The purpose of this is to give you some examples of how to get your DUI charges dismissed. For a full and comprehensive understanding of DUIs in California, including DMV hearings, and what to expect in criminal court, please watch our DUI playlists listed below. This is a down and dirty list of the most common defenses to DUIs in California.
1. The Rising Offense: This means your alcohol level was rising at the time of your arrest. For example, when you were pulled over, you actually were under the legal limit, but by the time you got to the jail or the hospital, when you blew into a breath machine or when your blood was drawn, your alcohol level rose to a higher level. You could have drunk right before driving and it wasn’t until you were at the jail or the hospital that you were actually intoxicated above the legal limit.
This means you weren’t driving over the legal limit. This is called the rising defense and often it can be proven when the results from the small breath tests you took on the side of the road are a lower number than the second test that you took out of jail or a hospital. For example, your breath test at the scene was a 0.07 and your blood results later were a 0.09. The numbers are rising from a 0.07 to a 0.09 and it can be deduced that at the time of your driving, you actually were less than a 0.07.
2. Your blood or your breath results were unreliable, and this can be proven in a couple of different ways. If you took a blood test, you could have your blood retested at a different lab. If your results were in the gray area, between a 0.08 and a 0.09 we’ve had cases in the past where we retest the blood, and it came back less than the legal limit.
If you took a breath test, there’s a rule that the breath machine must be calibrated for accuracy within every 10 days or within 150 uses. If you are arrested on a holiday, you may want to get those calibration logs to show your breath test results were potentially unreliable because the machine was faulty or used over 150 times.
3. You were illegally stopped: Some people call this a PC 1538 Motion: Motion to Suppress Evidence. If your attorney can prove that there was no reason to stop you in the first place, that you were racially profiled or the reason for your traffic stop wasn’t a violation of the law at all then the argument is that all the evidence should be thrown out because the stop was illegal.
4. The No Driving Defense: This might apply to you if you actually weren’t in the driver’s seat, or if there’s no proof that you were driving. Sometimes people are arrested while they’re sleeping in the backseat of their car or in the passenger seat of their vehicle. The police might touch the hood of the car to see if it was warm if there was recent driving, you could be outside of your car waiting for help from a tow company or a friend, or there might’ve been other people waiting outside of the car with you and there is no evidence to show that you were actually the driver. This defense is hard to prove if you were found alone in the driver’s seat with the keys in the ignition, even if you were parked.
5. The Three-Hour Rule: Your blood must be drawn, or your breath test must be taken within three hours of driving. This defense can apply to you if there was some type of delay in taking you to the hospital and getting your blood drawn or a delay in having you take a breath chemical test. If it was over three hours from the time that you were pulled over, you may have a three-hour driving defense.
There are many other defenses to DUIs, and if you’re curious to see if your case has a defense, please contact an experienced DUI lawyer to get an evaluation of your case. At Lamano Law our goal is to keep you informed and to help. Thanks for listening.
