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Common DUI Defenses in Orange County
There are numerous defenses to a DUI charge; however, the defense must still be reasonable if you expect it to be considered reasonable doubt. These are a few of the most commonly used defenses in Orange County to defend those charged with DUI in Orange County and throughout Southern California.
Orange County DUI Defense Lawyers
The defenses set forth below and the accompanying links demonstrate the need for those charged with DUI in the County of Orange to obtain the very best DUI defense Lawyer. The Orange County DUI Defense Lawyers of The SoCal Law Network are Orange County's Leaders in DUI Defense. Contact one of the DUI Defense Lawyers from The SoCal Law Network to see whether any of the defenses listed below apply to your Orange County DUI case.
Rising Blood Alcohol Level - You were Under 0.08% and not Impaired at the Time of Driving - This is the Law
Probably the most common Orange County DUI Defense is the "rising blood alcohol" defense. It is based, correctly so, on the fact that a person's blood-alcohol level starts at zero, rises and then reaches a peak. It after that begins to decline. Because the blood or breath alcohol level at the time of driving is at issue, if it can be shown that the person was actually below a 0.08% at the time of driving, the person is not guilty of the CVC § 23152(b) charge.
If the person was not at or above 0.08% at the time of driving, he/she may also not have been impaired, or under the influence. If the person was not impaired at the time of driving either, then he/she is not guilty of the crime of driving under the influence (CVC § 23152(a)) either.
This defense requires an experienced Orange County DUI Attorney who has specialized knowledge in the science of driving under the influence. The Orange County DUI Attorney must have experience in cross-examining the DA's expert witnesses: forensic scientists from the Orange County Crime Laboratory, who will almost always be of the opinion that the person charged was at or above a 0.08% or more at the time of driving and was thus impaired. With the right approach, an experienced Orange County DUI Attorney can show the jury that the person was likely below 0.08% at the time of driving, and thus, not impaired. Accordingly, that person cannot be guilty of the DUI charge.
This defense is not just a way to avoid a conviction - there are just limitations on the types of evidence that can be acquired as part of a DUI investigation. Namely, there must be an investigation before the evidential chemical test. Thus there is, by virtue of the DUI Investigation, a time delay from the time of driving to the time of a post-arrest chemical test. A person could be below 0.08% and not impaired at the time of driving, and therefore "not guilty" as a matter law.
Breath Temperature Defense and Breath Test Variability
Breath testing is an "indirect measurement" of the person's true blood alcohol level. Because it is just an estimate, it is subject to a certain amount of variability. In some cases, the amount of variability can be quite substantial and result in an over-reporting of the true blood alcohol level. Many experts have opined that a breath testing device can over-report a person's true blood alcohol level by as much as 40-to-100% depending on the circumstances. Therefore, one breath test subject can have a breath test result of 0.11%, but his/her true blood alcohol level could be only a 0.06%-to-0.09% at the time of the breath test, which was taken 15-to-45 minutes after the time of driving. Thus, the person's true blood alcohol level at the time of driving may have been even lower than that reported at the time of the breath test.
Orange County Law Enforcement agencies use a portable evidentiary breath testing (PEBT) device. It looks just like a preliminary alcohol screening (PAS) test, but it's hooked up to a fancy computer that prints out the DUI suspect's breath test results immediately at the scene. The device is, for all intents and purposes, no more accurate than the PAS test device, which has been known to be inherently unreliable; but because of some hard lobbying by the manufacturers of these breath test devices, they are now being used for evidentiary purposes.
These portable evidentiary breath testing devices are not equipped with mouth alcohol detectors and are not ethanol or alcohol-specific; thus, the opportunity for false-positive and falsely elevated readings is not uncommon.
An Orange County DUI Attorney can thoroughly examine the evidence relating to the device used to test your breath on the night of your DUI arrest to determine whether any legal and factual defenses exist that could result in a dismissal of the DUI charges.
Click here to learn more about Breath Testing Defenses in Orange County
MEDICAL DEFENSES TO AN ORANGE COUNTY DUI CHARGE
There are numerous medical issues that could have an impact on your case. The defenses set forth below are not intended to be a complete or definitive list of medical defenses; but they do shed some light on some of the things we look at to determine whether there were any irregularities in your case that would lead to the conclusion that what the officer believed was impairment was actually a medical condition masquerading as impairment.
Gastric Reflux Disease, or GERD, is another commonly used defense to a DUI charge. The viability of this defense often hinges on one being able to show that they had GERD before the date of the offense. GERD has a tendency to cause errors in breath testing based on the fact that GERD causes one to bring up alcohol from the stomach, which is then pushed through the breath test device causing an elevated breath test reading.
With the assistance of your treating physician, an Orange County DUI Attorney can determine whether your GERD may have had an impact on your breath test results.
Another commonly used defense is the presence of what is often-called "mouth alcohol" based on problems with one's gums (periodontal disease) or pockets in one's mouth, like those brought about by problems with one's dentures or faulty bridgework or some other periodontal issue.
With the assistance of your treating physician, an Orange County DUI Defense Attorney can determine if your periodontal disease may have had an impact on your breath test results.
Diabetes and the issues that arise as a result of diabetes are another common defense to a DUI charge. The viability of the defense depends on a variety of factors. A person with diabetes with low blood sugar may exhibit symptoms that mimic that a person under the influence and a person with diabetes with high blood sugar may cause a breath test to over-report that person's true blood alcohol level. Diabetes is a complicated disease, and the defenses associated with it are equally complicated.
With the assistance of your treating physician, an Orange County DUI Attorney can determine if your diabetes may have had an impact on your breath test results.
Inner ear infections and other medical issues that may affect a person's equilibrium are yet another example of commonly used DUI defenses. When a person has an inner ear infection or some other condition that may affect the person's ability to balance, such as vertigo, it may make a DUI suspect appear as though he/she is impaired when he/she may not be.
With the assistance of your treating physician, an Orange County DUI Lawyer can determine whether your inner ear infection or vertigo may have had an impact on your ability to perform the field sobriety tests.
Problems with a DUI suspect's back, legs, and hips, may cause the suspect to appear as though he/she is impaired when he/she may not be. The National Highway Traffic Safety Administration has indicated in several of its official publications that such medical conditions may affect a DUI suspect's ability to properly perform the field sobriety tests and could lead to false arrests.
An Orange County DUI Defense Attorney can determine whether your injuries may have had an impact on your ability to perform the field sobriety tests.
Another medical defense that often arises concerns women and the issues associated with menstrual periods. During these times, or when a woman is menopausal, women may have elevated temperatures, which may result in an over-reported breath test result.
Women also metabolize alcohol differently than men. It is not uncommon for women to achieve higher blood alcohol levels as a result. Not surprisingly, field sobriety tests and breath testing devices are predicated on male physiology. These physiological differences between men and women may cause differences in a woman's ability to perform the field sobriety tests and may also cause breath alcohol test readings to over-report under certain conditions.
Click here to learn about DUI Issues & Women
CONTACT PETER F. IOCONA, ATTORNEY AT LAW TO LEARN MORE ABOUT ORANGE COUNTY DUI DEFENSES
There are other defenses that an Orange County DUI Attorney may pursue and can be of great assistance in determining whether to accept a plea or push the case for a pretrial motion, such as a motion to supress, a motion-in-limine, and proceeding to a jury trial.