San Diego DUI Defense Attorney
The prosecutor must simply show that your BAC was in fact above 0.08% in order to have a solid case against you. This is usually done by a chemical test of your breath or blood. A urine test may be requested instead, however it is rarely granted as it is considered to be far less accurate than the other two methods. Most likely, the officer will attempt to obtain your B AC at the roadside using a Preliminary Alcohol-Screening (PAS) device.
If you have been arrested and charged with driving under the influence do not wait to
contact The Law Office of Marc S. Kohnen for experienced defense. The firm can thoroughly investigate the prosecution’s evidence and evaluate how the tests were conducted and the methods used to determine the results. If they find that the results of your breath or blood test could have been tainted in any way, they will move to have the evidence thrown out in court and seek to have your charges reduced or dismissed.
Test Refusal and Implied Consent
A very common misunderstanding under the implied consent laws is that if one refuses a PAS device test that they automatically lose their license for one year and will be subject to other enhanced sentencing. This is not true! Under California Vehicle Code 23612, drivers consent only to give a breath or blood sample when lawfully arrested under California Vehicle Code 23152.
You do not have to submit to a PAS Device test at the roadside, because (in most DUI traffic stops) the law does not consider you under arrest until the police put you in the back of the squad car. You are required to submit to a breath or blood sample at the police station after your arrest, so don’t refuse to provide a blood or breath sample at the station, but you do not have to blow into a hand-held PAS device.
Fighting Breath Test Evidence
If you do consent to a breath test, the reading will certainly be considered by the court in determining your culpability under this section. However it will be far from dispositive in determining your exact BAC at the time. There are a number of other factors a skilled and experienced defense attorney may present to the court on your behalf to show that your actual BAC at the time you were operating the vehicle was far lower than the PAS reading.
For example, it is entirely possible that your drinking pattern just prior to entering the vehicle would result in what is referred to as a “rising BAC”. The theory behind this defense is that the alcohol you consumed just prior to entering the vehicle had not yet been absorbed into your system during the time you were driving. It was not until after you were pulled over and then given the breath or blood test that your blood escalated to a point above 0.08%. Especially with the breath test, because it is given so quickly after you were driving in most cases, this defense will be most helpful in borderline cases of 0.08%-0.10% at the highest.
A second explanation involves discrediting the accuracy of the PAS device by what is known as differing “partition ratios” in the general public. The PAS device was developed using technology that runs on the presumption that 1200mL of each person’s breath contains the same amount of alcohol as 1mL of blood. This was “discovered” 40 years ago by the National Safety Counsel’s Committee for Test of Intoxication. However, modern research has revealed that partition ratios can vary from 900:1 to 2000:1 which could result in two individuals, each with an actual BAC of 0.10%, blowing a difference of 0.07% to 0.12%.
Therefore, one individual could be let off under a false assumption that they were under the legal limit, while an equally intoxicated individual could be arrested under the false assumption that they were nearly twice the legal limit. The California Supreme Court has followed suit behind this recent discovery and has allowed evidence of partition ratios to be admitted to educate juries of the potential for false readings in the PAS devices. Again, in borderline cases, this evidence alone could be very useful in obtaining from the jury an innocent verdict in your case, or at the very least, in negotiating with the prosecution for a reduced punishment.
There are a number of other factors which might affect the accuracy of a breath test that an experienced defense attorney will know to provide through expert witnesses in your case. For example medicine containing alcohol, belching, mouthwash or breath spray will affect the accuracy of the reading. Heartburn, Gastroesophageal and acid reflux may disease may also certainly taint the reading of a breathalyzer.
Finally, each individual device must also constantly be recalibrated by the police department to ensure accurate results. More often than one would imagine, these devices are not properly maintained and calibrated and therefore produce inaccurate readings with material margins of error.
A blood test is a far more accurate method of determining your BAC. However, a skilled San Diego DUI attorneys will have the knowledge, resources, and respected expert witnesses to help prove that even a blood test contains some margin of error. There are statutory requirements governing the exact method in which the blood must be taken, the manner in which the blood is stored, who draws the blood, tests the blood and general chain of custody requirements as to who handles the blood and documentation certifying all of the above.
If any of these requirements are not adhered to or documented thoroughly, your DUI lawyer in San Diego, CA may have reasonable grounds to have the blood thrown out and deemed inadmissible at trial. This is yet another reason why it is not advised to submit a breath test. If the blood is then held inadmissible, without a breath test the prosecution will not have a leg to stand on under California Vehicle Code 23152 (b).
It is always a good idea to have the blood retested by an independent source as well. In borderline cases of 0.10% or .11%, the results of a retest may reveal a BAC lower than the original testing by enough to bring the percentage below a 0.08%. Even in cases where the original results come back a 0.15% or 0.16%, a retest may bring the BAC back down below twice the legal limit which will greatly reduce the penalties and will serve as a strong bargaining chip in negotiating an attractive plea bargain.
Are you charged with drunk driving in San Diego, CA?
Attorney Kohnen and his team understand the seriousness of the charges and know the devastating consequences of conviction, which is why they provide relentless advocacy on behalf of their clients. They will fight for your rights and best interests at every stage of your proceedings, and can represent your case at your DMV hearing. Do not make any decisions before you know all your options; call the firm today to discuss your case with a knowledgeable San Diego DUI attorney.