Los Angeles DUI Lawyer Blog

Articles Posted in Breathalyzer Test

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When a person has been charged with Driving under the Influence in Los Angeles, it is highly recommended that they seek the help of a Los Angeles DUI Attorney to prepare their arguments and the possible defenses available to them. These strategies and defenses may be factual or legal.

Legal Strategies and Defenses

In order for a person to be convicted of a DUI, they must have been driving at the time of the arrest, and must have been intoxicated while driving. A legal professional will strategically asses the type of instrument used, the method in which the evidence against the client was obtained, and the accuracy of the date collected. These are legal defenses or strategies that are available to the client. Let’s consider an example that covers a few of these strategies.

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California Vehicle Code §23152 makes it unlawful for a driver to be operating a vehicle while under the influence of any alcohol or drugs. The code section used to only include subsections (a) and (b) but as of January 1, 2014, the code section has been revised and additional sections have been added.

Due to recent revisions, it is important that a person who has been charged with a DUI understand the language in the law.

The first part of the Code Section , subdivision(a), reads as follows:

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When you have been stopped for a Los Angeles DUI, there are certain things you should and should not do. One of the things a Los Angeles DUI lawyer will advise you on is that it is not always beneficial to you to take the first preliminary alcohol screening test administered at the arrest.

This test, the PAS, is optional, and officers should advise you of that. It is not necessary, and failing to take it will not result in additional consequences if you are arrested for a DUI. The test administered at the station after arrest, however, is necessary and required. Of course, officers may not force you to submit to one and if you fail to do so, you may have additional consequences.

Many of our clients wonder how they can be found guilty if there are absolutely not solid numbers indicating their level of intoxication, i.e, a blood alcohol test. The truth is, that you will still be tried in Court. You will have a trial on the evidence against you and the Prosecution will try to build a case against you through evidence and testimony. The Prosecution must prove beyond a reasonable doubt, that you were drinking and driving.

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On August 29, 2013 former Laker player and husband of Khloe Kardashian, Lamar Odom, was pulled over on suspicion of driving under the influence of alcohol. Mr. Odom was stopped by officers for going too slow on the San Fernando freeway and driving in a “serpentine manner”.

Officers stated that they smelled alcohol on Mr. Odom’s breath and based on their observations arrested for driving under the influence of alcohol. They further state that no alcohol or drugs were found in his vehicle.

For officers to pull a driver over they must first have reasonable cause. Reasonable cause arises from a general traffic violation, or from a welfare stop. A general traffic violation would be failing to stop at a red light, speeding, or in Mr. Odom’s case, driving too slow and weaving. Officer may also get probable cause from a welfare stop. A welfare stop is when the person is pulled over at the side of the road or highway, and officers stop to check is everything is alright or if the driver needs help.

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When you have been charged with the suspicion of driving under the influence of alcohol and/or drugs under California Vehicle Code §23152 or §23153, you will be given a Court date to appear before a Criminal Judge in Criminal Court.

It is also very important that you call the DMV within the right jurisdiction and request a DMV hearing within ten days of your arrest. If you do not call the DMV within ten days, you will forfeit the opportunity to have a hearing regarding your driving privileges. If you call in a timely manner, the DMV will put a stay on your license pending your hearing.

The DMV hearing is very different from the criminal court appearance. It is held in front of a DMV hearing officer, and there is no government attorney speaking on behalf of the government. It is the job of the hearing officer to not only make a decision regarding your hearing privileges, but it is also their job to defend against you on behalf of the government. Although, they are meant to be neutral, it is very difficult to win a DMV hearing.

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When a person has been stopped on suspicion of driving under the influence, they must appear before a Judge in criminal court. At this point the person has not been found guilty, and are therefore not convicted of a DUI. In order for a person to be convicted and sentenced for a DUI, the person must be found guilty beyond a reasonable doubt. The prosecution must prove that the person was driving and that the person was intoxicated while driving.

If the person is not intoxicated while driving, they may have a valid defense. However, the Los Angeles DUI attorney must demonstrate to the court that the person driving was not intoxicated while they were driving, even in situations where there is evidence of the driver’s blood alcohol level. Providing this defense is very difficult, as it involves much reasoning and assumption, but is definitely possible.

This defense is referred to as the rising alcohol defense. The defense simply means that while the driver was driving the car, their blood alcohol level was low. The blood alcohol level rose as the person drove. Therefore, while the person was driving, he may have reached his destination prior to their blood alcohol level being anywhere near, or over the legal limit of .08%.

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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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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 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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California state law prohibits anyone from driving a motor vehicle when your driving ability is impaired under section 23152 (a) of the vehicle code. Drivers are also prohibited under section 23152 (b) of the vehicle code to drive a motor vehicle when their blood alcohol level is a .08% or more.

Whether you take a breath test or blood test after being stopped and arrested on suspicion of driving under the influence, the seriousness of your case relies in great part on the readings obtained at the time that you were stopped and tested.

A criminal prosecution for this charge carries serious consequences including probation, fines in excess of $1500, required attendance at a lenghly alcohol program, and a range of other consequences.

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