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Defense Against DUI Charges

There are three areas in which a highly experienced and dedicated DUI attorney will concentrate on, as follows: 1) The substantive law, meaning whether the elements of the crime can be proven beyond a reasonable doubt; 2) The procedural aspects of a case, which include the chain of custody of the evidence, the appropriate testing procedures, and complying with the Constitutional Guarantees that should be afforded defendants; and 3) The appropriateness of the sentence and whether mitigating facts and circumstances should outweigh the desire of the prosecutor and Court to penalize a defendant or use him as an example to others.

As noted above, one of our goals is to thoroughly investigate your DUI charges to ensure that your rights were not violated and that the police followed proper procedures in your case. If we find a basis, we will challenge:

  • The police officer or sheriff’s DUI stop;
  • All of the procedures that followed in the arrest, including any sobriety test, Breathalyzer test or blood test;
  • Any evidence seized in your driving under the influence matter
  • Any statements you may have inadvertently made to the police as a result of the charges that are filed against you.

Our goal is to protect your rights. We are top SAN DIEGO DUI DEFENSE LAWYERS that have 35 plus years of  experience handling substance abuse and driving under the influence cases, and intend to make the difference in yours. Because we handle all types of criminal cases along with drunk driving defense, we have the knowledge of best practices and procedures, all facets of criminal law, constitutional guarantees, as well we sentencing guidelines and penalties in both all misdemeanor and felony cases to be able to argue for the best sentence or resolution of your DUI case. Far too often, the prosecutors focus on these offenses (DUI,  drunk driving, DWI and driving under the influence) as if they were looking at them through a microscope, and they lose sight of the big picture as it applies to all criminal law matters.

Some of the Defenses Against DUI Charges

There are many defenses we analyze and present, including:

  • Mistakes made by the arresting officer
  • Illegal DUI arrests
  • Unreliable or inappropriate Breath Test
  • Inconsistent or inadmissible test
  • Inconsistencies shown on tape and/or independent witnesses
  • Inadmissible or inappropriate blood test results

We not only want to win your case, we want the government to be held accountable. Our distinguished defense attorneys believe our clients should have the best DUI legal defense to prevent the government from over-reaching in all driving under the influence cases. Our  clients deserve better than to assume the prosecutor can prove beyond a reasonable doubt each and every single element of a crime, overcome objections as to the procedures used by law enforcement or the prosecution, and/or the stated and often excessive criminal penalties.

Aside from the multiple strategies we develop for each client, we want to be sure that illegally obtained evidence cannot be introduced. We also want to safeguard you from violations of procedural and constitutional guarantees.

Here is how we will help by employing Powerful Strategies and asserting your:

  • Right to Effective and Successful Counsel
  • Right to Remain Silent in your interrogation, arrest, offense
  • Right to Speedy Trial for a DUI arrest
  • Right to imaginative use of Criminal Discovery Rules and Procedure
  • Right to Subpoena and Compel Witnesses to Testify
  • Right to use cost-effective and distinguished Expert Testimony
  • Right to aggressively Cross Examine and Confront the Prosecution’s Witnesses
  • Right to challenge the introduction and use of all evidence
  • Right to a Jury Trial
  • Right to assert all Constitutional defenses in all aspects of your DUI case
  • Right to employ Demonstrative Evidence in your trial
  • Right of Presumed Innocence
  • Right to Testify on Own Behalf in your trial
  • Right to assert Creative Options as your lawyer and “master” of persuasion
  • Right to negotiate Lesser Offenses and Reduced Sentences
  • Right to Appeal adverse rulings, appealable errors and improper Decisions

We Get It!

Did you know that the law enforcement officer who stops your vehicle has to observe you for an entire 15 minutes before taking the breath sample? As your Attorney, we will determine whether you were left alone or out of the sight of the officer at any time prior to taking the test, including being placed in a holding room or cell, using the restroom or making a telephone call. Similarly, we will inquire whether the officer included any of the transportation time as part of the required 15 minute DUI observation period.

  1. We will inquire whether you had trouble holding food/liquid down and/or if you vomited during the 15-minute DUI observation period before the test.
  2. Additionally, we want to know if you belched or burped during the 15-minute observation period before taking the breath sample.

In certain driving under the influence arrests, offenses and crimes, we may determine that the breath test is unreliable and inappropriate, and therefore, the results and/or evidence obtained thereafter are inadmissible in your case. Some examples include the following:

  • We want to know if our client has a medical condition, such as diabetes or hypoglycemia — because when these individuals consume alcohol, it can also produce a high acetone level, which the body converts into isopropyl alcohol.
  • We inquire if our client has a dental problem, such as gum disease or gingivitis pockets around the roots, dentures or bridgework. It has been reported that these conditions can trap mouth alcohol and contaminate the results of a breath test.
  • We want to know if our client had any medical problems prior to his or her arrest; whether our client was diagnosed with a hiatal hernia, reflux disease or an intestinal problem;
  • We also want to know if you have a respiratory problem, such as asthma, bronchitis, emphysema or chronic obstructive pulmonary disease.
  • As your DUI defense lawyer, we want to know if you used Breath Drops or mouth spray that contained alcohol immediately before your arrest.
  • We inquire of our DUI and DWI clients if they consumed alcohol as an ingredient of Nyquil, Vicks Formula 44 or other brand cough medicine; we will also want to know if you used a lip balm, or possibly toothache drops.
  • Similarly, there are other substances that may have been ingested shortly before the DUI breath test that may interfere with and/or produce incompetent test results, including products such as Skoal brand snuff.
  • In your driving under the influence case we often use independent witnesses, and we will ascertain if your actions, behavior or conduct are inconsistent with the breath test results.
  • Where there is a video tape, we want to know if it demonstrates your actions, behavior or conduct is inconsistent with the test results.
  • Recently, more and more of the people in San Diego’s population are on the Atkins (or other variety of a) high-protein diet. We may be able to present an argument that such an individual can trigger an auto-generated alcohol production when he or she introduces carbohydrates to his or her body, thereby converting ketones into isopropyl alcohol.
  • If we are selected as your attorney, we will determine if there has been any recent exposure to toxic substances or volatile fumes, including lacquer substances, gasoline, paint, dry cleaning fluids or even brand 409 house cleaner, because they can produce a chemical interference, and therefore, cause an elevated breath test result.
  • If you or a loved one is our client and involved in an automobile accident and the air bag inflated, we can retain experts to determine if there was exposure to the propellant and/or lung and airway irritation causing fluid buildup from the caustic gas propellant.
  • With 35-40 plus years of experience, we seek to know whether you had an elevated breath temperature at the time the breath test was performed as a result of high fever, having recently used a sauna or hot tub, or from being detained in the back of the patrol car in the heat of summer, or if you were standing in the hot sun, dancing, running, heavy exercising, or for women who are having a menstrual cycle.
  • We also inquire if you had a blowing pattern irregularity at the time of the DUI breath test, because it can produce artificially high water vapor causing the test to be unreliable — as was the case in which our client was crying.
  • It is important to us to know if the officer failed to follow procedures and protocol taught in the Academy and/or written in the training manual.
  • We will look at the officer’s report to find indications that support sobriety, are inconsistent with intoxication, or there is evidence that shows the officer did a poor investigation of alternative causes.
  • We want to know if the law enforcement officer was properly trained in accordance with the DUI standards of Title 17 of the California Code of Regulations, including the theory behind the operation of the Breathalyzer machine.
  • In addition, we investigate whether there have been adequate and appropriate inspections of the Breathalyzer machine by properly trained DUI personnel.
  • We will look for improper or inconsistent test results in your drunk driving case in San Diego, and then determine that if there were follow-up tests, at least two timely results are within 0.02 percent of each other.
  • Another defense we can raise is when there is an abnormally high test result.
  • If there is a rising blood alcohol level, there may be sufficient evidence in your case to argue the actual BAC at the time you were driving would have been lower than the time you in fact were tested.
  • If the police officer or sheriff obtains a BAC reading below .08 and then waits to perform a second test in which he obtains a .08 and above reading, we will assert a defense to this charge as well. Our skilled attorneys look for at least two consecutive similar test results.
  • If the officer refused your request for a second, independent DUI test and/or denied your request for a blood test, which is more reliable and deemed most accurate to obtain the BAC, this is a valid and proper defense we will assert on your behalf.
  • We will inquire whether the officer gave you a chemical test admonition that is too broad, including the case in which he threatens dire consequences and there is no factual basis for such a warning, and/or the officer misstates the consequences regarding the suspension of one’s driving privileges.
  • We want to know if the chemical test by the Sheriff or Police was obtained more than three hours after our client was stopped, because there is a rebuttable presumption one’s BAC level was at or over the limit at the time of driving only if the test is within three hours.
  • If the officer makes an illegal, warrantless stop or arrests our client without probable cause, we will argue it can invalidate the charge.
  • If before the case goes to trial, the officer relocates, is subsequently fired, commits a crime and is indicted, retires or dies, we will use that information to obtain a dismissal of your case.
  • And, there are many more offensive and defensive moves we can take including a determination as to whether the DUI test room was contaminated; there was interference from a cell phone, an officer’s radio, or someone smoking in or near the machine; a shared power supply with a heater or other appliance, because any one of these events can potentially cause an artificially high BAC reading.
  • We also want to know if the Field Sobriety Tests were performed on a partial hill or slope and/or a location in the County of San Diego that has heavy traffic.
  • We want to know if there was a curved road at the location of the arrest, as that can also affect a person’s driving (possible defense to weaving out of lane).
  • We want to know as much as possible regarding the entire test process, including:
    • if the test operator has a current certification
    • when the DUI test machine was last certified
    • when the machine was calibrated
    • if the mouthpiece was changed before the test is given
    • if a written record of the temperature of the calibrating solutions in the machine was maintained
    • if there is a written log of the tests that were run for the machine in question
    • how frequent the calibration solution has been changed

Contact an Experienced San Diego DUI Attorney

For your personal, experienced and best San Diego Drunk Driving Attorneys, call Spital & Associates now to schedule a confidential, free consultation with a senior attorney (no paralegals, no law clerks, and no novice lawyers.