California DUI's are almost always charged in the alternative, which means that prosecutors will levy two different charges for what often times amounts to identical conduct. California Vehicle Code Section 23152(a) states that, "It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle." Similarly, Section 23152(b) dictates, " It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle." As you can see the former provides the prosecution quite a bit of leeway if your blood alcohol level is in question or if the intoxicating substance is something other than alcohol. While this statutory language is fairly tough on the accused, there are defenses.
"Objective" Symptoms of Intoxication Can Be Anything But
As a former prosecutor, I have reviewed literally hundreds of DUI police reports and its incredible how most of the reports use the same descriptive language. Here are a few examples of phrases that appear in virtually every report:
Red, Watery, Eyes
Police often claim to have observed the aforementioned symptoms of intoxication (and plenty others), without actually investigating alternative causes or if these symptoms presented at all in the first place. As you can imagine, there are myriad alternative explanations and many of them can be substantiated through the use of defense experts.
California's Title 17 Protocol Was Not Followed
In all California DUI investigations, California Code of Regulations Title 17 must be honored. This means that police officers must utilize various standards when obtaining a breath or blood sample. One of the more common missteps include the failure to adhere to the 15 minute observation period prior to administering a breath test. Even when this period is properly observed many officers do not regularly utilize the testing equipment properly. Also, all testing equipment must undergo proper maintenance and calibration so an attorney would want to review this documentation for compliance. Finally, there can be chain of custody issues if blood samples are not properly stored and transported. The prosecution must produce exhaustive records to show compliance.
Intoxicated When Tested, Not When Driving
The "rising curve" defense scrutinizes the rate at which alcohol saturates into the blood stream. This is very significant because often times defendants were over the .08 limit at the time the breath or blood sample is obtained, but not at the time they were driving. This defense is often applicable to scenarios where the accused has consumed alcohol shortly before driving a motor vehicle. Since the manner in which alcohol was consumed can be dispositive, its never a good idea to provide a police officer with information outside the presence of your attorney.