1. No Probable Cause for the Stop
The officer must have probable cause to stop, detain, or arrest you for DUI. If there was no probable cause the evidence, and the case may get dismissed.
The police must have a reasonable suspicion or reasonable belief that you are engaged in a criminal activity before they can stop your car, conduct a DUI investigation, or arrest you for a DUI in San Diego. This reasonable belief is a standard known as probable cause. If an officer does not have the required probable cause before engaging in any one of these stages, any evidence that is obtained as a result of that illegal procedure will be suppressed. When evidence is suppressed, it means that the prosecution cannot use it against you. This means that evidence obtained without probable cause usually results in reduced or dismissed San Diego DUI charges.
For example, if you were driving at 2:05 a.m. and committed no traffic violation but were pulled over for simply being on the road after “bar time” any evidence obtained after the stop could not be used against you. This includes anything you say to the officer, the blood/ breath results, and any field sobriety tests.
2. Faulty and Unreliable Breath Tests
The DUI breath tests used in San Diego have many flaws. These tests are subject to some of the following problems:
A. Improper use by the police
B. Physiological Conditions (gastroesophageal reflux disease aka GERD)
C. Instrument Malfunction
D. Failure to observe the defendant prior to the test.
DUI breath testing is the most common way to measure a defendant’s BAC but it is not always an accurate because of the fact that a DUI breath test doesn’t directly measure the amount of alcohol in your blood. It measures the amount of alcohol present in your breath and converts that amount to determine the amount of alcohol in your blood. As a result, DUI breath testing is susceptible to a variety of outside influences that can generate an erroneously high BAC reading.
3. Mouth Alcohol
DUI breath testing instruments are designed to capture a sample of breath from your deep lung tissue; this is known as “alveolar air.” Residual alcohol can linger in the mouth for some of the following reasons:
A. Dental work trapped small amounts of alcohol-soaked food in your teeth,
B. You burped or regurgitated, or
C. You suffer from acid reflux, heartburn, or GERD.
The breath test instrument captures “mouth alcohol” rather than simply “aveolar air.” As a result, mouth alcohol can trigger a false BAC reading on a San Diego DUI breath test.
4. Medical Conditions
Medical conditions such as Gastroesophageal Reflux Disease (more commonly referred to as “GERD”), acid reflux, or heartburn can contaminate DUI breath test results. GERD, acid reflux, and heartburn are all medical conditions that create possible mouth alcohol situations. This is because these conditions produce a flow of acid that travels from the stomach into the mouth. When this occurs during a DUI breath test or just prior, the alcohol that travels from your stomach to your mouth disguises the deep lung air that the breath testing instrument is intended to measure. As a result, GERD, acid reflux, and/or heartburn can cause a falsely high BAC on a California DUI breath test.
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Conditions such as diabetes or An Atkins-style diet that is low-carbohydrate, high-protein, or hypoglycemia can trick a DUI breath test and result in a false high BAC.
Atkins-style diets and medical conditions such as diabetes and hypoglycemia are capable of self-producing isopropyl alcohol. This is because bodies that are deprived of carbohydrates turn to stored fat for energy. This process produces ketones. Ketones, when eliminated from the body through breath and urine, convert into isopropyl alcohol.
This creates a problem with the commonly used breath tests because most SD Law Enforcement DUI breath testing instruments aren’t sophisticated enough to distinguish between this self-produced isopropyl alcohol and ethyl alcohol (the type of alcohol that we drink). As a result, Atkins-style diets or diabetes or hypoglycemia can trick a DUI breath testing instrument into producing a falsely high BAC.
6. “Rising Blood Alcohol”
Rising blood alcohol means that your BAC was a higher level when you took the test than it was when you were actually driving.
Alcohol takes a certain amount of time, typically between 50 minutes and three hours, to absorb into your system. For example, if you had just recently finished drinking and were investigated for DUI shortly thereafter your alcohol may not have reached its peak absorption rate. When this is the case, your blood alcohol level is still rising, which can cause a false high DUI BAC result.
This occurs because your BAC at the time of your blood or breath test is irrelevant. What is relevant is what your BAC was at the time of driving. Just because you have a BAC that is above the legal limit when you submit to a DUI chemical test, does not mean that is what your BAC was at the time of driving.
Prosecutors assume that everyone is beyond their peak absorption phase when they submit to California DUI chemical testing. However, we know that this isn’t always the case and that rising blood alcohol is a very legitimate DUI defense. This rising blood alcohol defense applies to both DUI blood testing and DUI breath testing.
7. California DUI Blood Testing Isn’t Always Accurate
There are multiple factors that could taint the results of your DUI blood test results:
A. Blood fermentation,
B. Blood contamination, and
C. Improper storage of your blood sample.
These are just a few of the reasons why a blood tests result might not be accurate. Depending on the circumstances surrounding the collection and storage of your DUI blood test, your San Diego DUI defense lawyer may be able to have your BAC results excluded from evidence. If your BAC is suppressed, your charge under Vehicle Code 23152(b) driving with a BAC of at least 0.08% must be dismissed.
8. Violations of Title 17 of the California Code of Regulations
Title 17 of the California Code of Regulations sets forth the requirements for collecting, storing, and analyzing DUI chemical tests. These regulations are very specific, and any violation of California’s Title 17 can lead to the chemical test being thrown out.
Violations of Title 17 include the following:
A. The technician who drew the blood was not property trained or certified;
B. The DUI breath testing instrument you use hasn’t been properly calibrated
If there was a Title 17 violation your BAC results could be excluded from evidence, or at the very least, its accuracy will be called into question.
9. Field Sobriety Tests Are Not Accurate.
California field sobriety tests (“FSTs”) are not accurate indicators of impairment.
Even the most reliable California field sobriety tests aren’t accurate indicators of alcohol and/or drug impairment. The three tests that have actual data to support their trustworthiness are only between 65 – 77% accurate at detecting impairment and that is only if they are precisely administered and scored, which rarely happens.
Innocent explanations can also explain poor performance on FSTs. These include:
A. officer-induced intimidation,
B. poor lighting,
C. bad weather conditions,
D. uneven surface conditions,
E. poor footwear, and
F. un-athletic or uncoordinated driver
10. A BAC Over .08% Does Not Always Equal Driving Under the Influence
BAC is affected by many different factors, not simply the actual amount of alcohol in one’s body. These factors include (but are not limited to):
A. Errors in DUI chemical testing equipment,
B. Errors in obtaining your DUI blood or breath sample,
C. Your medical conditions, and
D. When you took your last drink.
Each of these factors can independently affect the accuracy of the BAC result, so don’t let the number fool you, a BAC over .08% doesn’t necessarily mean you are guilty of DUI.
11. Your BAC Doesn’t Accurately Reflect Your Level of Impairment
If a significant discrepancy exists between your BAC and your alleged level of impairment, something is obviously wrong. This may be the case where you either (1) reportedly exhibited little to no impairment, or (2) exhibited even slight impairment, but your BAC was high by even as much as two or three times .08%.
When this type of situation occurs, which is sometimes referred to as a “disconnect” case, and your DUI BAC does not accurately reflect your alleged level of impairment, the evidence cannot be trusted.
12. You Were Not Driving
The police must prove more than just that you were under the influence; they must also prove that you were driving.
For example, if you were involved in an accident and no one saw you driving the car, or if the police found you when you were in your parked car, it will be more difficult for the prosecution to prove that you drove. If the prosecutor can’t prove that you were driving, you can’t be convicted of a California DUI.
13. Radio Frequency Interference (RFI)
Radio frequency interference or”RFI” can cause a DUI chemical blood or breath test to produce an erroneously high BAC. This is because almost all electronic devices, including those used to analyze DUI blood and breath samples, are susceptible to RFI or EFI (electromagnetic interference).
The potential sources of radio frequency interference (RFI) within the law enforcement environment are numerous. For example, AM and FM radios, police station dispatchers, hand-held police transmitters, teletypes, and police radar units. Each of these may emit the kind of interference that could cause specific DUI breath alcohol test devices to render false results.
The prosecution may counter this attack in a San Diego DUI trial by pointing out that the machine has an RFI detector. The problem with these detectors is that they are simply unreliable. As repeated tests have demonstrated, there is a segment of the frequency band to which the detector is essentially blind. If there is a source of interference from a device emitting electromagnetic waves in this frequency range, it will not be detected.
14. Even A Perfect BAC Test Has An Error Rate
There are inherent error rates with California DUI chemical testing.
Even assuming that all testing conditions are perfect, the testing equipment has been properly calibrated and maintained, and there aren’t any physiological conditions that could adversely affect the test, there is still an inherent error rate with California DUI chemical testing.
Experts agree that California DUI chemical testing has a +/- error rate of between 0.005-0.02%. As a result, a San Diego DUI defense attorney can challenge BAC results that are between 0.08-0.10%, because they could be lower than the minimum 0.08% required by Vehicle Code 23152(b)driving with a BAC of at least 0.08%.
15. Police Misconduct
Even if you were driving under the influence, police misconduct may knock out your DUI charges.
If you can demonstrate police misconduct, then your DUI charges may have to be dismissed. This is true even if you were actually guilty of DUI. This is because proper police procedures must be followed. For example,
A. DUI police reports must be accurate,
B. Title 17 procedures must be complied with, and
C. Courtroom testimony must be truthful.
If these, or other, conditions are purposely manipulated or ignored, evidence that was illegally obtained or fabricated will be thrown out. Depending on how severely this impacts the prosecutor’s case, he may choose to reduce or dismiss your charges.
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