Good DUI Defenses – Top 10 Ways to Beat The Charge

The top 10 legal defenses to driving while intoxicated (“DUI”) charges fall into three categories. These are that:

1. you were not intoxicated,¹
2. your driving was not impaired², and/or
3. the officer who arrested you did not follow proper procedures.

As any experienced DUI attorney can tell you, an arrest does not have to mean a conviction. You can avoid life-changing drunk driving penalties³–including hefty fines and a driver’s license suspension–by fighting charges with a strong defense strategy.

The top 10 legal defenses to DUI charges are:

• 1. Bad Driving Does Not Equal DUI
• 2. Intoxication Symptoms Do Not Equal DUI
• 3. Field Sobriety Tests Are Not Accurate
• 4. “Mouth Alcohol” Inflated Your BAC Result
• 5. The Officer Did Not Conduct a 15-Minute Observation
• 6. The Officer Did Not Comply with California’s Title 17
• 7. Your BAC Was “On the Rise”
• 8. You Were “Mentally Alert”
• 9. Hypoglycemia, Diabetes or a High Protein Diet Inflated Your BAC
• 10. The Officer Did Not Follow Proper Procedure
• Additional Resources

1. Bad Driving Does Not Equal DUI

You can fight DUI charges by arguing that you were merely driving erratically or poorly–but NOT driving under the influence. This defense is especially helpful with charges that you were “driving under the influence” under Vehicle Code 23152(a) VC.⁴

One of the first things prosecutors focus on is your driving pattern. They routinely have the arresting officer testify that you were driving in a manner “consistent with” someone who was under the influence of alcohol or drugs. Often, this so-called “pattern” includes allegations that you were speeding or weaving within your lane.

We rebut this evidence by having the officer testify about all of the ways that you drove properly and safely. We elicit testimony from the arresting officer that:

1. the majority of traffic violations are actually committed by sober people, and
2. driving pattern is not a reliable predictor of driving under the influence.

The National Highway Traffic Safety Administration (NHTSA) — the nation’s leading authority on DUI — says that cues based on driving patterns are predictive of drunk/drugged driving only 35% of the time.⁵ Even the National District Attorneys Association admits that driving behaviors are sometimes “quite nuanced.”⁶

Example: Tony accidentally serves between lanes while scratching his ankle. Police pull him over and arrest him for DUI even though he had only one drink that night.

Tony’s attorney gets the officer to admit that he was driving within the speed limit, pulled over as directed, parked without difficulty, and otherwise was driving with “the caution characteristic of a sober person.”⁷

The attorney also gets the officer to admit that sober people often drift into other lanes for reasons having nothing to do with drug or alcohol consumption. This defense to Tony’s charges leads to a “not guilty” verdict.

2. Intoxication Symptoms Do Not Equal DUI

Your physical appearance plays a big role in your DUI investigation. The officer who arrested you will testify that you were “under the influence” because you had

• red, watery eyes,
• slurred speech,
• a flushed face,
• the strong odor of alcohol on your breath, and/or
• an “unsteady gait”.

Incidentally, these “objective signs and symptoms of intoxication” are all listed on a pre-printed DUI arrest form called Form 5.2.5. This form is used by the CHP, the Los Angeles Police Department (LAPD), and other local law-enforcement agencies.⁸ Using Form 5.2.5, an officer can simply “check off” that you displayed these signs / symptoms, without further elaboration.

We defend you against DUI charges by addressing the “innocent” explanations that could have led to those signs. For instance,

• allergies,
• a cold,
• fatigue, and
• eye irritation.

are all common causes of red eyes.

We also elicit testimony that alcohol has no odor. What people perceive as alcohol on the breath is actually the smell of other things commonly found in both alcoholic and non-alcoholic beverages — such as malt and hops.

Example: Sam is on trial for DUI. As it turns out, Sam had been playing beach volleyball all day, so the sun accounted for his red eyes and flushed face. He had also had a couple of Coronas and several non-alcoholic beers–which explains the odor on his breath–but was not nearly enough alcohol to make him “under the influence” for purposes of California DUI law. These facts cast strong doubt on the assertion that Sam was under the influence.

3. Field Sobriety Tests Are Not Accurate

Field Sobriety Tests (FSTs) are heavily relied on by the DUI “prosecution team”– the prosecutor, the arresting officer, and a criminalist. These “experts” always claim that you “performed poorly” on these tests because you were drunk driving.

In these cases, we explain how balance and coordination during FSTs can be affected by:

• your natural physical coordination,
• nerves,
• fatigue,
• your clothing,
• flat feet, and
• a variety of other issues.

Example: An LAPD officer tells the jury that DUI defendant Lisa performed poorly on her FSTs. Then on cross examination, Lisa’s lawyer establishes that Lisa took her FSTs outside a busy bar with a line of people watching. The night was cold and windy, cars were speeding by, and Lisa was in 3-inch high heels.

Lisa’s attorney convinces the jury that any or all of these non-alcohol-related factors could have caused her “poor performance” on the FSTs.

We also challenge the reliability of the FSTs themselves. NHTSA claims that FSTs accurately predict alcohol impairment 91% of the time.⁹ However, this percentage – even if true – assumes that:

• the tests administered are the three “standardized” field sobriety tests:
  • the Horizontal Nystagmus Test,
  • the Walk-and-Turn Test, and
  • the One-Leg Stand; AND
• the officer administering the tests has the proper training and experience; AND
• test conditions are perfect.

In reality, all of these factors can vary greatly–and make the unreliability of FST results a viable DUI legal defense.

4. “Mouth Alcohol” Inflated Your BAC Result

Before giving you a DUI breath test, an officer must continuously observe you for 15 minutes. This is to make sure that during this time you do not put anything containing alcohol into your mouth, including:

• drinks,
• medicines (such as homeopathic medicines or cough syrup), or
• mouth spray or mouthwash.

The officer must also make sure that you do not belch, burp or regurgitate. Doing any of these things could bring alcohol from your stomach into your mouth–creating the phenomenon known as “residual mouth alcohol.”

The accuracy of DUI breath testing equipment hinges on your “deep lung air.” When you blow into a breath-testing device while you have alcohol in your mouth, it mixes with your lung air. This can cause your blood alcohol content (BAC) to register falsely high.

Therefore, mouth alcohol is an effective defense to charges of having a BAC of 0.08 or above under Vehicle Code 23152(b) VC.

Example: Becky suffers from GERD and burps repeatedly while an officer administers her DUI breath test. Her attorney hires a toxicologist to testify that burping can produce “residual mouth alcohol” and artificially inflate BAC test results. When presented with this argument, the prosecutor offers Becky a plea bargain to the reduced charge of “dry reckless.”

5. The Officer Did Not Conduct a 15-Minute Observation

Police must observe you for 15 full minutes before your DUI breath test.¹⁰ However, many instead do paperwork and/or set up the breath test machine.

Showing that the officer failed to properly conduct the observation calls into question not only your breath test results, but also the entire DUI investigation.

Example: At Tim’s drunk driving trial, the officer testifies that he “continuously observed” Tim for 15 minutes before his breath test. Then on cross-examination, Tim’s attorney gets the officer to admit that the 15-minute period took place during the drive to the station. Tim was alone in the backseat during this time. The officer is forced to admit that he could not have seen Tim burp, belch, hiccup, or regurgitate–any of which might have inflated Tim’s BAC results.

6. The Officer Did Not Comply With Title 17 Regulations

California Code of Regulations Title 17 governs how DUI blood tests and breath tests must be conducted. Requirements include:

• a 15-minute observation period (described above),

• the proper training of personnel conducting the chemical tests,

• proper administration of the tests,

• regular calibration and maintenance of the testing equipment, and

• proper collection, handling, and storage of blood (or, in rare instances, urine) samples.¹¹

If Title 17 regulations are not strictly observed, your test results could be tainted. Failure to follow even one regulation can call your entire DUI investigation into question.

Example: At Rick’s drunk driving trial, the state calls a criminalist to testify that Rick’s blood test revealed a 0.10% BAC. Then during cross-examination by Rick’s attorney, the criminalist is forced to admit that the preservative contained in the vial used to collect and store the blood sample had expired, and the arresting officer did not properly shake or store the sample–two Title 17 violations that could invalidate the DUI charge.

7. Your BAC Was “On the Rise”

“Rising blood alcohol” is another common and good DUI defense. According to Burbank drunk driving attorney John Murray:¹²

“There is nothing illegal about drinking before driving. What is illegal is being impaired at the time you drive. When you drink, your BAC rises rapidly and steadily until it reaches its maximum level. During this time, your BAC is “on the rise.” It takes, on average, about 50 minutes for BAC to reach peak levels — though depending on various factors it can take as much as two or three hours.”

If you had rising blood alcohol when you were pulled over, the results of your chemical test could be wrong. Your BAC could have risen to over the legal limit during the lengthy period of your DUI investigation. Again, the only thing that matters is what your level was at the time you drove.

Example: Sheila has a couple of quick shots at a bar before leaving immediately afterwards. She gets pulled over for a broken taillight, and the officer smells alcohol on her breath. After a DUI investigation, the officer arrests her. Nearly two hours later the officer administers a breath test, which shows a BAC of 0.09%

Sheila’s lawyer should be able to get the prosecutor’s expert to admit that Sheila’s body probably had not fully absorbed the alcohol when she was driving home. This would mean that her BAC was below the legal limit when she drove and that she can successfully fight the driving under the influence charge.

8. You Were Mentally Alert

Officers routinely testify that DUI suspects displayed physical signs of impairment. However, officers do not always testify that they showed signs of mental impairment.