How to Beat a DUI: #1 Guide to DUI Defense (2024)

10. DUI police report errors & misconduct

Police officer misconduct can cause DUI charges to be dismissed or evidence thrown out if Police procedures aren’t properly followed, regardless of whether you were driving under the influence or not.

Some example issues include:

• Not following California Title 17 requirements
• DUI Police report errors, inaccuracies or missing information
• Fabricated, illegally obtained or manipulated evidence
• Police officer not giving truthful testimony in court

11. Mouth alcohol

Studies of Breathalyzers have shown that most cannot accurately distinguish readings for ethanol (ethyl alcohol) from other similar methyl group chemical compounds that can be in your mouth. DUI breath testers capture a sample breath of “alveolar air” from deep in your lungs.

This is key:

Equipment can also capture “mouth alcohol” that is not due to drinking alcohol. This causes an alcohol breathalyzer test results accuracy issue because the device can show a false positive high BAC level with little or no actual ethanol in your body.

Mouth alcohol can be caused by:

• Oral medications such as Anbesol, Vicks Formula 44, NyQuil and some cough drops
• Asthma inhaler ingredient Albuterol
• Breath spray and oral herbal tinctures
• Small amounts of alcohol soaked food caught in dental work
• Burping or regurgitating

12. GERD and medical conditions

Even the best Breathalyzer DUI breath tests are susceptible to false readings from the following medical conditions that can create mouth alcohol caused by acid traveling from the stomach to the mouth:

• Gastroesophageal Reflux Disease (GERD)
• Hiatal hernia
• Heartburn or acid reflux

13. Improper DUI sobriety checkpoint

While some believe sobriety checkpoints are unconstitutional and violate probable cause protections, the California Supreme Court ruled that DUI sobriety checkpoints are legal, administrative inspections similar to airport screenings exempt from 4th Amendment rules requiring probable cause.

Even though Police don’t need probable cause to stop drivers at sobriety checkpoints, they are subject to many strict legal requirements:

1. The criteria for stopping drivers has to be neutral.
2. Police should publicly advertise roadblock locations ahead of time.
3. The time and duration of the sobriety checkpoint should show “good judgement.”
4. The checkpoint must display sufficient indicia for its official nature to be clear.
5. Supervising Police officers must make the operational decisions.
6. Police should detain drivers for a minimal amount of time.
7. The checkpoint must be in a reasonable location.
8. Police must take adequate safety precautions.

If Police fail to meet these requirements, a skilled DUI lawyer can challenge any resulting DUI arrest.

14. Innocent reasons for DUI symptoms

Police officers often testify that you exhibited physical signs and symptoms of drinking such as red eyes, slurred speech or an unsteady gait.

But look:

These same physical signs can easily have innocent explanations that do not mean you were driving under the influence such as:

DUI SYMPTOM → INNOCENT REASON

• Slurred speech → Fatigue or stress about Police
• Red or watery eyes → Allergy symptoms
• Alcohol odor on breath → Illness, oral medication
• Unsteady gait → Physical injury
• Flushed facial skin → Sunburn or Rosacea

Innocent explanations can help create a reasonable doubt about the physical signs and symptoms.

5. Disconnect between BAC & actual impairment

Sometimes defendants exhibit little to no impairment but tests show a high BAC level. When this disconnect occurs, it is a red flag there’s a potential false positive BAC test result that may be inaccurate.

DUI defense attorneys can use this disconnect to effectively challenge the evidence and introduce a reasonable doubt about a critical element required to prove guilt.

16. Radio frequency interference

Breath test devices utilize electromagnetic and electrochemical technology to detect alcohol contained in a person’s breath.

These sensitive electronic devices are susceptible to radio frequency interference (RFI) and electromagnetic interference (EMI) that can cause them to indicate erroneously high BAC levels.

Devices that may cause RFI reading errors:

• Police radios
• FM and AM radios
• Microwaves
• Police radar units
• Cell phones
• Security cameras

Prosecutors and DUI criminalists are usually quick to point out that a DUI breathalizer may have an RFI detector to refute the presence of radio frequency interference.

The problem is, independent expert tests of the detectors have shown they are inaccurate and there are frequency ranges the RFI detectors simply cannot see. When devices emit interfering waves in those frequency bands, the RFI detector will not detect them.

17. Lack of mental impairment

Police officers typically claim defendants exhibited physical symptoms of being intoxicated such as slurred speech, red or watery eyes or an unsteady gait.

But it is key that:

California DUI laws define both mental and physical impairment. DUI experts have found that impairment from alcohol and drug consumption will always appear first as mental impairment.

So if a Police officer testifies that you exhibited physical impairment, but not mental impairment, DUI defence lawyers can refute the accusation that you were DUI per California 23152(a) VC.

The final three affirmative defenses involve the defendant admitting to DUI, but proving other facts that excuse or justify the criminal act under California law.

Affirmative defenses are rarely used and the burden of proof is on the defendant. However when the facts support it, the following affirmative defenses can provide a powerful defense at trial:

18. Involuntary intoxication

When a defendant is drugged by someone without their knowledge or unknowingly drinks intoxicating alcohol.

For example:

If someone spikes the punchbowl at a party and a defendant gets drunk as a result drinking what they believe to be punch.

However, you can generally only claim involuntary intoxication if you did not voluntarily take any intoxicating drugs or alcohol.

19. Mistake of fact

When a person has a valid reason to honestly believe they are not intoxicated.

An example mistake of fact would be if the defendant had provable reasons they thought the impairment effect of a prescription medicine was gone.

20. Necessity

In California the legal defense of “necessity” excuses DUI when a defendant must drive when it is done only to avoid a greater harm in an emergency.

Criminal jury instructions 3403 outline how the accused can be acquitted of DUI if they:

• Acted in an emergency to prevent significant bodily harm or evil to themselves or another.
• There was no adequate legal alternative.
• The DUI did not create a greater danger than the one avoided.
• AND, the defendant did not substantially contribute to the emergency.

BAC chart: Estimated blood alcohol chart

There are many factors that affect a person’s blood alcohol concentration (BAC) when drinking. The blood alcohol level charts below estimate the BAC effects of drinking based on the person’s: gender, weight and type of drink. Other factors can also affect BAC levels, such as: what food is in your stomach, your liver function and how much water you have consumed.

The California BAC limit for legal driving is:

• .01% or higher: If you’re under 21 years old or are on DUI probation for a prior DUI conviction
• .04% or higher if:
  • You are driving a passenger for hire vehicle with a passenger (i.e. Uber, Lyft and taxi drivers) effective 7/1/18, or
  • You hold a commercial driver’s license (CDL). This limit applies whether you are driving a personal or commercial vehicle.
• .08% or higher: If you’re an adult, 21 years of age or older and hold a standard California driver’s license with no restrictions.

The BAC levels California defined in the charts below are for adults aged 21 years or older that are not commercial license holders:

The DUI defense strategies outlined here can be used to fight a DUI in all states including: Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin and Wyoming.

Resources:

• New 2023 California traffic safety laws – DMV

Disclaimer

This information does not constitute legal advice and is not a substitute for individual case consultation and research. No representations are made as to the accuracy of this information and appropriate legal counsel should be consulted before taking any actions.  Contact us for a Free consultation regarding your case to see if Chudnovsky Law is the best DUI defense attorney for you.