Articles Posted in Breath Test

There are certain legal hurdles a prosecutor must cross in order to successfully prosecute a case. They must prove, beyond a reasonable doubt, using evidence, testimony and other exhibits that a person was:

1)      Driving

2)      Intoxicated at the time.

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.

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:

According to the Centers for Disease Control and Prevention (CDC), there is a dangerous trend among approximately 14 million women in the United States. That trend is binge drinking. The latest statistics released show that this group “binge drinks” roughly three times per month and average six alcoholic beverages each time. The definition of binge drinking, according to the study, is having four or more alcoholic beverages per outing for women or girls.

These signs are problematic because the dangerous behavior is not just limited to high school and college aged females. Furthermore, such activity results in over 20,000 deaths per year for women and girls in the U.S. It is also documented that binge drinking leads to increased risks of sexually transmitted diseases, unplanned pregnancies, breast cancer and heart disease, among other things. For pregnant women, binge drinking can lead to fetal alcohol spectrum disorders and SDS, or sudden infant death syndrome.

According to the report:

• One out of eight women and one out of five high school girls admitted to binge drinking.

• Of the high school girls that consume alcoholic beverages, 50% admitted to binge drinking.

• White and Hispanic females were most likely to binge drink, in addition to women whose household earnings topped $75,000.

The CDC study consisted of a telephonic survey in 2011 of some 278,000 women and 7,500 high school females.

The frightening thing about this study is that these 14 million women and girls are going to attempt to get home after a night on the town or binge drinking at a friend’s house.

The result of making that decision to drive home after drinking can be life changing. Certainly where the average number of drinks consumed is six, many people are going to have consumed eight or ten. In virtually every instance where you have consumed six or more drinks, you will be arrested for driving under the influence (DUI) if pulled over in California. Pursuant to California law, it is a crime to operate a vehicle with a blood alcohol content (BAC) of .08 or more.

If you are convicted of DUI while speeding, having a child in the car 14 years old or younger, or having a BAC of .15 or more, the fines and penalties will be enhanced.

Even if you don’t get behind the wheel to drive, you can be arrested under the California Penal Code for being drunk in public (DIP). Determining factors are if the arresting officer feels that your state of inebriation is such that you are a danger to yourself or others, or that your intoxication level interferes with the use of public sidewalks and other common areas.

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Anyone who causes an injury to another person while driving under the influence (DUI) faces serious charges and might even be charged with a felony DUI. Under California Vehicle Code 23153, an individual will generally be facing a felony charge, depending upon several factors, including the type and extent of the injury.

Since 1989, the law in California states that an individual is legally driving under the influence if his or her blood alcohol content (BAC) is .08 or greater. It has remained the same for the last 23 years.

“Injury” can mean anything from bruises or a broken finger to major injuries and hospitalization. The only real distinction is that it must be something more than having been shaken up. The injury can be to the driver or passenger in another vehicle, a passenger in the intoxicated driver’s vehicle or a pedestrian.

A DUI with bodily injury is often called a “wobbler.” This means that it can be a misdemeanor DUI or a felony DUI, depending on whether you have a prior DUI or a criminal background; what county the offense occurred in; and the type of injury the other person sustained.

A person is considered to be “under the influence” if their physical and mental abilities are impaired to the extent that they cannot drive as carefully as a sober person would under the same or similar circumstances.

If you are charged with a felony DUI, you can possibly go to prison for two to four years, in addition to considerable other fines and penalties. These fines and penalties can be enhanced if the victim involved suffered great bodily injury (GBI). The court will assess fines of up to $5,000 and order attendance at a court approved DUI school for 30 months, in addition to suspending your driver’s license for five years. You will also be designated as a habitual traffic offender (HTO) for three years.

Having a felony DUI conviction on your record can have major ramifications that will last a lifetime, particularly if your job entails driving. You will lose your job. Even for individuals who do not drive for a living, it will make obtaining employment difficult when employers conduct criminal background checks. It will also make obtaining car or mortgage loans more difficult, as well as getting into a college or university of your choice.

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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.

When you are stopped for the suspicion of driving under the influence of alcohol, you are asked to take either a breath or chemical test at the site of the arrest. Additionally, you are asked to take a test at the station once you have been taken into custody. Whereas it is your right to refuse the preliminary breath test (the one administered at the scene of the arrest), you cannot refuse the test given at the station without additional penalty.

If you have refused to take both tests, there may be some legal defenses that will work in your favor. An experienced Los Angeles DUI attorney can prepare a powerful defense that will help strengthen any possible defenses that you may have.

One possible defense is if you have asthma and are unable to properly breathe into the machine in order to provide an adequate sample. Another valid defense is if for any reason you are physically unable to take the breath test. If there is a valid scenario rendering you incapable of giving a breath sample, you may have a defense against an additional penalty imposed due to refusal.

There is nothing illegal about drinking alcohol. There or is also nothing illegal about drinking alcohol and driving. It is only against the law to drive a motor vehicle with a blood alcohol level (BAC) of .08% or more.

The state of California created this law under section 23152 of the vehicle code. This law has a number of different sections which make it illegal to drive a motor vehicle under certain circumstances. 23152 (a) V.C. prohibits any person to drive a car when their driving ability is impaired by either alcohol or drugs or the combination. 23152 (b) V.C. prohibits driving by those people who have a blood-alcohol level of .08% or more.

When I asked my clients how much they have had to drink, the most common response is with a number. For example, clients will tell me they had a couple of drinks, a few glasses of champagne etc. Our average client speaks of their drinks like they were all the same. Nothing could be further from the truth. This oversimplification, is what commonly gets my clients in trouble. Although, counting and keeping track of what one has to drink is important, what you are drinking is just, and maybe more important than just the number.

The officer’s observations in the police reports that he completes after an arrest, are the basis for determining the relative strength or weakness of the state of California’s case against you.

In a driving under the influence arrest, the first critical element to evaluate is whether the officers had probable cause to stop you. In a DUI case, the more vehicle code violationssthe officers cite in their report create a stronger case for the prosecution. Vehicle code violations such as technical violations, like no license plates, or a tail light out although valid probable cause, create a weaker case for the prosecution.

Vehicle code violations like weaving, lane Straddling, or driving on the wrong side of the street, create a stronger case for the prosecution since they add a link for the prosecutor to build a case of a impaired driving.

My clients that have been arrested for a DUI often ask me if there are substances that canseffectively “fool” a breathalyzer machine. A Los Angeles DUI and Criminal Defense attorney who has been specializing for over thirty years, knows which of these are myths, and which of these substances have an actual effect on your breath test reading.

There are many common myths that some everyday substances like breath mints, onions and denture cream, if present in the mouth before taking a breathalyzer test, will yield a lower result. A knowledgeable DUI attorney will inform you that this is not the case. Additionally, a popular television show named Mythbusters determined whether these substances had an effect, if any, on the results of a breathalyzer test. Tests concluded that there was in fact no lowering affect.

Another common myth claims that placing a penny or battery on your tongue may have a lowering effect on the breath test reading. This is proven to be inaccurate, not to mention, would require some talent to discreetly place the object in your mouth, hold it there during the test, and remove after, without law enforcement taking notice.