Los Angeles DUI Lawyer Blog

Articles Posted in Blood Alcohol Content (BAC)

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Contrary to popular belief,sa field sobriety test is not always mandatory in a DUI arrest. The field sobriety test is the blood alcohol test that is required by officers at the scene of the DUI stop. They will often ask if you will blow in a breathalyzer so that they can get a reading on your BAC. Oftentimes many people refuse this test, and there are no consequences for doing so. It is not required, and may give officers additional evidence against you. However, any BAC test administered at the station are recommended to be taken.

Nevertheless, there are some situations in which the field sobriety test maysbe a good idea to take. One such incident is when there may be a rising alcohol defense. The rising alcohol defense is a defense that may be raised by your Southern California criminal attorney that may result in a reduction or dismissal of the charges being brought against you.

A person must be intoxicated at the time they are operating a vehicle for them to be arrested and convicted for driving under the influence. A rising alcohol defense implies that at the time the person was driving, or got behind the wheel, they were not intoxicated. The general assumption is that when a person first starts drinking, the alcohol has not entered their blood stream, and they are not yet intoxicated. They gradually become intoxicated as time passes. Many different factors will also influence how quickly a person becomes intoxicated including metabolism, gender, diet, and tolerance.sSo then, there may be situations in which the person that is driving is not yet intoxicated,sbut may be an hour from ingesting the first drink.

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One of the biggest elements of a DUI case is the blood alcohol level. Under California Penal Code §23152, and §23153, it is not necessary for a person’s blood alcohol level to be over .08% for them to be charged and convicted of driving under the influence.

The law is clear on the subject, and if a prosecutor or Judge had all the facts, they could readily convict a person who has been charged. Fortunately, that is not how the law actually plays out in Court. If a person has a low blood alcohol level, under .08%, there is a good chance their case will be reduced or dismissed.

The charges will likely be reduced from a driving under the influence of alcohol to a wet and reckless driving charge, dry and reckless driving charge, or an exhibition of speed. This is the best case scenario when it comes to facts. The courts are more flexible if the blood alcohol level is low.

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When a person is arrested on suspicion of driving under the influence, it is very important that they promptly call the DMV and schedule a DMV hearing within 10 days of the arrest.

The DMV hearing is separate from the criminal proceedings in criminal court. The criminal case is heard before a criminal Judge and bears the potential sentence outlined in the California Penal Code. The DMV hearing is heard before a hearing officer and makes the determination of if, when and how long a driver’s license will be suspended.

The DMV hearing is more informal than Court, and does not carry with it the formal rules of evidence. However, you may be represented by a San Diego DUI Lawyer at both proceedings, and it is highly advisable that you are.

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Many of oursclients ask us about our experience with the Courts in Los Angeles county. I have been in and out of these courtrooms for over thirty years. There is a distinct advantage to knowing not only the courtroom, but the Judges, the Prosecutors and even the Clerks.

If you have appeared before a Judge on several occasions, the Judge will know your professional reputation, and therefore when you ask a Judge for a continuance, or a certain offer, the Judge will know you are asking with reason and will take your request more seriously. This is a huge benefit to the client. It benefits their case because it assures that they will get the best possible outcome, and not one that is the result of bias or prejudice from the Judge.

Additionally, knowing the prosecutors will help guide an attorney as to which prosecutor they should negotiate with for a dismissal or a reduction of charges. If one prosecutor is not favorable, the knowledgeable Los Angeles DUI attorney will act swiftly to have the case heard by a Prosecutor who is more likely to accept the offer in comparison to one who isn’t.

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Many different facts and circumstances help determine the outcome of a person’s driving under the influence case. When you have been charged under California Penal Code §23152, or 23153, one of the most influential pieces of evidence will be your blood alcohol level, or BAC.

When a person has been arrested or stopped on suspicion of a DUI, they will be asked to submit to a field sobriety test. This test is administered on the field and contrary to popular belief, is not mandatory. In contrast, if the person is taken into custody, a second blood alcohol test will be given at the station. This second test is in fact mandatory, and refusing to take the test can result in harsher potential consequences.

The blood alcohol content can be measured either by taking blood, or through breath. Each has its pros and cons and the ultimate decision of which one is taken is determined by the person being charged.

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Many of our clients are worried about the statements they make to an officer during a DUI stop. Generally the officer must have a reason to stop you while you are driving. This reason can be any violation of the vehicle code. For example,sif you are missing a license plate, your headlights are not on when they should be, or you are speeding, the officer has a right to pull you over and write you up for the violation.

In the process of pulling you over, if the officer suspects that you are intoxicated he may also ask you if you have been drinking, and if he has enough evidence to support a reasonable suspicion that you have, he or she has the right to ask you to submit to an alcohol screening test. However, the officer MUST have enough evidence to questions you for a DUI.

The officer can gather evidence based on observations. This would mean that if a person exhibits signs of intoxication and the officer reasonably feels there is a good chance the person is intoxicated, they can proceed with a DUI investigation. If the officer does not have enough evidence to support their suspicion of intoxication, the officer has no right to proceed with questioning regarding a DUI.

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Many of our clients are curious as to how an experienced Los Angeles DUI Lawyer can defend a refusal case. A refusal case is one in which the drive has refused to take a blood alcohol test and therefore, the prosecutors have no evidence as to the percentage of their blood alcohol.

To understand how a refusal case is defended, it is first important to understand what a DUI refusal is. When a person has been stopped on suspicion of driving under the influence, officers are required to have probable cause to ask the drive to submit to a blood alcohol test. This test is referred to the preliminary blood alcohol test and is not mandatory. A driver may elect to decline a blood or breath test at this point, with no penalty to him or her.

Officers must also have probable cause to ask the driver to submit to this preliminary test. This means that an officer cannot simply ask you to take a test because he has a “feeling” that you might have been drinking. There has to be valid observations and evidence that will support the officer’s assumption. The most common way officer’s obtain this probable cause is by simply asking the driver of he or she has had anything to drink. Wanting to be cooperative, most driver’s will answer in the affirmative and specify the amount of alcohol they have consumed and when. This gives the officer’s probable cause.

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When a person is stopped on suspicion for driving under the influence, they will be asked to take a blood alcohol test. When a person is issued a driver’s license in California, they give their implied consent to submit to a blood alcohol test when asked to do so by officers. Officers will ask a person who is stopped to take a BAC test at the scene of the stop, but the driver is not required by law to do so at that time. This is referred to a preliminary blood alcohol screening test.

The driver will be asked to take a second BAC test, either blood or breath, at the station. This is a required test, and if the person refuses, there will be more severe consequences if the person is convicted. When the person refuses to take any BAC test, it is referred to as a refusal and dealt more severely with Courts.

In many situations, however, a person genuinely attempts to take the BAC test and is unable to do so, regardless, the Court will treat the case as a refusal. It is up to the person being charged and their Los Angeles DUI Defense Lawyer to prepare a strong argument that demonstrates the person’s full faith effort to cooperate with officer’s requests.

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Many of our clients who are charged with DUIs are certain they do not know how they became so intoxicated. Many do not know how they have such a high blood alcohol level, and many often claim that someone gave them a date rape drug or the like.

The concern many have is if this is a valid defense against being intoxicated. The general requirement for most criminal charges is the element of Mens Rea. Mens Rea means that there was a mental component to the crime and the person who is being charged knowingly committed the crime. In cases of involuntary intoxication, the person does not know they are committing the crime.

The answer to the inquiry is not as simple as one would like. It involves a lot of subjective area, and above all, concrete evidence. The obstacle most commonly found in an involuntary intoxication defense is solid proof that the person did not know they were intoxicated.

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Many of our clients believe that because they have refused to take a Blood Alcohol Test during the time of their DUI arrest, there will not be enough evidence to find them guilty of a DUI. This, however, is not true. A person may be found guilty of a DUI based on the arresting officer’s observations and any statements made by the driver.

When a person has been charged with a criminal offense, they have the option to accept a plea bargain made by the prosecutor. A plea bargain is an offer for the person being tried to plead guilty for a charge and in exchange receive a lower penalty. If a plea bargain is taken, the person charged will plead guilty to a charge before the criminal Judge and will be given a lowered sentence. If the charged person does not accept the plea bargain, further negotiations may be made. If there is no agreement, the case proceeds to trial.

Lets say David has been charged with a DUI where he has refused to take any BACstest. Officer’s observed him as slurring, smelling of alcohol and weaving in and out of lanes. David believe that because he refused to take the BAC they will have no proof as to his intoxication and the case will be dismissed. Prosecutors offer David a plea bargain. They explain to him that if he pleads to a misdemeanor DUI, they will drop any enhanced penalties because of the refusal, and give him the lower end of the legislative penalty for Driving while intoxicated in California. If David takes the offer, he will go before a Criminal Judge and plead guilty to a DUI, be sentenced and his case is closed. However, if David decided he absolutely believes he is innocent, or that there is not enough evidence to find him guilty, he will proceed to trial.

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