Challenging DUI Charges



Challenging DUI Charges

Posted By Evan E. Zelig || Aug 24, 2017

In California, there can be many ways to challenge a DUI charge. If you are arrested and charged with a DUI, you shouldn’t hesitate to contact a qualified DUI attorney to begin your defense. Learn more about some of the common ways to challenge a DUI charge, and discuss your case with your lawyer to find an effective defense strategy for you.

DUI Breath Test Errors

When administering a breath test after stopping a driver who is suspected of a DUI, the officer must take steps to ensure that the reading is correct and accurate. These tests are the most common way to measure a driver’s blood alcohol content (BAC), but they may not be the most accurate. Breath tests do not directly measure the amount of alcohol in your blood, but rather the amount present in your breath. Different factors can cause inaccurate readings, including:

  • Instrument malfunction
  • Improper handling
  • Physiological conditions, such as diet or illness
  • Environmental factors

Mouth Alcohol

When a breath test is conducted, the driver is asked to breathe into the unit, which is designed to sample breath from the lungs, known as alveolar air. It is possible that the test may also register alcohol that is still in the mouth, rather than in the alveolar air. Mouth alcohol can occur due to:

  • Alcohol-soaked food trapped between teeth
  • Regurgitation or burps after consuming a small amount of alcohol
  • Mouthwash or breath spray containing alcohol
  • Chewing tobacco
  • Medical conditions, such as acid reflux

GERD, Acid Reflux and Hiatal Hernia

Certain medical conditions can cause mouth alcohol, which may lead to a false reading. Conditions can allow alcohol to travel from your stomach to your mouth, which can mask the true reading of an alveolar air sample. Conditions that may interfere with breath tests include:

  • Acid reflux
  • Heartburn
  • Hiatal hernia
  • Gastroesophageal Reflux Disease (GERD)

Ketosis as a Result of Diabetes or Low-Carb Diets

When a body is deprived of carbohydrates, it will turn to stored fat for energy. Low-carbohydrate diets are popular for weight loss for this reason, but also are used to help control the symptoms of diabetes. When the body burns stored fat, it will produce a byproduct called ketones. When ketones are eliminated from the body, they are converted to isopropyl alcohol and eliminated through sweat, breath, and urine. Breath tests cannot distinguish between the naturally produced isopropyl alcohol and the ethyl alcohol that was consumed and may read higher than is accurate.

Rising Blood Alcohol

As alcohol is absorbed into the blood stream, a driver’s BAC continues to rise. It can take around 50 minutes for the alcohol from a drink to be fully absorbed. If you are pulled over shortly after consuming a drink, you may be below the legal limit at the time of the stop, but over the limit by the time a test is conducted. This is particularly a concern when you are tested at the station with a blood or urine test. Your BAC may continue to rise between the stop and the test, as your body continues to process the alcohol. Legally, the relevant measure is your BAC while you were driving, not what your BAC was at the time of a much later test.

DUI Blood Test Errors

Failure to properly collect, store, and test a blood sample may cause the results of your blood test to be called into question. A “blood split motion” can be made to learn more about how your test was conducted and your sample was stored. If your test was found to be faulty, your attorney may move to have the results dismissed from evidence, which can turn a case greatly in your favor. Inaccurate blood tests may be caused by:

  • Blood fermentation
  • Improper sample storage
  • Blood contamination

Title 17 Violations

The California Code of Regulation provides requirements for the collection, storage, and analysis of DUI chemical tests. These regulations are highly specific, and if they are violated, your test may not be admissible as evidence.

Lack of Probable Cause for a DUI Stop

Law enforcement officers must have a reasonable suspicion that you are impaired to stop you for a DUI. Known as probable cause, an officer may not stop you, detain you to investigate, or arrest you without having a reason to believe that you were engaged in illegal activity. Without probable cause, any evidence obtained in a DUI stop may not be used against you in court.

Innocent Explanations for Physical Signs of DUI

Officers are trained to look for physical signs of a DUI before conducting a breath or field sobriety test. These signs include bloodshot eyes, slurred speech, flushed skin, unsteady gait, and the odor of alcohol. There are other causes for these signs, however, which may be completely innocent. Allergies, illness, sun exposure, and fatigue can produce a combination of symptoms that may mimic intoxication.

Inaccuracy of Field Sobriety Tests

Field sobriety tests are notoriously inaccurate at detecting impairment and may be influenced by a number of factors. These outside interferences may cause a driver to fail a test, even without ever having a single drink. Factors that may affect a field sobriety test include:

  • Officer-induced intimidation
  • Poor weather conditions
  • Poor lighting
  • Uneven surface conditions
  • Inappropriate footwear, such as sandals, heels, or boots

BAC Over the Legal Limit Not the Same as DUI

There are many factors that affect an individual’s BAC, and it is possible for a driver to have a higher-than-legal BAC and still not be impaired. Conditions that can cause an inaccurate reading can include:

  • Errors made by testing equipment
  • Errors in obtaining samples of blood, breath, or urine to test
  • Medical conditions
  • Time of last alcohol consumption

BAC Doesn’t Accurately Reflect Impairment

If your BAC does not reflect your level of impairment, it should be a reason to doubt the accuracy of the reading. Sometimes called a disconnect DUI case, the difference between your obvious state of impairment and your BAC reading indicates that the evidence cannot be trusted. It may be possible to have the evidence disregarded in your case.

Your DUI Defense

There can be many ways to fight your DUI charges, but it is important to speak with an experienced DUI lawyer who can help you choose the best and most relevant defense strategies for your case. Your attorney will work to have the evidence against you dismissed, and can find ways to call the evidence and the arresting officer’s testimony into question.

At the Law Offices of Evan E. Zelig, P.C., we are dedicated to protecting the rights of our clients. Our award-winning Santa Rosa DUI attorney can help defend you from your charges, and we work to ensure that every client receives tailored legal representation and a unique approach to their case. We don’t believe in one-size-fits-all defense.

Begin your defense today! Contact our offices by calling (707) 418-5352 to request a free consultation.

Categories: DUI

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