If you were pulled over and arrested on suspicion of DUI, the police most probably have already confiscated your license and have given you a pink piece of paper. It is important for you to know the significance of this pink piece of paper and what can happen if you do not follow through with the steps that must be taken in order to recover your driver’s license. This pink piece of paper is only a temporary 30-day driver’s license.
The loss of your driving privilege in California is devastating!
It affects your transportation to and from work, school, child care and your mobility in general. If you received this pink slip, it is really in your best interests to contact our office as soon as possible since you have only 10 days to request the DMV hearing where recovery of your driver’s license may be possible.
At the DMV hearing the hearing officer, more often than not, will side with the arresting officer regarding the legitimacy of the conditions surrounding the arrest and you will probably not get your license back. Your best chance to recover your driver’s license at the hearing is to have an experienced DUI attorney to represent you. My many years of defending people accused of Driving Under the Influence (DUI) of alcohol or drugs and my extensive experience and knowledge of this crime, give me the tools I need to successfully defend you against these DUI charges.
Some of the defenses I might use in your favor are:
- Faulty or improper police arrest and investigation
- Problems with the breath testing equipment
- Incorrect reading of the test results
The California Vehicle Code allows for absolutely no “slack” or “lee-way” at all in the blood alcohol content of an underage driver. While a person 21 or over will not violate DUI laws (that is, California Vehicle Section 23152(b)) if he or she drives with a blood alcohol content of .07 or lower, a minor (20 years of age or under) is not allowed to have any measurable amount of alcohol in his or her blood at all, not even 0.01% under California Vehicle Section 23136.
If the underage driver is found guilty of violating this vehicle code section, he or she faces an automatic one-year suspension of the driver’s license. If the minor does not yet have a California driver’s license, the DMV will issue a one-year delay of the minor’s eligibility to lawfully drive.
If the minor refuses to submit to a chemical test, he or she faces a suspension of the driver’s license from one to three years. The length of the suspension is based on whether the minor has had any prior convictions under this California Zero Tolerance Law.
Be mindful that this vehicle code section is enforced civilly, not criminally. In other words, there is technically no jail time for this offense but the minor’s California driving privilege may be severely impacted.
In addition, the prosecutor will charge the minor under California Vehicle Code sections 23152(a): Driving While Under the Influence of Alcohol and also 23152(b): Driving with a Blood Alcohol Content of 0.08 or higher. A first-offense conviction for DUI can result in significant fines, lengthy probation, a lengthy alcohol program, license suspension and more.
An additional charge that you or your loved one may face as a result of prosecution for “Underage DUI” includes California Vehicle Code 23140 VC, commonly known as “DUI under 21 with a BAC of 0.05% – 0.07%.” Although this particular offense is only an infraction, it is yet another charge with which you will have to contend.
If you or your loved one have been charged with the above offenses pursuant to a “DUI Under 21” prosecution, you or your loved one may be facing the loss of your California driver’s license for one year. There are also other very costly and burdensome consequences. My extensive experience and knowledge in this field gives me the tools I’ll use to successfully defend you against Underage DUI charges.
If your preliminary alcohol screening test shows, for example, a level of .07/.08, and then a later chemical test shows .09/.10, we may be able to convince the prosecutor or a jury that your blood alcohol was actually below the legal limit at the time you were driving, but, that at the time you were tested, your body was still absorbing alcohol, thereby showing an “artificially” high reading.
In other words, your blood alcohol concentration may have been rising at the time of testing (because alcohol ingestion was not completed) and, therefore, your BAC level was actually lower at the time you were driving that it showed on the test.
Researchers have found that alcohol absorption can continue for an average of 50 minutes after a DUI suspect has stopped drinking. Tests (taken with Intoxilyzer models 4011A, 4011AS, and 5000) have consistently estimated blood alcohol levels at excessively high levels during this average 50-minute time period (when compared to analyzed blood samples). My extensive experience and knowledge gives me the tools I need to successfully challenge DUI charges in California.
There are a number of ways in which an experienced DUI attorney can attack chemical test results. Remember, the BAC Datamaster and the Intoximeter EC/IR, the primary evidentiary breath-analyzing devices used in the greater Los Angeles area, are just machines. As machines, breath alcohol testing devices have flaws, and their results should always be suspect. Your car can break down, your computer hard drive can crash, and so, breath alcohol testing equipment can also be faulty.
Malfunctions and defects relating to the equipment used to gauge your blood alcohol concentration can generate readings that are both inaccurate and unfavorable. Physical and medical factors and conditions can also produce falsely high results. These include, but are not limited to conditions such as hypoglycemia, gastroesophageal problems (such as Gastrointestinal Reflux Disorder, or “GERD”), the use of amphetamines, spiking blood sugar levels caused by diabetes, the production of isopropyl alcohol in your blood from eating a diet low on carbohydrates, inordinately slow or rapid rate of metabolism, body fat, and a host of other conditions and physiological phenomena.
I will never simply assume that breath results are accurate. I will thoroughly interview you regarding your medical history and lifestyle to determine whether any foreign substance or pre-existing medical condition may have affected your breath alcohol test results.
In a breath test, all accuracy records, maintenance logs, and usage logs for the machine in question should be carefully evaluated by an experienced professional, to determine whether or not the breath test equipment was in compliance with Title 17 of the Administrative Code. The breath testing device checklist and all materials referenced by the checklist, including the certification and qualifications of the operator must be carefully scrutinized. I will obtain and examine all of these records while preparing a defense for your case.
First, under California law, there is the legal definition of what it means to be “Driving” a vehicle. In the State of California, you are considered to be driving when you consciously do something that allows the car to move. If you merely decide to put the car in neutral gear for some reason and the car only moves a few inches, this is considered to be driving because you have made a conscious decision to do something which caused the car to move.
However, if you do NOT do something consciously to make the car move and it does move and accidentally damages someone’s car or property, then you would not be considered to have been driving under the law in California. Perhaps you were asleep in the car at the time and by accident, you moved the gear shift while you were asleep, then, because you did not consciously do something to enable the car to move, you would Not be considered to have been driving.
Even if you are not actually driving but while you are just sitting in the car and just resting, the car moves even a few inches after you have put it in neutral, that could be considered as “driving” even if the vehicle only moves just a few inches. It does not even have to move a great distance. That is because you had made the conscious decision to put the car into neutral gear.
In order to be convicted of DUI, California Vehicle Code Sections 23152 and 23153 both require that you actually have been driving a motor vehicle. But what things constitute driving?
In California, a driver is defined as “a person who drives or is in actual physical control of a vehicle.”
In Mercer v. Department of Motor Vehicles, the Supreme Court stated
“In everyday usage the phrase ‘to drive a vehicle’ is understood as requiring evidence of volitional movement of a vehicle. Any doubt about our understanding of the word ‘drive’ is dispelled by decades of case law holding that the word ‘drive,’ when used in a drunk driving statute, requires evidence of a defendant’s volitional movement of a vehicle.” This holding, however, was limited to the context DMV license suspensions for refusals.
However, since the Court has not yet set a definite standard on this issue regarding driving under the influence, it does seem that many of the courts in California are applying the standard set in Mercer v. Department of Motor Vehicles, to Driving Under the Influence charges. It seems that the standard has become Volitional Movement of a vehicle, even if only very slight movement, which might be proven by circumstantial evidence.
You are also considered to be driving under California law even if you, the passenger, are only steering the vehicle while the person seated in the driver’s seat merely has control of the accelerator and the brakes.
This situation might occur if the driver felt he had to take his hands off the steering wheel and his eyes off the road to do something else while you, the passenger took control of the steering wheel. In the unfortunate event that you had been drinking over the legal limit at the time, misjudged the steering and you inadvertently hit another vehicle, you, the person steering the vehicle, would be considered as “driving” under the law in the State of California. Therefore, you are the driver because you are the person who had control of the steering.
Our extensive experience and knowledge give us the tools necessary to successfully defend you against these DUI charges.
Most of the time this is not an issue because the police usually observe the DUI suspect actually driving the vehicle. However, on occasion, the arresting officer has not actually seen the person “driving.” Instead, the officer has probably found the DUI suspect asleep on the front seat of a car which is lawfully parked, keys in the ignition, with the transmission set to “neutral” and the headlights and wipers on.
The California Supreme Court drew a contrast between the term “drive,” normally understood to require there have been “volitional movement of the vehicle,” and the term “driver,” which CVC §305 defines as someone who is “either driving or in actual physical control.”
The Court said that the phrase “actual physical control” does not appear anywhere in the drunk driving offense statutes. Additionally, the Court also noted that because “driver” is defined as a person who drives or is in actual physical control, the two terms (drive vs. actual physical control) must have different meanings. Mercer v. DMV (1991) 53 Cal.3d 753.
Interpreting the law strictly instead of broadly, the Court held that being in mere actual physical control of a vehicle is not enough to constitute “driving.” Therefore, for purposes of the California drunk driving statutes, to be driving actually requires that the person exercise volitional movement of the vehicle.
Whether you were actually driving and whether there was direct proof of your driving are two separate issues. The prosecutor can establish that you were driving “circumstantially,” in other words, by inference from whether you were observed exiting the driver’s side of your vehicle, the warmth of your engine and other tell-tale signs.
On the other hand, merely being found behind the wheel of a vehicle is not surefire proof that you were driving. It could be shown that you had merely pulled over to rest, that your vehicle was turned off, that you had been sleeping, or there could be other facts indicating that you were in your car but had not been exercising “volitional movement of the vehicle.” Based on the circumstances of your stop, As a Torrance, South Bay and Los Angeles DUI lawyer, I may be able to successfully advance this argument and have your case dismissed before or at trial. My extensive experience and knowledge give me the tools I need to successfully defend you against these DUI charges.
“Alcohol is a substance that reduces the function of the brain, impairing thinking, reasoning and muscle coordination. All these abilities are essential to operating a vehicle safely.”
As alcohol levels rise in a person’s system, the negative effects on the central nervous system increase, too. Alcohol is absorbed directly through the walls of the stomach and small intestine. Then it passes into the bloodstream where it accumulates until it is metabolized by the liver. Alcohol level is measured by the weight of the alcohol in a certain volume of blood. This is called Blood Alcohol Concentration, or BAC. With a BAC of 0.08 grams of alcohol per deciliter of blood, crash risk increases exponentially. Because of this risk, it’s illegal in all 50 states, the District of Columbia and Puerto Rico to drive with 0.08 BAC or higher. However, even a small amount of alcohol can affect driving ability. In 2014 1,764 people were killed in alcohol-related crashes where BAC was less than 0.08 BAC. BAC is measured with a breathalyzer, a device that measures the amount of alcohol in a drive driver’s breath, or by a blood test.
Driving After Drinking
Driving after drinking is deadly. Yet it still continues to happen across the United States. If you drive while impaired, you could get arrested, or worse — be involved in a traffic crash that causes serious injury or death. Approximately one-third of all traffic crash fatalities in the United States involve drunk drivers (with blood alcohol concentrations [BACs] of .08 of higher). In 2014, there were 9,967 people killed in these preventable crashes. In fact, on average, over 10,000 people have died each year (2010 to 2014) in drunk-driving crashes.
In every State, it’s illegal to drive with a BAC of .08 or higher, yet one person is killed in a drunk-driving crash every 53 minutes in the United States.
Men are more likely than women to be driving drunk in fatal crashes. In 2014, 23 percent of males were drunk in these crashes, compared to 15 percent for females.
Take these steps to prevent drunk driving:
- If you will be drinking, plan on not driving. Plan your safe ride home before you start the party. Designate a sober driver ahead of time.
- If you become intoxicated, do not drive for any reason. Call a taxi, using a ridesharing app such as Uber or Lyft, phone a sober friend or family member, use public transportation, etc.. Also, try NHTSA’s SaferRide mobile app, which allows users to call a taxi or friend and identify their location so they can be picked up.
- If someone you know has been drinking, do not let that person get behind the wheel. Take their keys, take them home, or help them arrange a sober ride.
- If you see an impaired driver on the road, contact your local law enforcement. Your actions could help save someone’s life.
Because the urine test is less accurate than either the blood or breath test, you can only choose the urine test in the rare situation that both the blood and breath tests are not available or not working properly.
Do not take the breath test if your last drink was less than one hour before being tested. If it’s less than an hour before your last drink, your body is still absorbing alcohol and in that case, while your body is still absorbing the alcohol, the test will give an exceptionally high level. So, in this case, you are better off taking the blood test.
There are certain medical conditions which excuse you from taking a blood test.
If, for example, you have a heart condition and are taking certain medications such as an anticoagulant then you do not have to take a blood test. If you have hemophilia you are also excused, under California law from taking a blood test.
Because under the law you are rightfully entitled to “full information concerning the test”, then you are also entitled to an explanation, in writing, outlining how the analysis was done. You or your criminal defense attorney should send a letter as soon as possible, requesting this information as well as requesting a portion of your preserved blood sample (if a blood test was taken), to be tested by an independent laboratory.
Another defense that your defense attorney might use is to show the court that the field sobriety tests are not always accurate in measuring a person’s impairment. Generally, you will probably not perform very well on the field sobriety test so, in that case, your lawyer will ask the officer to testify regarding the many ways that you did perform correctly. In that case, the number of things you did correctly will be much more than the things that you did not do correctly.
Your lawyer will also question the accuracy of the tests that you were given. Such as the Horizontal Gaze Nystagmus Test, the finger to nose and one leg stand test.
Nystagmus is a condition of the eyes in which the eyes make uncontrolled and repetitive movements. These involuntary movements can be from side to side, up and down or in a circular manner. This can result in impaired vision and also in your depth perception. It is also possible that it could affect your coordination and your balance.
He will question as to whether or not the officer had a reasonable suspicion to stop you or even if he had probable cause to arrest you. Any violations of California Title 17 can have an affect on the result of your DUI case. Your lawyer will also investigate any possible acts of police misconduct or shoddy police work in maintaining accurate breath and blood test equipment.
The purpose of California Title 17 is to ensure that DUI blood or breath tests are as accurate as they can possibly be. A violation of the proper procedures which were established in Title 17 can result in inaccurate results. Thus, your lawyer might argue that there were Title 17 violations in your case.
Nystagmus is the technical name for the condition which produces an involuntary jerking of the eyeball. A horizontal gaze nystagmus is when there is a horizontal jerking motion of the eye when the person looks from side to side. Both Nystagmus and Horizontal Gaze Nystagmus can be caused by a variety of things including alcohol consumption or the use of any other drugs which depress the central nervous system. Some of these could include inhalants or phencyclidine (angel dust which has hallucinogenic effects) These types of drugs minimize the brain’s ability to control the eye muscles properly.
When alcohol is present in the body, the result can be seen in the jerking or bouncing movements of the eye and the higher the BAC, the more noticeable the nystagmus. In the Horizontal Gaze Nystagmus test given by a police officer, he will generally place an object, such as a pen, or possibly his finger about 12” away from the face of the driver. He will then move the object from side to side as he watches the eye movements of the driver. As the officer is watching the driver’s eyes as they follow the object from side to side, the officer estimates the angle at which the jerking movements of the eye begin.
When jerking movements in the eyes begin before the driver’s gaze reaches a 45-degree angle, then it is an indication of a possible BAC over .05%. The officer will also note the stability of the eye when the gaze is as far to the side as it can possibly move.
Although the Horizontal Gaze Nystagmus test has been shown to be extremely accurate and is widely used by the police, your attorney can still try to challenge it in court. He can argue that the police officer who gave you the test was not trained medically and that his ability to assess the angle at which nystagmus occurs is lacking.
A blood sample that is simply sitting around in an untested state will decompose because of the action of its enzymes and bacteria. As it decomposes, it creates a certain amount of alcohol so that even in a blood sample that originally did not contain any alcohol, it will give a reading of some percentage of alcohol depending upon the amount of time that the sample was just ‘sitting around’
In order to prevent this decomposition and the resultant creation of alcohol, blood specimens are generally refrigerated. Unfortunately, refrigeration only slows the creation of alcohol in the blood specimen. It does not completely stop it. In order to completely put a halt to the alcohol production in the sample, certain preservatives should be added. Unfortunately, preservatives are not always added.
They found the content of alcohol in the blood from an artery was greater than that from blood taken from a vein while the alcohol was being absorbed by the body. They also observed that the samples taken from veins had a higher BAC than that taken from an artery during the time the alcohol was being eliminated.
Scientists have concluded, after much research and testing, that blood samples taken from a vein do not correctly show the quantity of alcohol that is going into the brain and is therefore, not a valid barometer of the subject’s actual intoxication.
There is a specific name for this scientific, mathematic method which is used by toxicologists in trying to figure out what a person’s BAC had been at an earlier point in time. It is called Retrograde Extrapolation. This method is frequently used to figure out if a person might have had a BAC of at least 0.08 while driving, but based upon the results at the later time of the testing.
In many Los Angeles County DUI cases it has been shown that retrograde extrapolation is not an exact science and has definite flaws. An experienced criminal defense attorney will point this out to a jury in the event a case does go to trial. He can then point out that it was only a guess that the alcohol absorption process was complete and that the elimination of the alcohol is always at a given predictable rate. This is because there are various reasons why the rate of alcohol absorption can differ such as the person’s body temperature, how much food the person has eaten, the type of food the individual had eaten, a disease the individual may have, the sex and even the weight of the person.
He can also show that the expert does not really have enough information available to him in order to make his determination and that he is only making assumptions. The expert is assuming that the alcohol was completely absorbed at the time of the test and that the defendant eliminated the alcohol from his system at what is considered to be an average rate. In addition, the expert is also assuming that the chemical test was properly done. As an individual is drinking alcohol, the level of alcohol in the blood rises while the alcohol is being absorbed into the person’s system. As the alcohol is being metabolized and eliminated by the body, the blood alcohol level then falls.
Research has shown that blood alcohol levels do not rise and fall in a predictable manner. It is also necessary to know that all of the alcohol consumed by the individual has been completely absorbed and is currently falling. The alcohol absorption rate is quite unpredictable and can take from about fifteen minutes to three hours after the last drink. The prosecution expert making this retrograde extrapolation should state all of the assumptions and best guesses he had made when coming up with his conclusions.
When alcohol is ingested it first goes through the stomach and into your blood. Some of it will be absorbed by the lining of your stomach and continue into your bloodstream. Stronger alcoholic drinks will be absorbed faster than drinks that are not as strong. Various carbonated and fizzy drinks will speed up the absorption process due to the action of their carbon dioxide which accelerates its entry into the small intestine.
The time that you have eaten is also a factor to be considered because the less food eaten, the faster the alcohol gets into your bloodstream. For this reason, it’s never a good idea to drink on an empty stomach. Then, about two thirds of the alcohol continues onto the next part of its journey from your stomach through your bloodstream, into the small intestine.
Your BAC determines the effects on your brain. Alcohol is a depressant and does different things in different parts of your brain.
When your cerebral cortex, the part of your brain which is responsible for processing your thinking is depressed from alcohol, you become less inhibited, much more chatty and overly confident. Your judgment becomes affected and your thinking starts to become really fuzzy. In addition, there is difficulty in your ability to see, to hear and even to feeling pain. All of this is a result of the alcohol negatively impacting your brain’s ability to process information correctly.
Alcohol also affects the part of your brain that is in charge of your memory and your emotions. That is why you may become lost or not remember events that occurred during or after the time you had been drinking. The part of your brain that controls your muscles is also affected, so you start to become uncoordinated and you also experience loss of your balance.
Your heart is affected because alcohol makes your heart beat faster. This is because it makes your blood vessels relax so that more blood is flowing through your system. While this is happening, your blood pressure begins to lower and in order for all of the organs in your body to receive all of the blood they require, your heart starts beating faster in order to accomplish this.
Your kidneys are also affected by drinking alcohol. Their function is to filter waste products from your blood and out of your body while healthy elements needed by your body are kept in the blood. Your kidneys also are responsible for maintaining a normal and constant level of water in your body. However, alcohol will increase the amount of urine produced by the body and when someone drinks too much alcohol, their body expels more water than it takes in. When this happen, a person becomes dehydrated with a very dry throat, a headache, a feeling of being sick to your stomach and wanting to vomit and just feeling really tired.
When the alcohol in your blood gets to your lungs. Some of it will evaporate into the little air sacs in your lungs and will be pushed out of your body as you exhale each breath. It is this exhaled alcohol from your lungs that give a person that very unpleasant alcohol breath.
Drinking too much alcohol gives a person a very flushed, and sweaty appearance because it increases the amount of blood flowing to the skin. Tiny bits of alcohol can seep out through the pores of your skin so that your perspiration also smells from alcohol.
The liver has an important function in metabolizing your body’s alcohol. Approximately 90% of the alcohol that you take in will leave your body because of the work of your liver. It breaks the alcohol down into a chemical which is recognized by your body as a toxic chemical through several stages, and finally into carbon dioxide and water which your body can then expel.
The liver can only metabolize the amount of alcohol in one drink each hour. How quickly alcohol in your body is broken down depends upon the weight of a person, and also their gender. For this reason, there are some people who can still have alcohol moving through their blood for up to three hours after taking one drink. If you drink more alcohol than your liver can comfortably handle, your blood alcohol level keeps rising, making you feel sick, slur your words and even make you pass out. The small amount of alcohol that is not processed by your liver, about ten percent of it, will simply go through your body and be excreted through your sweat, your breath and your urine.
That terrible hangover that one experiences the morning after is because more alcohol had been consumed than the body could handle and much fluid, minerals and vitamins were lost.