Written by attorney Manuel Jess Barba

Defending a DUI Case

Defending a DUI Case

Myth #1: It is illegal to drink and drive.

The Truth: it is NOT illegal to drink and then drive in California. It IS illegal to drive a vehicle while “under the influence" of alcohol and/or drugs (Vehicle Code 23152(a)). It is also illegal to drive a vehicle while having a blood alcohol concentration of .08 percent or more, by weight (Vehicle Code 23152(b)). Being “under the influence" is a legal conclusion that the government must prove with reliable evidence. Driving with a “blood alcohol concentration of .08 percent of more, by weight “ is also a legal conclusion that the government must prove with reliable evidence. However – because the real world is not “CSI" – often times the government’s “evidence" is not reliable because of errors and sloppy work. Remember it is always the government’s burden to prove guilt beyond a reasonable doubt in any criminal case. Myth #2: Nothing can be done to defend against a DUI charge.

The Truth: DUI cases are NOT “open and shut." Although DUI cases are complex, they are very defensible. Therefore it is essential to have an expert DUI defense attorney represent you and protect your rights. Although it is the government’s burden to prove your guilt, it is your burden to defend yourself.

Attorney Manuel J. Barba has both the experience and expertise that you need to defend your case. Defending people accused of DUI is the only type of case that attorney Manuel J. Barba handles. Period. The Initial Observation/Contact

An arrest for DUI usually begins when a law enforcement officer comes in contact with a citizen. Law enforcement will watch for certain behaviors before they stop a driver under suspicion of drunk driving. For example, if a driver is operating their automobile inconsistently, law enforcement may stop the driver. Erratic driving may include making wrong turns, failure to signal, speeding, driving too slow, swerving, or failure to stop.

Once law enforcement stops a driver, they will monitor the driver’s behavior. Law enforcement will look for signs of intoxication such as bloodshot eyes, slurred speech, smell of alcohol on the driver’s breath, and open containers in the vehicle. The Fourth Amendment to the United States Constitution protects citizens from unlawful searches and seizures; In other words, the officer must have a legal reason for making contact with the citizen. If the initial contact is illegal, then the evidence gathered from the illegal contact may be suppressed – this would include all of the officer’s observations and any chemical test results. Thus, the reason for the initial contact is very important and must be analyzed by an experienced DUI defense attorney. Attorney Manuel J. Barba is an expert in DUI Defense.

Field Sobriety Tests

If law enforcement has reason to suspect that a person has been driving under the influence, they may ask the person to perform field sobriety tests. Field sobriety tests are voluntary and no person is required to perform them, however law enforcement officers won’t tell you that the tests are voluntary. If a person agrees to perform the tests, he or she will be evaluated by law enforcement on how he or she performs and reacts during the testing. Standardized Field Sobriety tests are validated, which means that the test must be administered in a precise way for the results to have any validity. If the officer fails to administer the test exactly as they are designed to be administered, then the results are compromised.

In addition, often times the officer will have the driver perform field sobriety tests that are not validated. It requires a trained DUI defense attorney to evaluate what tests were given to a driver and whether administered correctly or not, and what the results mean, if anything. Attorney Manuel J. Barba is a qualified Standardized Field Sobriety Test Instructor and is an expert on field sobriety test evaluation as well as drug recognition evaluation (DRE).

Determining Blood Alcohol Level

Blood alcohol testing is an attempt by the law enforcement officer to determine how much alcohol is in a driver’s bloodstream. If a blood alcohol test result of 0.08% or higher, a driver is presumed to have violated the law (Vehicle Code 23152(b)).

It is important to remember that the blood alcohol test is supposed to determine the driver’s blood alcohol concentration at the time of driving the car, and not after the fact. There can be a significant difference between a driver’s blood alcohol concentration at the time of driving and the time the test is taken, which sometimes occurs an hour or more later.

The two most common tests that law enforcement uses to determine a person’s blood alcohol concentration is a breath test (the driver blows into a device) and the blood test, where the driver’s blood is drawn for analysis. Various factors such as gender, amount of alcohol consumed, weight, type of alcohol consumed, time of consumption, and food consumption can directly impact the results of these tests.

Breath Alcohol Testing

During a breath alcohol test the person blows into a breathe analysis device. Although there is a relationship (partition ratio) between a person’s breathe alcohol concentration and the alcohol concentration in their blood, the relationship varies by a number of factors and is not constant. The science of breath alcohol testing assumes that the relationship between breath alcohol and blood alcohol is always the same for all people at all times; but in reality, that relationship varies widely thus making breathe alcohol results unreliable.

In addition the science of breath alcohol testing assumes that the subject has fully absorbed all of the alcohol ingested. This means that all of the alcohol the person drank is no longer in their stomach or small intestine – all of the alcohol has absorbed into the blood stream. If a person has not fully absorbed the alcohol that they drank, then breath testing is not reliable because the breath testing device will overstate the results by 2-3 times. Studies show it can take anywhere from thirty minutes to three hours or more to absorb all of the ingested alcohol, depending on when the person last ate, what they drank, etc. Thus, if a person drank a few drinks, then drove, and then was stopped by an officer and blew into a breath machine, the breath machine might show a result of .12 when in reality the person has a blood alcohol concentration of .04-.06.

Blood Alcohol Testing

Through a blood alcohol test, a person’s blood alcohol content can be determined. Compared to a breath test, a blood test is a more accurate method to determine a person’s blood alcohol concentration; however it is far from perfect. During a blood alcohol test, blood is drawn from a person’s vein usually from the arm, and then it is analyzed using a very complicated process known as gas chromatography.

If the blood test reveals the person’s blood alcohol concentration to be 0.08% or greater, that person is considered to be in violation of law (VC23152(b)). However, the reliability of the blood test result is commonly an issue due to contamination of the blood sample during handling, insufficient preservative and/ or anticoagulant, fermentation, accuracy of the gas chromatography process, as well as other issues.

DUI defense attorney Manuel J. Barba is an expert in breath alcohol and blood alcohol testing as well as absorption issues. To successfully defend your DUI case, you need an attorney with this specialized knowledge.

The Most Common Mistake in Hiring A DUI Lawyer

When arrested for a DUI, you have two choices: #1 – do nothing and your license will be suspended and you will be convicted of DUI; #2 – do something, meaning hire an expert DUI defense lawyer to represent you and you may not lose your license and your chances of not getting convicted of DUI increase greatly.

When hiring a lawyer to represent you in your DUI case, be sure to hire an expert in DUI defense. There are many lawyers that take every different kind of case that walks in the door, but are not experts in any kind of case, especially when it comes to defending a DUI case.

Keep in mind that even if an attorney works in criminal defense, he or she is not necessarily qualified to handle a DUI defense case. DUI cases are complex to defend and require specialized knowledge in DUI investigation, field sobriety testing, how the human body processes alcohol, as well as breath and blood alcohol analysis. Without an expert DUI defense attorney defending you, you will likely not be able to get the best possible defense for your DUI case.

DUI defense attorney Manuel J. Barba is an expert in DUI Defense and has helped many clients resolve their DUI case; many cases have been dismissed, reduced to reckless driving or other non DUI charges, as well as found NOT GUILTY after a jury trial.

To successfully defend your DUI case, you need the specialized knowledge and expertise of DUI defense attorney Manuel J. Barba on your side.

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