Los Angeles DUI Most Common Defenses.

California DUI Breath Test Most Common Defenses.

1. Insufficient or broken observation period -no continuous observation for entire 15 minutes before first breath sample (e.g. Officer attempts to include transportation time as part of required observation period, goes to his trunk and/or walks around before removing you from police car, or you were left alone at anytime prior to taking the test -e.g. used restroom or telephone or placed in holding cell/room).
2. During those 15 minutes before the test, you burp, belch or have slight regurgitation of gas that is relatively quiet.
3. Vomiting, belching within 15 minutes of test - no rinsing of mouth, or inadequate deprivation period before retest.
4. You may not be a proper subject for breath testing. You have a physical problem or health limitation:
   gastric reflux, hiatal hernia or intestinal problem (e.g. Gastro Esophageal Reflux Disease, Irritated Bowel Syndrome, or Acid Reflux Syndrome) diagnosed and treated before date of arrest; dental condition (e.g. gum disease/gingivitis/pockets around roots, dentures or bridgework which may trap mouth alcohol and contaminate a breath machine sample); or
   respiratory problem (e.g. asthma, bronchitis, emphysema or chronic obstructive pulmonary disease).
5. Your behavior or actions do not match test results (e.g. shown by independent witnesses).
6. The breath test room or circuitry has a problem (e.g. Radio Frequency Interference from a cell phone, officer's radio, copy machine or other equipment with surge capabilities) which may cause machine to give artificially high reading; smoking in or near machine; shared power supply with heater or other appliance - must be dedicated "clean" electrical source; or recently painted walls or trim).
7. You have had recent environmental exposure to volatile fumes (lacquer, gasoline, paint, dry cleaning fluids or even 409) which have cumulative reading, causing chemical interference/falsely elevated result.
8. Air bag defenses - "the Tyndall effect' - diffusion of light; propellant exposure; cut lips; lung and airway irritation & fluid build-up from caustic gas propellant.
9. Video tape refutes the high reading, supports sobriety.
10. High test result, yet you never urinate for 3 to 4 hours or more - physiological impossibility.
11. Unintentional alcohol (e.g. from Nyquil, Vicks Formula 44, lip balms, toothache drops).
12. Something in mouth containing alcohol (e.g. Breath Drops with SD alcohol).
13. Something in mouth that contains interfering or contaminating substance (e.g. Skoal snuff - wintergreen; Altoids curiously strong mints).
14. Improper or out of agreement tests, without follow-up tests to correct [both results must be within 0.02% of each other].
15. Officer refuses to permit your request for a second, independent test. Denial of blood test - the more reliable target with the more accurate method of analysis.
16. Officer not trained or marginally trained in accordance with the standards of Title 17 of the California Code of Regulations (e.g. not trained in theory of operation of machine).
17. Officer fails to follow manual or training protocol.
18. Inadequate inspections by machine inspectors (e.g. no linearity proven).
19. Police report supports sobriety, or lack of investigation of alternative causes.
20. Rising blood alcohol level showing time of driving BAC would have been lower than time of testing.
21. Elevated breath temperature (e.g. caused by fever, hot tub, sauna, detention in hot sun or back of patrol car in summer, dancing, menstrual cycle, etc.)
22. Breath/blood ratio (2100:1) not proven to be your ratio; show how minor error gets multiplied 2100 times; 0.12 = 17/10,000,000th of an ounce. Show you have abnormally low blood/breath conversion ratio through testing and expert.
23. Inherent sampling variability or margin of error (e.g., 0.088 reading - state acknowledges +/- 0.01% precision problem).
24. You have blowing pattern irregularity (e.g. blubbering and crying causing artificially high water vapor problem).
25. You have been on strict high protein diet and then introduce carbohydrates, thereby triggering auto-generated alcohol production when ketones are converted to isopropyl alcohol (or the "auto-brewery" syndrome).
26. You have diabetes, are borderline diabetic or are hypoglycemic and consume alcohol in any amount, causing conversion of high acetone levels into isopropyl alcohol.
27. Breath test operator gets first BAC results, which will not support a .08% per se case, then waits a few more minutes and retests, obtaining a reading above the per se limit.
28. Officer gives chemical test admonition, but then goes too far by threatening dire warnings for which there is no factual basis or misstates consequences regarding possible license suspension.
29. State fails to prove that results were obtained within the 3 hour statutorily imposed time (3 hours after driving ended) in order to invoke rebuttable presumption that your BAC was at or over the limit at time of driving.
30. You can prove sufficient alcohol was consumed during driving, after driving ended or before police arrived.
31. Officer gets fired, indicted, retires, moves away, or dies.
32. In handling case, officer commits crime (e.g., obstruction of justice or perjury) in an effort to conceal evidence; state cannot proceed, or more often makes an illegal, warrantless stop or arrests you without probable cause.

Most Common DUI Questions in Los Angeles

Los Angeles DUI: New DUI Reportability Requirements

Beginning January 1, 2007, if you request an out-of-house/public driving record printout, any DUI offense on your record will appear for 10 years from the violation date

Q1. What changes will affect DUI offenses on a driving record?

A. Effective January 1, 2007, new legislation extends the reporting period for DUI offenses from 7 to 10 years for all public requestors, including insurance companies.

Q2. Why did the law change?

A. The new law allows insurance companies access to the driving record information to properly apply the new provisions of the Insurance Code established under Senate Bill 597 (2005), to determine a customer’s eligibility for a good driver discount. Based on the new laws, drivers with a DUI violation occurring within the past 10 years are not entitled to receive a good driver discount.

Q3. I had a DUI in June 1999 that no longer appears on my driving record. Will this violation now show on my record again, since it occurred less than 10 years ago?

A. Yes, based on the new law, your DUI offense will appear back on your driving record and will remain there until June 2009, 10 years from the violation date.

Q4. I have been getting a “good driver” discount on my car insurance ever since my 1998 DUI went off my record in 2005. Will I still qualify for this discount?

A. Unfortunately, no. Under the new law, you may not qualify for a good driver discount again until 2008, 10 years from the date of your DUI violation. You may want to contact your insurance representative if you have additional questions regarding your insurance premiums.

Q5. Will my DUI violation automatically be removed from my driving record after 10 years?

A. Yes, a DUI offense that occurred more than 10 years ago will not appear on your out-of-house/public driving record.

Q6. Will the new law affect me if my DUI violation occurred over 10 years ago?

A. No, a DUI violation that is already more than 10 years old will not reappear on your driving record.

Q7. How do I know which violations will report for 10 years?

A. Under the new law, any DUI violation under California Vehicle Code sections 23140, 23152, or 23153 will report for 10 years. There are some other non-DUI violations (e.g. 23103.5 “wet” reckless) that will report to courts and law enforcement for 10 years and may count against you for the purpose of determining increased penalties for repeat offenders, but will continue to show on a public driving record for only 7 years.

Q8. Why is the DMV discriminating against individuals with DUI offenses?

A. The department is not discriminating against individuals with DUI offenses. It is implementing legislation that is intended to discourage DUIs by increasing the time-period that an offense remains on an individual’s driving record.

Q9. Will an exception to the new law be made if an individual has no tickets or violations after the DUI offense?

A. No, the 10-year reporting period applies to all non-commercial drivers, even those who maintain a clean driving record thereafter.

Q10. What will happen if my insurance company previously gave me a good driver discount and now finds out I had a DUI more than 7 years ago.

A. It will be up to your insurance company to correctly apply the provisions of the Insurance Code and make decisions regarding your policy based on specific entries on your driving record. They may modify your existing policy, offer you a new policy that does not include a good driver discount, or cancel your policy completely.

Check with your insurance company representative if you have specific questions related to your eligibility for a good driver discount.

Q11. I drive for a living and my employer participates in the DMV Employer Pull Notice (EPN) Program. My employer is not aware that I had a DUI in December 1997. Will my DUI now be reported to my employer?

A. Effective January 1, 2007, your DUI will again report on your driving record since it occurred within the past 10 years. The department’s EPN program automatically generates and mails a driver record to the employer for newly enrolled drivers, or upon any action or activity updated to the record, or annually for currently enrolled drivers.

Although employers will not automatically be notified of a DUI that reappears on a driving record when the new law takes effect on January 1, 2007, the DUI violation will appear on the next printout DMV provides to your employer.

Q12. I drive for my employer. I’m afraid I will lose my job if my employer finds out I had a DUI in 1998. The DUI did not appear on my DMV printout that I provided to my employer nine months ago when I was first hired.

A. It will be up to your employer to determine if the DUI will affect your employment. You may want to discuss your concerns with your employer.

Q13. How does the new law affect me if I have a commercial driver license (CDL)?

A. The new law pertains only to non-commercial drivers. Due to federal requirements established under the Motor Carrier Safety Improvement Act of 1999 (MCSIA), the reporting period for DUI violations is different for commercial drivers.

For example, a conviction for a major violation committed in a commercial vehicle (e.g. DUI) will be retained for a period of 55 years on a CDL record, as will a driver license suspension or any withdrawal action.

Q14. What will happen if my insurance policy is cancelled because of a DUI violation?

A. If your insurance policy is cancelled for any reason, you need to get new insurance right away, since it is illegal to own or operate a vehicle without liability insurance in California. You may want to check with your own insurance company before going to another company; they may offer you a policy without a good driver discount.

Current law requires your insurance company to electronically report your insurance information to DMV. Once your insurance company notifies the department that your policy has been cancelled, you will receive a notice indicating that your vehicle registration will be suspended if new insurance information is not submitted within 45 days.

In addition to proof of insurance for registration, if you are required to maintain a California Insurance Proof Certificate (SR 22) for your driver license, you will need to have your new insurance company file a new SR 22 with DMV immediately to avoid the suspension of your driver license based on the cancellation of your insurance proof certificate.

If necessary, individuals unable to obtain insurance through their regular insurance company may have any agent or broker make an application to the California Automobile Assigned Risk Plan (CAARP). You may contact CAARP directly by calling 1-800-622-0954.

Los Angeles DUI Check Points

Drunk Driving Sobriety Checkpoints

1. Ongoing DUI Program — Any agency considering safety checkpoints should integrate them with an ongoing, systematic and aggressive enforcement program. The use of checkpoints alone will not sustain the perception of risk so essential to an effective general deterrence program. In fact, if dinking drivers believe that their chances of being caught are only at safety checkpoints, their perception of risk of arrest may he quite low.
2. Judicial Support — When officials decide that they intend to use this technique, they should involve their prosecuting authority ... in the planning process to determine legally acceptable prosecute. This person can detail the types of evidential information that will be needed to prosecute cases emanating from checkpoint apprehension. The jurisdiction's presiding judge should be informed of hit proposed checkpoints and procedures, all essential step if the judiciary is to accept their use. The judge can provide insight on what activities would be requited to successfully adjudicate such cases. If a judge cannot he persuaded that this technique is acceptable, its implementation will he futile.
3. Existing Policy Guidelines — Any jurisdiction considering safety checkpoints should prepare mitten policy/guidelines which outline how, roadblocks are to be conducted prior to starting to use them. The courts have been very clear in directing that safety checkpoints be planned in advance. [See State v. Hillesheim, 291 N.W.2d 314, 318 (Iowa 1980).] Failure to do so I has been used as evidence that roadblock techniques were discretionary.
4. Site Selection — Planners should take into consideration the safety and visibility to oncoming motorists: Safety checkpoints cannot be of less public benefit than the behavior they are flying to displace, nor call they create more of a traffic hazard than the results of the driving behavior they are trying to modify. Planners should remember to select a site that allows officers to pull vehicles out of the traffic stream without causing significant subjective intrusion (flight to the drivers and/or creating a traffic backup). Furthermore, offices safety must be taken into account when deciding where to locate the checkpoint. Checkpoint locations should be selected in advance by officers other than those manning the checkpoint according to objective criteria that will maximize contact with DUIs, for example, locations with a high incidence of DUI-related fatalities, nighttime injuries or nighttime single vehicle crashes. If every vehicle is not to be stopped, the method used to determine which ones will be stopped must appear in the administrative order authorizing the use of the safety checkpoints.
5. Warning Devices — Special care should he taken to provide adequate warning to approaching motorists that a roadblock-type checkpoint has been established. Such notice can be accomplished with warning signs, flares and police cars with warning lights flashing. If possible, warning signs should he placed along the roadway well in advance of the checkpoint to alert motorists that they will be requited to stop. Signs should be placed to provide advance warning as to why motorists are being stopped, but at the same time should not give impaired motorists the opportunity to avoid the checkpoint.
6. Visibility of Police Authority —The visibility of uniformed officers and their marked police vehicles makes the power of the police presence obvious and serves to reassure motorists of the legitimate nature of the activity. This is an important aspect of any safety checkpoint. This is also part of the effort to reduce the intrusion to the passing motorists who will be affected by the checkpoint surveillance.
7. Chemical Test Logistics — Since DUI arrests are to he anticipated at the selected location, the logistics of chemical testing must also be included. A system for expeditiously transporting suspected violators to chemical test sites must be established.
8. Contingency Planning — If intermittent traffic conditions cause the officers to stray from the predetermined order of selecting motorists to stop (e.g., if a traffic backup occurs), the reasons for the departure must he thoroughly documented. Courts have allowed this deviation as long as records are kept documenting the necessity to deviate from the interview sequence. United States v. Prichard, 645 F.2d 854. If such an event occurs, jurisdictions must have prepared alternative plans in advance to handle the checkpoint. If to much traffic develops at a checkpoint, causing a backup that cannot be easily alleviated, the officer in charge of the checkpoint may consider discontinuing operation at that site and moving to an alternative site. The alternative site should have been identified in advance in the administrative order that first established the checkpoint surveillance, and should be prepared for operation.
   
9. Detection and Investigation Techniques — An agency considering safety checkpoints should ensure that the officers who staff it are properly trained in detecting alcohol- impaired drivers. The implementation of safety checkpoints that allow legally intoxicated drivers to pass through undetected will not be able to achieve a general deterrence effect. Examples of the kind of actions officers are taking during initial contact with a driver at a checkpoint are:
9. 1. Request his or her license and registration.
   2. Use a divided attention task (e.g., after requesting the driver's license, while the driver is looking for it, the officer engages him in conversation).
   3. Question the driver regarding his origination/destination, whether he had been drinking, etc.

   Police are using these approaches to try to quickly detect whether a driver has been drinking. Once an officer's suspicion has been raised, further investigation can take place out of the traffic lane without impeding the flow of traffic. These and other approaches are currently being studied. If an officer feels it is necessary to move a suspect's car after he suspects the driver is impaired, it will he necessary for someone other than the suspect to drive the car.

10. Public Information - To obtain maximum benefit in terms of its general deterrence effect, a safety checkpoint program should he aggressively publicized. The majority of drivers will most likely never encounter a checkpoint, but will only learn of it through media reports (and perhaps by word of mouth). These two valuable forms of public communication will greatly enhance any such program, however, and should be consistently employed.
    

To find a pre-screened Attorney in Los Angeles, call the 24HR Lawyer Referral Hotline 661 310 7999

Refusing to take the test?

DUI Help - Approved by the State Bar of California

Refusing to take the test?

If you were 21 years of older at the time of arrest and you refused or failed to complete a blood or breath test, or (if applicable) a urine test:

1. 
   A first offense will result in a 1-year suspension.
2. 
   A second offense within 10 years will result in a 2-year revocation.
3. 
   A third or subsequent offense within 10 years will result in a 3-year revocation.

If you were under 21 years of age at the time of being detained or arrested and you refused or failed to complete a PAS test or other chemical test:

1. 
   A first offense will result in a 1-year suspension.
2. 
   A second offense within 10 years will result in a 2-year revocation.
3. 
   A third or subsequent offense within 10 years will result in a 3-year revocation.

To find a Pre-screened DUI Attorney, please call our 24Hr Unbiased Lawyer Referral Hotline at 661-310-7999.

California DUI Breath Test Most Common Defenses.

California DUI Breath Test Most Common Defenses.

Insufficient or broken observation period -no continuous observation for entire 15 minutes before first breath sample (e.g. Officer attempts to include transportation time as part of required observation period, goes to his trunk and/or walks around before removing you from police car, or you were left alone at anytime prior to taking the test -e.g. used restroom or telephone or placed in holding cell/room).

1. 
   During those 15 minutes before the test, you burp, belch or have slight regurgitation of gas that is relatively quiet.
2. 
   Vomiting, belching within 15 minutes of test - no rinsing of mouth, or inadequate deprivation period before retest.
3. 
   You may not be a proper subject for breath testing. You have a physical problem or health limitation: gastric reflux, hiatal hernia or intestinal problem (e.g. Gastro Esophageal Reflux Disease, Irritated Bowel Syndrome, or Acid Reflux Syndrome) diagnosed and treated before date of arrest; dental condition (e.g. gum disease/gingivitis/pockets around roots, dentures or bridgework which may trap mouth alcohol and contaminate a breath machine sample); or respiratory problem (e.g. asthma, bronchitis, emphysema or chronic obstructive pulmonary disease).
4. 
   Your behavior or actions do not match test results (e.g. shown by independent witnesses).
   The breath test room or circuitry has a problem (e.g. Radio Frequency Interference from a cell phone, officer's radio, copy machine or other equipment with surge capabilities) which may cause machine to give artificially high reading; smoking in or near machine; shared power supply with heater or other appliance - must be dedicated "clean" electrical source; or recently painted walls or trim).
5. 
   You have had recent environmental exposure to volatile fumes (lacquer, gasoline, paint, dry cleaning fluids or even 409) which have cumulative reading, causing chemical interference/falsely elevated result.
6. 
   Air bag defenses - "the Tyndall effect' - diffusion of light; propellant exposure; cut lips; lung and airway irritation & fluid build-up from caustic gas propellant.
7. 
   Video tape refutes the high reading, supports sobriety.
8. 
   High test result, yet you never urinate for 3 to 4 hours or more - physiological impossibility.
9. 
   Unintentional alcohol (e.g. from Nyquil, Vicks Formula 44, lip balms, toothache drops).
10. 
    Something in mouth containing alcohol (e.g. Breath Drops with SD alcohol).
11. 
    Something in mouth that contains interfering or contaminating substance (e.g. Skoal snuff - wintergreen; Altoids curiously strong mints).
12. 
    Improper or out of agreement tests, without follow-up tests to correct [both results must be within 0.02% of each other].
13. 
    Officer refuses to permit your request for a second, independent test. Denial of blood test - the more reliable target with the more accurate method of analysis.
14. 
    Officer not trained or marginally trained in accordance with the standards of Title 17 of the California Code of Regulations (e.g. not trained in theory of operation of machine).
15. 
    Officer fails to follow manual or training protocol.
16. 
    Inadequate inspections by machine inspectors (e.g. no linearity proven).
17. 
    Police report supports sobriety, or lack of investigation of alternative causes.
18. 
    Rising blood alcohol level showing time of driving BAC would have been lower than time of testing.
19. 
    Elevated breath temperature (e.g. caused by fever, hot tub, sauna, detention in hot sun or back of patrol car in summer, dancing, menstrual cycle, etc.)
20. 
    Breath/blood ratio (2100:1) not proven to be your ratio; show how minor error gets multiplied 2100 times; 0.12 = 17/10,000,000th of an ounce. Show you have abnormally low blood/breath conversion ratio through testing and expert.
21. 
    Inherent sampling variability or margin of error (e.g., 0.088 reading - state acknowledges +/- 0.01% precision problem).
22. 
    You have blowing pattern irregularity (e.g. blubbering and crying causing artificially high water vapor problem).
23. 
    You have been on strict high protein diet and then introduce carbohydrates, thereby triggering auto-generated alcohol production when ketones are converted to isopropyl alcohol (or the "auto-brewery" syndrome).
24. 
    You have diabetes, are borderline diabetic or are hypoglycemic and consume alcohol in any amount, causing conversion of high acetone levels into isopropyl alcohol.
25. 
    Breath test operator gets first BAC results, which will not support a .08% per se case, then waits a few more minutes and retests, obtaining a reading above the per se limit.
26. 
    Officer gives chemical test admonition, but then goes too far by threatening dire warnings for which there is no factual basis or misstates consequences regarding possible license suspension.
    State fails to prove that results were obtained within the 3 hour statutorily imposed time (3 hours after driving ended) in order to invoke rebuttable presumption that your BAC was at or over the limit at time of driving.
27. 
    You can prove sufficient alcohol was consumed during driving, after driving ended or before police arrived.
28. 
    Officer gets fired, indicted, retires, moves away, or dies.
29. 
    In handling case, officer commits crime (e.g., obstruction of justice or perjury) in an effort to conceal evidence; state cannot proceed, or more often makes an illegal, warrantless stop or arrests you without probable cause.

To find a Pre-screened DUI Attorney, please call our 24Hr Unbiased Lawyer Referral Hotline at 661-310-7999.