As a DUI defense attorney, practicing law in Orange County California for more than 20 years, I have handled hundreds of driving under the influence cases. My clients come from all walks of life. They include lawyers, doctors, business professionals, college students, as well as the average person who is just living their life comfortably, until one day when they make a mistake and drive after having had a few too many drinks. This is the time when you need an experienced attorney who will look closely at your case and determine whether or not there is a good defense. The following is a list of some defense to DUI that I routinely look for when evaluating a new case.
1. Can the prosecution prove that you were the one driving the car? This may sound obvious, but surprisingly, there are those situations where police officers come upon a car and there is more than one occupant in the car. If no one is in the driver seat, how can they determine who was driving.
2. Did the police officers have reasonable suspicion to stop you in the first place? As most people know, all an officer has to have in order to pull you over is a reasonable suspicion that you have done something wrong. Challenging the stop is extremely difficult because there are so many reasons an officer can pull you over. Obviously any traffic violation, regardless of how minor, gives an officer reasonable cause. It can be something as small as a taillight out, driving too slow, or forgetting to use your turn signal. So, one of the first things I look at is why you were pulled over in the first place.
3. Once you are pulled over, did the officer have a good reason to keep you there rather than just citing you for the initial violation, which you were stopped for? In other words, if you are pulled over for a tail light out, if he doesn't just cite and release you but instead calls for a DUI officer to assist him, it is unreasonable for the officer to hold you there, for an unreasonable time, waiting for the DUI officer to arrive. This is very important in situations where the officer has pulled you over for a traffic violation, and not because there was any indication of a potential DUI.
4. Did the officer have probable cause to arrest you? When an officer is trying to determine whether or not to arrest someone for DUI, they will look for signs such as slurred speech, watery or bloodshot eyes. They will ask a series of questions, including whether or not you have been drinking or smoking marijuana. They will ask the individual to perform a Field Sobriety Test, including blowing in to the roadside Breathalyzer. As discussed in other blogs, you do not have to answer any questions, you do not have to perform the FTS nor do you have to submit to the roadside Breathalyzer. If none of these tests are performed, the officer must show probable cause to arrest you for DUI. This isn't necessarily difficult for a police officer because, if they smell alcohol, they can say that you exhibited symptoms of intoxication such as slurred speech, watery, bloodshot eyes, and if they observed you driving, they may say you were swerving. Even if none of this is true, some officer will use these reasons to arrest. These things can be challenged if the officer has his microphone on during the investigation and if they have video in their patrol car. It is important to note that, if you are arrested, once you arrive at the police station, you must submit to a breath or blood test or you will automatically lose your license to drive for one year.
5. If you are arrested and submit to a blood test, it is my practice to request the testing procedures from the Orange County Crime Lab, looking to see that they have followed proper, legal procedures. I will often use an expert in toxicology to help determine whether or not the blood draw could influence the outcome of the case. New law does require that, if someone refuses to submit to a blood draw, the officer may seek a warrant, even if it's in the middle of the night, and force the blood draw. In this situation, you end up forcibly giving a blood sample, and losing your license for one year. So, if you are arrested for DUI, submitting to a blood, breath or urine sample, at the station, is recommended.
6. There is something that is called "Implied consent Warnings". Prior to you submitting to a test, the officer must read to you the warnings. If he did not, and it can be proven that he did not, then the case may be dismissed.
Because there are so many potential defenses to a driving under the influence charge, it is important to seek the legal advise of an experienced DUI defense attorney to determine whether or not you have a defensible case.