Providing discreet and superior DUI defense for the discerning few since 1975.
If a DUI conviction is not an option; if a DUI conviction will destroy your life; then it is time to turn to a nationally recognized leader of the DUI Defense Bar—James Farragher Campbell.
The ABCs Of DUI Defense: A guide for those arrested
by James Farragher Campbell, ESQ.
About The Author
Forward | Introduction | Chapter 1| Chapter 2 | Chapter 3 | Chapter 4 | Chapter 5
CHAPTER ONE: YOUR ARREST And THE CHARGES (cont.)
What are the elements that the prosecutor must prove as defined under law?
Count 1 – a violation of Section 23152 (a) of the California Vehicle Code
Section 23152 (a) driving under the influence has two components: 1.) Driving; and, 2.) Being under the influence.
1.) DRIVING
On most occasions, you are pulled over by the police after he has followed you and observed how you were driving. However, in other situations, the element of driving becomes a much bigger issue from a legal standpoint. You may have been in an accident. You may have been stopped at the side of the road or even in a parking lot. You also may have been stopped at a roadblock. Maybe you were not even the driver of the automobile. All of these facts will need to be legally researched by a DUI lawyer because you may have some good legal defenses to assert in your case.
2.) UNDER THE INFLUENCE
The biggest problem you will have in the case are the results of the chemical tests. If you have a blood alcohol concentration, usually referred to as BAC, of 0.08% or more, then the prosecutor is going to try to use that test result as circumstantial evidence that you were at or above the legal limit when you drove the vehicle. In other words, they will try to be using this evidence to show you were impaired.
The law in California allows the prosecutor to rely upon a rebuttable presumption that if you were at or above the legal limit of 0.08%, at the time of your chemical test and, if that test was taken within 3 hours of your arrest, you were driving under the influence. For purposes of arguing your guilt to jurors on this count, the prosecution will also seek to introduce into evidence the quality of your driving – e.g., “weaving”, “speeding”, “going the wrong way on a one-way-street”, etc.
You can still present evidence to show that you were not under the influence, despite the test evidence, to rebut the presumption. And, you can still present evidence to show that the test evidence may not be accurate or reliable. There is also the possibility that your lawyer may be able to block the test evidence from being admitted into evidence altogether, thus weakening the prosecution’s case completely.
Count 2 – a violation of Section 23152 (b) of the California Vehicle Code
Section 23152 (b)driving with a blood alcohol level of .08% or higher, has two elements of proof as well: 1) Driving; and 2) being at 0.08% or higher at the time of driving.
1.) DRIVING
The driving element is the same as above in 23152(a) driving under the influence.
2.) 0.08% OR HIGHER AT THE TIME OF DRIVING
Now, this element is a little different than the other presumption used in the 23152(a) standard. Here, the prosecution must prove that at the actual time of driving you were at or above the legal limit. The prosecution may still use the rebuttable presumption of a chemical test within 3 hours of driving. However, if that test was not taken within the 3 hours, then this chemical test evidence is excluded and cannot be used against you for this statutory offense.
Also, though the test result may indicate you were above the legal limit, expert testimony may show that your BAC (blood alcohol level) was rising; therefore, at the actual time of driving you were below the legal limit. The chart below depicts a normal blood alcohol rise and fall (burn off). In essence, if you were tested before you peaked, i.e., while your BAC was continuing to go up, then you certainly would be at a lower BAC at the actual time of driving. If, on the other hand, you were tested long after you peaked, then you would be eliminating alcohol, indicating your BAC was actually higher at the time of driving.
In California, if you are arrested for a DUI, you are required to submit to a chemical test to determine your blood alcohol level. This is known as the “implied consent law.” In other words, when you were issued your driver’s license from the DMV, you agreed to submit to a chemical test if arrested for a DUI.
The chemical test consists of either a blood or a breath test. The arresting officer must give you the choice of blood or breath; you decide which of the two tests you want to take. If you were involved in an accident, the officer could limit your choice to only a blood test. This is usually done when the accident involves an injury.
If the arresting officer thinks you may be under the influence of a drug, then your choices may be limited to blood or urine. Urine tests are no longer used in California for alcohol testing.
The procedure leading up to the implied consent test is, again, an area of legal concern for your lawyer to examine. The procedural issues at play here can sometimes weaken the D.A.’s case even if the chemical tests results come into evidence. Other times, the chemical tests results may be blocked from evidence.
The DUI defense lawyer is basically trying to do one or both of the following: challenge the factual validity of the test results; and/or, attempt to prevent those test results from coming into evidence on legal grounds.
The law favors the prosecution with reference to the chemical test results because of the legal presumption that allows the prosecution to ask the jury to presume that you were under the influence at the time of driving if you have a blood alcohol concentration (BAC) of 0.08% or higher as shown by a chemical tests taken within 3 hours of your driving.
Obviously, your lawyer will be examining all aspects of the chemical test results. First, are they factually accurate? Can there be an interpretation of those results in your favor, for example a rising blood alcohol defense (you may be over the legal limit at the time of the test but not at the time of your driving). Secondly, the lawyer will look at all of your procedural defenses which relate to the admissibility of the test results. Was the test taken within the 3 hour time limit? Did the police follow to the letter all of the evidentiary steps for admissibility under Title 17? (Title 17 is the California Administrative Code that sets out the proper procedure to be followed in collecting chemical samples for admission into evidence in a court proceeding.) Was the operator qualified and certified to use the breath device? Was the breath device properly calibrated? Were there any maintenance problems prior to or just after your test? Did the blood sample have the proper preservative level? Was a non-alcohol swab used? And the list goes on and on.
Remember, the presumption goes both to the 23152 (a) count [driving under the influence] as well as to the 23152 (b) count [driving at or above 0.08%]. However, keep in mind that if any of the foundational requirements for the chemical test are challengeable and keep that result from being introduced as evidence, then the entire charge of driving at 0.08% or more may get dismissed. Even if not dismissed, a jury may choose to give the test result little if any weight in assessing the case against you. In other words, if the police did not follow the proper procedure, how then can we accept the test’s reliability?
Also, don’t forget you will also most likely have a license suspension matter before the DMV. This is not a criminal offense. It is a civil proceeding before an administrative agency, the California DMV. The matter before the DMV will be brought under the Administrative per se suspension law. This is almost identical to the per se criminal charge, 23152 (b) driving with a blood alcohol level of .08% or higher, which you will also be facing in the criminal case.