcement, failing to follow lab or processing protocols, failing to have probable cause to arrest the client, or obtaining evidence as the fruit of some other unlawful or inappropriate conduct of law enforcement.
  • Challenging the credibility of the arresting officer whose testimony is quite often the lynchpin of the state’s case, is a critical defense tactic.  Jurors are sensitive about deception, and if they believe the officer is being deceptive, they often detect it, and penalize the prosecution.  In some cases, justice will require an acquittal or dismissal where the officer’s credibility is impugned, and in other cases, where it merely muddies the waters, jurors have been known to nullify the prosecution.
  • Some other technical defenses include attacking other procedural failures of the arresting officer such as failing to provide the client with certain advisals, the effect of food consumption or medication on test accuracy, or testing during the absorptive phase of the alcohol entering your blood stream.

When all is said and done, despite the advanced disclosures and discovery that takes place before a criminal trial.  Criminal trials are still unpredictable, and anything can happen.  Making a decision to try a case should be carefully deliberated with legal counsel who has assessed the entirety of the case, and who has counseled the client on the various dynamics of the given case including the economic limitations, if any, of the client, and the risks and potential benefits of such a decision.