Drunk Driving/Driving under the Influence Defenses

Defenses to DUI charges include:

  1. The initial “Stop” or the initial police contact violated the fourth amendment right against unreasonable search and seizure.  This defense refers to the reason the police decided to stop the Defendant in the first place. Generally, in a drunk driving case the police will say they stopped the Defendant because of poor driving like weaving between lanes or speeding. However, on some occasions the police will have a “feeling” about a certain person driving a vehicle and invent a reason to stop him. The given reason may be driving in a high crime area late at night or having an item hanging from his rear view mirror “potentially” inhibiting his ability to safely drive. These reasons for stopping the individual are not valid reasons and may violate the person’s constitutional right to be free from unreasonable searches and seizures by police. If the reason for the initial stop is invalid the court can make this determination. Once the court makes the decision it can then suppress all the evidence against the Defendant to include his breath or blood alcohol level. This has the effective result of causing the case to be dismissed. This must be the first thing any experienced drunk driving attorney evaluates.
  2. Vehicle did not move.  In California the Prosecution must prove that the vehicle moved (in any direction) and that the Defendant was under the influence of alcohol or drugs OR had an alcohol level of 0.08% or greater at the time he was driving the vehicle.  So for example, if a person is passed out drunk in a car and the engine is on but the car is in Park an element of the crime of driving under the influence is missing and the Defendant should be found not guilty of the offense. On the other hand, the vehicle moving one inch is sufficient to prove this offense.
  3. Rising Blood-Breath Alcohol Level. This defense occurs when the blood-breath alcohol level of the Defendant is at the limit of 0.08% or close to it. The blood or breath alcohol level is usually taken anywhere from 20 minutes to a couple of hours after the Defendant was driving (Alcohol measurement must occur within 3 hours of driving or it is invalid under Title 17 of the California Code of Regulations).  If the alcohol level is taken an hour after driving it can be argued that the alcohol level at the time of driving was under a .08. In California, only the alcohol level at the time of driving is relevant. The prosecution must prove by back extrapolation that the alcohol level at the time of the test was a 0.08% or greater.  Also, there is a rebuttable presumption that a breath test taken within 3 hours of driving is the blood alcohol level at the time of driving. However, the longer the time from driving to the time of the test makes it harder for the Prosecution to prove the case and easier for the Defense to win.
  4. The Breath-Alcohol, Blood-Alcohol Machines Not Working Correctly or Uncalibrated. The Breath-Blood machines used by the police are supposed to be recalibrated periodically to make sure they are properly functioning. Every drunk driving attorney must request or subpoena the maintenance and calibration records for each machine used on their client. These records can show that the machine was deemed unreliable by a maintenance person OR that the machine was measuring the alcohol level higher then it really was. So in a close case, this could show that the client’s alcohol level was actually below the legal limit.
  5. The Client Burped, Regurgitated or Vomited before giving a breath sample. If a defendant burps, regurgitates or vomits within 15 minutes of giving a breath sample then this can cause an inaccurate reading and invalidate the test results under Title 17 of the California Code of Regulations.  The operator of the breath machine who conducts the test on the Defendant must indicate that he observed the Defendant for 15 minutes prior to the test being administered. Failure to so observe a Defendant can also invalidate the test result.
  6. Chain of Custody. This refers to what happens to the blood vial after the blood is extracted from the Defendant and put in the vial. The District Attorney must establish that there is a documented chain of custody where the blood vial went from the Defendant’s arm to the evidence locker to court. If there is a gap in the chain of custody then the integrity of the blood sample may be in question and it may permit the Defense to show that the blood-alcohol result is invalid.  
  7. Blood Re-test. The Defendant may request that an independent laboratory re-test his blood alcohol level to determine if the level alleged by the prosecution is accurate.  This is also called a “blood-split”. The re-test can test for preservative level and the presence of bacteria as well as the alcohol level. It is important to know the amount of preservative because without the proper amount the blood can ferment and cause a higher reading. Additionally, bacteria that gets in the blood sample can also cause an inaccurate reading. If the preservative level is wrong or there is bacteria present then the blood result may be invalid.
  8. Other Defenses. There are other defenses to Drunk Driving/Driving under the Influence that you may learn from consulting with Mr. William W. Bruzzo (714) 547-4636.


Contact the Law Offices of William W. Bruzzo to learn more about DUI Defenses (714) 547-4636.