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Top 20 Ways to Beat a DUI

I know you’re looking for a magic bullet here to beat your DUI.
And believe me, my job would be a lot easier if there was one all-purpose approach I could strut into court waving and have my client’s cases dismissed.
However the fact is, there are many different ways to challenge and beat DUIs depending on your particular situation. Just a few examples include… was the person arrested at a DUI checkpoint? Was s/he originally pulled over for weaving ‘within’ their lane…. and if so… how much weaving took place and for how long did the weaving last? Was the person pulled over for changing lanes without signaling? And if so, was anyone ‘behind’ the car…. including the officer? Was the person originally pulled over for exceeding the speed-limit? Did the person have a tail-light or some other vehicle light out?

Each situation brings its own possible foundation to base an attack on a DUI arrest. So if someone tells you they can beat your DUI without performing an in-depth investigation of all the details and evidence of your case, I’d be very skeptical of that attorney.

That being said, here are (generally) the Top 20 Ways to beat a DUI, or the Top 20 Ways a DUI can be attacked.

1 – The Officer’s “Detention” Was Unlawful in Your San Diego DUI

Our Constitutional Rights are pretty powerful and are actually “the Rule”… of which there are narrowly defined exceptions. Not the other way around. As an example, since the 4th Amendment protects our freedom of movement, the officer who initially detained you must have had more than “a hunch” and, taking into account the totality of the circumstance, must have a sufficient amount of articulable facts to provide support as to why his “suspicion” that you were driving under the influence – or had committed some other crime – was “reasonable” at the time he chose to pull you over, i.e. “detain” you. (Terry v. Ohio).
Additionally, facts to support the officer’s reasonable suspicion cannot come from facts the officer discovered ‘after’ they pulled over. If the officer’s suspicion can be shown to have been unreasonable or unsupported by a required amount of facts, all evidence acquired as a result of that initial unsupported and unlawful detention cannot be used against you in court. (Mapp v. Ohio, Wong-Sun). Retaining a San Diego DUI Defense attorney that has an in-depth understanding of what it takes to challenge the initial detention is invaluable and can mean the difference between a conviction, and a successful DUI Defense.

2 – The officer’s illegal “search” lead to items supporting an unlawful arrest in Your San Diego DUI

A “search” includes drawing blood from someone. There are only a few strictly defined situations where an officer may “search” a person. Absent one of a few narrowly defined exceptions, the following are the governing rules:
If the officer did not have sufficient reasonable suspicion to even “detain” a person, any evidence (including blood-alcohol evidence) that is found as a result of searching that person (via blood or breath testing) will not be allowed in court.
If the officer only had reasonable suspicion to ‘detain’ someone, the officer may not “search” that person unless the officer also has reason to believe that person is “armed” as well – not merely to test for alcohol.
When an automobile is involved, absent probable cause, the officer may not search the car unless the person has been arrested, and in such case even then the area which the search spans is limited.

The point being that if the officer did not follow the rules correctly, the evidence the prosecution has against the person may be challenged in what’s called a “1538 Suppression Hearing” where a “1538 Suppression Motion” is submitted prior. It is very important to find an attorney that knows the system, the rules, and how to find and bring to light the facts that can support a successful challenge to your San Diego DUI.

3 – The “Arrest” Was Unsupported by the Requisite Cause in Your San Diego DUI

The level of facts an officer must know in order to make a lawful ‘arrest’ is not the same as the amount of information that must be known to an officer to support the officer’s mere ‘detention’ of the same person.
In order to support a mere ‘detention’ the officer must only know enough facts to support a reasonable suspicion that the detainee is involved in criminal activity. However, if the officer doesn’t have enough facts/information to support a reasonable belief that the person “more likely than not” is/has committed a crime (such as drinking and driving) the officer’s ‘arrest’ of the person will be found unlawful and all evidence (such as blood or breath evidence) acquired as a result of such unlawful arrest will not be allowed to be used against the person in court. In other words, if the officer did not have ‘probable cause’ to make the arrest all evidence acquired as a result of that unsupported/unlawful arrest will be excluded.
You can bet, the prosecution is going to try and stack the facts in favor of supporting the lawfulness of the officer’s arrest. In situations where the officer’s level of ‘cause’ to make the arrest is a close-call, an attorney with the training, experience and knowledge to attack the facts which support the officer’s arrest, is invaluable and can mean the difference between the prosecutor getting their conviction or the prosecution having to dismiss the case for lack of evidence.

4 – Weaving within your lane was not a valid reason for the officer pulling you over in Your San Diego DUI

The 4th Amendment protects our rights against unreasonable seizures. Being pulled over (seized) for an amount of weaving within the lane that did not give the officer enough reason to believe that you were under the influence while you were driving, will provide the basis for a an attack of your DUI arrest. Such an attack can lead to all evidence against you (such as your blood and/or breath test results) being thrown out, leaving the prosecution very little (if any) evidence against you, which will likely lead to your case being dropped. This attack requires not only a great deal of knowledge and experience with the California Motor Vehicle rules, but also extensive knowledge and experience with the case-law that governs the court’s decisions regarding this area.

5 – The Checkpoint You Were Arrested At Was Unlawfully Operated in Your San Diego DUI

DUI Checkpoints are a narrowly carved out exception to our right to be able to go about our way on the road without being unreasonably harassed or detained. The United States Supreme Court case in Sitz created the narrow exception. Subsequently, the Supreme Court case Ingersol v. Palmer found that the short detention of motorists by Police without the presence of the officer’s (generally required) reasonable suspicion that the driver is involved in criminal activity does not violate people’s 4th Amendment Right IF the proper guidelines are followed by Police.

6 – A Driver May Not Be Pulled Over Because of a Report to Police Made By An Anonymous Caller in Your San Diego DUI

The United States Supreme Court has identified the boundaries of when a call to police reporting a drunk driver made by a person wishing to remain anonymous, can support a valid detention of a person and when it can not (People v. Wells). If you were pulled over because of an anonymous tip made to police, and it can be shown that the facts regarding your case do not satisfy the requirements set out by our Supreme Court and case law, then the evidence acquired as a result of that stop will not be allowed to be used against you.

7 – California’s Standard Field Tests Are Inaccurate Indicators of Impairment in Your San Diego DUI

Even in ‘healthy’ individuals, the one-leg stand, the walk-and-turn test, as well as other driving-under-the-influence tests performed in the field have been shown to only be between 65% and 77% accurate at impairment detection. Additionally, people with injuries, disabilities, physical limitations, or variables that also may skew the results such as weight or age, can also decrease the reliability of such a test. These already attackable percentages decrease significantly if the test was administered incorrectly.
Police officers are human. There are many times they forget to ask about limitations or forget to take into account such relevant variables, or made a mistake in administering the test.
An attorney who is intimately familiar with how these tests ‘should’ be administered will know how to spot the most important variables and/or the officer’s incorrect administration of such a test and will know how best to expose the unreliable results.

8 – Non-Standardized FSTs are Inaccurate Indicators of Impairment in Your San Diego DUI

If ‘standardized’ field tests can lead to attackable results, field tests that have ‘not’ been recognized as standardized by the Federal Government (NHTSA) or the medical community, such as touching your nose or reciting the alphabet or counting backwards, create an even greater window of opportunity to an attorney that has much experience in this field. An experienced attorney will know which field tests are supported by NHTSA as well as the correct administration of them. If either (or both) provide a foundation to challenge the results of the test, an attorney experienced in DUI Defense will take full advantage.

9 – Breath Tests Are Inaccurate in Your San Diego DUI

Almost all experts agree, and case law has shown, that one breath test alone cannot provide a reliable basis of breath-evidence against you. Additionally, because of the extrapolation that must be performed to turn the amount of alcohol in a person’s ‘breath’ into a number that represents the amount of alcohol in someone’s ‘blood’ is subject to a variance (non-specificity for ethanol, etc.) that can be as much as +/- 12.5%.
Furthermore, there are requirements regarding the calibration of the breath-test equipment, the requirements regarding the training of the officer who operated the breath testing equipment, as well as requirements regarding the steps that must have been followed before, during, and after the breath-test was administered. An attorney experienced in DUI Defense will take full advantage of any weak-link in the evidence or chain of events.

10 – Videos From the Booking Room in Your San Diego DUI

Often a police officer will include in his/her police report the standard facts to support his arrest. Such usual facts often include that the person was slurring their speech and/or the person constantly lost their balance.
However, many police stations have video surveillance equipment. When a suspect is booked at the police station the video may record the person’s speech and actions which could show, contrary to the police officer’s report, that the person’s speech was actually not slurred and clear, or the person’s balance was perfect.

11 – Squad-Car Dash-Board Camera Contradicts the Officer’s Testimony in Your San Diego DUI

In San Diego the squad-car dash-board cameras are called MVARS (Motor Vehicle Audio Recording System). The use of dash-board cameras as well as body-cameras is prevalent and only going to increase. Quite often the person’s driving, as well as their performance on the field sobriety test, was recorded on the MVARS system. An attorney experienced in DUI Defense will know how to get ahold of that video and know what details to look for to build the strongest case possible in your favor.

12 – Failure To Provide a Speedy Trial in Your San Diego DUI

It is a client’s 6th Amendment Right to be provided a trial within a certain period of time. If the person’s case is not brought to trial within a certain amount of time from his being arrested, there may be a basis for the case to be dismissed. The court will weigh a multitude of factors including, whether the client has actually exercised his right in filing a complaint regarding the prosecution’s unreasonable delay, as well as the reason(s) for the prosecution’s delay. An attorney experienced with the prosecution system as well as DUI Defense will know how to construct and present such an argument to the court in order to provide a basis for the court to award the dismissal of the DUI case based on the suspect’s 6th Amendment Right to a speedy trial.

13 – Police Blood Test Inaccurate in Your San Diego DUI

Similar to how results from a breath test can be attacked, the results from a blood test can be attacked as well. Again, police and lab technicians are human and make mistakes. The rules regarding, the extraction of the blood, the storage of the blood (both in the test-tube as well as the storage chambers), as well as the testing of it, are strict. Police and the people who take, store and test the blood are human and mistakes are made. An attorney experienced with the rules regarding the extraction, storage and testing of blood in DUI cases will be better equipped to identify facts that can provide a basis for an attack on the evidence in your case.

14 – Hospital Blood Tests Are Innacurate in Your San Diego DUI

Many times blood is taken from a suspect at a ‘hospital’. This can provide a foundation for an evidentiary challenge because the way blood is stored by a hospital that wants to use that blood for certain blood-tests (such as white/red blood-cell count, etc.) is drastically different than the way blood must be stored when it is going to be tested for the presence of drinking alcohol. An attorney experienced with the processes regarding blood that is going to be tested for the presence of drinking alcohol will know how to attack incorrectly processed blood evidence.

15 – Breathalyzer Machine Malfunction Before OR After the Test in Your San Diego DUI

Not only are there strict requirements regarding the timing of when the machine that tested your breath was calibrated, but machine malfunctions or required repairs before or after the time your breath-test occurred may lead to your case being dismissed. If the machine that performed your breath-test experienced a malfunction or the machine needed repair within a certain period of time before as well as after your breath test, your breath-test results may be shown to be unreliable and not be allowed to be used against you in court.
If this is the prosecution’s main or only evidence against you and your attorney can win the challenge against the evidence, the prosecution may vacate their case against you for lack of evidence.

16 – The Officer Can Not Ignore Lawful Reasons for DUI Symptoms in Your San Diego DUI

Similar to the fact that an officer may use facts s/he observes and knows that support his/her suspicion that the person s/he pulled over is or has been driving under the influence of alcohol/drugs, the officer may not ignore facts told to him/her that provide lawful and reasonable explanation for symptoms that could otherwise support the officer’s belief the person was under the influence. As an example, an officer who pulls over a client and observes the person’s blood-shot eyes, slow response times and confused thought patterns may use those facts to support a lawful arrest.
However, if the officer, during the conversation with the detained person learns that the person had just been to a funeral or had just had a fight or broken up with a significant other, cannot merely list the detainee’s symptoms to support a lawful arrest. The officer must find other symptoms on which to base his probable cause. An attorney that has the knowledge and experience to bring facts forward that are inconsistent with the officer’s probable cause can lead to a successful San Diego DUI defense.

17 – You Were Not Driving Your Vehicle in Your San Diego DUI

Whether the charge is driving under the influence, or driving with a blood-alcohol level of .08% or higher, the common denominator is the word ‘driving’. As per our adversarial justice system the person is innocent until proven guilty. What this means is that even if you present no defense whatsoever and the prosecution cannot prove every material element of their case against you, you cannot be found guilty. One of the important elements of ‘driving’ under the influence (or with a .08% BAC) is ‘driving’.
A skilled DUI Defense attorney can identify situations where this may be a weak point in the prosecution’s case against you. If this is an arguable issue and the defense attorney does not point out to the court that the prosecution cannot satisfy their burden to satisfy that required element of the Vehicle Code (VC) Section 23152 charge, then the prosecutor will likely allow the court to assume the element is satisfied. If an attorney is knowledgeable and experienced enough to know when and how to point out to the court that the prosecution cannot meet their burden of proof regarding whether or not the defendant was actually ‘driving’, the San Diego DUI defense will likely be successful.

18 – You Were Not Read Your Miranda Rights in Your San Diego DUI

Although Miranda rights are not always required in a San Diego DUI case, there are times when they ‘are’ required and the failure of the officer to read them to a person suspected of a DUI can lead to a successful DUI Defense challenge in San Diego.
If incriminating information is derived as a result of when 1) the person was in ‘custody’, and 2) the officer conducted an ‘interrogation’ and the person was not read their Miranda rights, all information acquired will be inadmissible in court.
‘Custody’ generally means that the person was in a situation where an ordinary person in the same situation would feel pressured and/or not feel free to leave or terminate the encounter with the police officer. An ‘interrogation’ commonly means that the officer should have reasonably known that his/her conduct or question would elicit a ‘response’ from the suspect that would be incriminating.
If both of these elements are present and the officer received incriminating information after the time had passed when s/he should have read the person his/her Miranda rights, all incriminating evidence acquired as a result of what the person did or said will not be allowed to be presented in court against that person. An attorney that is well experienced with challenging a San Diego DUI when a failure to advise the person of his/her Miranda rights is a material issue is invaluable and can mean the difference between losing or winning your San Diego DUI defense case.

19 – California Code of Regulations Title 17 Was Materially Violated in Your San Diego DUI

The prosecution’s violation of Title 17 of California’s Code of Regulations can provides a foundation for a successful challenge to your DUI case. California’s Code of Regulations (CCR) consists of 28 titles and contains the regulations of approximately 200 California State agencies, of which San Diego is under.
Title 17 codifies the requirements for:

  • Collecting evidence
  • Storing evidence
  • Analyzing evidence

The results from DUI chemical tests fall under the very specific requirements of Title 17 and an attorney that is has extensive knowledge and experience with Title 17 Requirements can use a violation of it to reach a successful outcome in your San Diego DUI Defense.

    A few examples of Title 17 violations occur when:

  • The technician that operated the blood or breath testing equipment was not trained or had not received proper continuing education.
  • The equipment itself had not been updated or calibrated according to the governing rules and regulations.
    If an attorney can show that the evidence being introduced by the prosecution does not satisfy the requirements of Title 17, that evidence will not be allowed to be introduced against you, or at least it’s reliability will be called into question possibly leading to a successful San Diego DUI Defense.

20 – The Officer’s Failure to Observe You 15 Minutes Prior To Your Breath Test in Your San Diego DUI

In San Diego, a person suspected of driving under the influence and who has chosen to submit to a breath test rather than a blood test must be observed for a required amount of time prior to giving their breath test to insure the person has not burped, vomited, or committed any other act which could render the breath-test machine’s results inaccurate. Additionally, the 15 minutes does not include the ride to the station.
If the prosecution’s evidence is based on the results of a breath-test, and an experienced San Diego DUI defense attorney can identify that the officer’s failure to properly observe the suspect uninterrupted for the required amount of time prior to the breath-test is a material issue in the case, it is likely the attorney can construct a successful challenge to a San Diego DUI defense.

If you or someone you care about has recently received a DUI and you’re feeling confused, scared, intimidated by the situation, or even embarrassed by the event, know that people that many think should “know better” have made the same mistake as you.

The important thing to do is call me as soon as possible so we can get your questions answered. You’ll likely only get one shot to successfully defend your DUI case. It is vital you hire an attorney with the experience, knowledge, training and courtroom experience to aggressively defend your DUI case.

Whether you have been charged/arrested for a San Diego DUI, Poway DUI, La Mesa DUI, Santee DUI, Mission Valley DUI, Clairemont DUI, Point Loma DUI, La Jolla DUI, Carmel Valley DUI, Mira Mesa DUI, Pacific Beach DUI, Del Mar DUI, Carmel Valley DUI, Encinitas DUI, Oceanside DUI, Ocean Beach DUI, Escondido DUI, Vista DUI, San Marcos DUI, Carlsbad DUI or El Cajon DUI, if you’re looking for San Diego’s Best DUI Defense Attorney, you must speak with Attorney Chris Sohovich as soon as possible.

Contact the Law Office of Chris Sohovich now for a free case evaluation at 619-326-8161.