DUI Survival Tips in Los Angeles
Don’t Settle for Your Charges Without Learning DUI Defenses
For many drivers, a DUI charge is uncommon and unexpected. As a result, a significant amount of people are unaware that a DUI accusation does not indicate guilt, since a variety of flaws occur throughout a DUI traffic stop. An officer can make mistakes and DUI testing equipment isn’t entirely reliable. These are some of the various reasons you shouldn’t accept your DUI charges without questioning each aspect of your encounter with the arresting officer.
A Los Angeles DUI attorney at Sturm Law can evaluate your situation and identify defects in the procedures, testing and investigation involved in your DUI stop. Unlike many lawyers, attorney Craig Sturm obtains advanced DUI training in field sobriety tests, analyzing scientific evidence and roadside impaired driving enforcement. Further, he owns multiple breathalyzers and instructs others on how to use the DataMaster DMT. These are some of the various advantages you can enjoy when you put Sturm Law on your side.
Factors Affecting a DUI Charge
Don’t settle for your DUI charge without questioning every element involved in your situation, beginning from the traffic stop. An experienced Los Angeles DUI lawyer will raise questions and defenses that can strengthen your case, such as the ones below.
GERD or Heartburn Caused a Falsely High DUI Breath Alcohol Test Result
Suffering from Gastroesophageal Reflux Disease (GERD), acid reflux or heartburn can “fool” the DUI breath machines, causing an inaccurately high reading of the blood alcohol level. The breath machine is supposed to receive and measure alcohol from the deep lung tissue, a region of the lungs called the alveoli. Breath alcohol concentration (BAC) from this “alveolar air" or “deep lung air” is deemed to correlate with blood alcohol concentration.
GERD can cause alcohol to travel from the stomach back to the throat and mouth. When this happens, the DUI suspect blows this “mouth alcohol” (rather than alveolar air alcohol) into the breath machine. The machine then provides a reading higher — oftentimes dramatically higher — than the DUI suspect’s true BAC. A person with a true BAC of .05 can read .20.
This problem is not limited to those who suffer from regular or chronic GERD. Anyone who recently ate a large, greasy or spicy meal may experience acid reflux or heartburn. Thus, if you take a DUI breath test during this period, the results may be erroneously high.
The Arresting Officer Failed to Read Your Miranda Rights
The police must advise you of your Miranda Rights in a DUI case if you are in custody and they ask questions that elicit an incriminating response. If the officers continued to interrogate you after placing you in custody for DUI and did not first read your Miranda Rights and obtain a valid waiver, then your post-custodial statements will likely be excluded from evidence.
Weaving in Your Lane Does Not Justify a DUI Traffic Stop
Many DUI traffic stops occur because the officer claims to observe the DUI suspect weaving within their lane, perhaps with the tires touching the fog line or yellow lane divider, or briefly contacting the neighboring lane. Courts have ruled that this usually does not justify a DUI traffic stop unless an “experienced officer” observed “pronounced weaving” for a “substantial distance.” If the court finds that your traffic stop was not justified, your entire DUI case will most likely be dismissed.
Alcohol on Your Breath Does Not Mean You Were Under the Influence
In explaining why they made a DUI arrest, the officer almost always mentions smelling “a strong odor of alcohol on the suspect’s breath.” But the officer looks foolish on cross-examination when they admit that alcohol itself (ethanol) has no odor. Rather, it’s the mixing agent or flavoring that produces the odor we associate with alcohol. If you doubt this, buy a 6-pack of O’Doul’s. It tastes and smells just like beer, but it contains no alcohol.
Indeed, laboratory studies show that police officers’ perceptions of how strongly a person’s breath smells of alcohol don’t correlate with the actual blood alcohol level. All that can be concluded from the “odor of alcohol on the breath” is that a DUI suspect probably consumed some alcohol recently. But it does not provide evidence that the person drank enough to be under the influence or have a BAC .08 or higher.
The Arresting Officer Lacked Probable Cause for Your DUI Arrest
After conducting the roadside DUI investigation, the officer can only arrest you (apply the handcuffs and take you away for a chemical test) if they have probable cause. This means the evidence must rise to a level in which a reasonable DUI officer would believe a crime (drunk driving) has been committed.
You are entitled to a special court proceeding called a “suppression hearing” or “1538.5 hearing” in which a judge decides whether the DUI officer had probable cause for your arrest. At the hearing, the officer testifies and gets cross-examined by your DUI defense lawyer.
Our firm conducts this hearing routinely in DUI cases. If the judge decides your arresting officer lacked probable cause, then the subsequent breath or blood alcohol test is excluded from evidence. Often, the entire case is dismissed.
In practice, judges usually side with the prosecution at the suppression hearing, finding that probable cause existed. Still, the hearing provides an invaluable opportunity to question the officer and confront them about the problems with the DUI investigation. This often leads the prosecution to reduce the charge or to settle the DUI case on terms more favorable to the defense.
There Are Alternative Explanations for Your Faulty Driving
Perhaps the DUI officer saw you swerving for a short distance, make a wide turn or drift out of your lane. Of course, they will perceive these as signs of drunk driving. But in reality, sober drivers engage in these behaviors all the time. How often do you see a car drifting around in its lane, only to look over and notice the driver is on their cell phone? Or reading a map? Or eating?
Usually, the “bad driving” a DUI officer observes is just as consistent with a distracted or inattentive but otherwise sober driver, as it is with a drunk driver.
The Alleged Signs of Your DUI are Signs of Fatigue
Many of the typical symptoms associated with DUI can be explained by fatigue. Sheer exhaustion, having bloodshot and watery eyes, responding slowly to questions, struggling with field sobriety tests that require vigilance and good coordination are cues of exhaustion that an officer can mistake for intoxication. Your DUI defense attorney must argue these non-alcohol-based explanations for the officer’s observations.
Your Blood Alcohol Level Was Rising
A DUI suspect can blow a .15 at the police station but have had a .07 BAC when they got pulled over. Why? Because alcohol takes an average of 50 minutes or even up to three hours to absorb fully into your bloodstream and create your peak blood alcohol level. This is critical to consider especially if the DUI traffic stop occurred relatively soon after you finished drinking.
When you got pulled over, your BAC was probably still rising. This means that even if your BAC was above .08 when you got your blood drawn or breath test taken at the police station (or hospital), it may have been below .08 when you were driving. There is no law against having a BAC above .08 at a police station; it’s only the blood alcohol level while driving that counts for DUI purposes.
The Officer Conducted an Improper 15-Minute Observation Before the Breath Alcohol Test
California regulations require the officer to watch the DUI suspect continuously for at least 15 minutes before administering the breath alcohol test. The officer must make sure that during this period, the person does not consume anything, burp, belch, hiccup or regurgitate. Any of these may cause alcohol to travel from the stomach to the mouth. Blowing this “mouth alcohol” into the breath machine triggers an exaggeratedly high BAC reading.
Officers rarely follow this required observation procedure. They usually handle paperwork, write reports, set up the machine and converse with their partners, diverting their attention from the DUI suspect who must be watched vigilantly during this period. Failure to follow this procedure casts doubt on the validity of the test results and can sometimes get the test dismissed from your DUI case altogether.
The Police Officer Lacked Justification to Make a DUI Traffic Stop
Police officers cannot pull you over arbitrarily. To conduct a lawful traffic stop, the DUI officer must provide specific articulable facts indicating a reasonable suspicion that you were committing a traffic violation. You are entitled to a special court proceeding called a suppression hearing, where a judge determines whether the DUI officer can meet this standard. If they cannot, your DUI case will likely be dismissed.
Failure to Comply with California’s Title 17 Regulations
California Code of Regulations Title 17 establishes procedures that must be followed by anyone administering DUI blood or breath alcohol tests, but officers break these regulations all the time in DUI investigations. A failure to follow such regulations can cause the BAC test results to be attacked or excluded from evidence altogether.
Inherent Error Rate in DUI Blood and Breath Alcohol Testing
Let’s assume the maintenance and calibration of the BAC machines are perfect, the BAC test is administered according to the procedure and there are no background or physiological factors that would produce a false result. By the way, this “perfect scenario” is rare.
Despite this ideal situation, there would still be an inherent error in both blood alcohol test procedures. Most experts agree the inherent error rate is about +/- .02 for DUI breath testing and +/- .005 for DUI blood testing.
The Arresting Officer Had No Baseline for Your Performance on the Field Sobriety Tests
The DUI officer will probably claim that you performed poorly on the field sobriety tests and that the results are evidence of impairment. “Poorly” compared to what? This claim means very little without knowing how you would perform normally and sober. Indeed, people’s abilities and inabilities vary tremendously, therefore an officer won’t know how they perform on DUI field sobriety tests.
A person’s completion of the field sobriety tests depends on many factors: The natural level of coordination and equilibrium, the natural level of balance, fitness level, composure in the face of pressure, injuries, age and practice, among others.
Factors Other Than Alcohol Can Cause Poor Performance on the Field Sobriety Tests
Even if you performed less than perfectly on the DUI field sobriety tests, this may be attributable to unfair test conditions such as:
- Uneven surfaces or slippery terrain
- The distraction of flashing lights and traffic whizzing by
- The test area being too dark or amidst glaring lights
- Cold temperatures, rain or wind
- Unsuitable footwear such as boots, high heels or dress shoes
- Nervousness, anxiety and/or frustration
Most people who had nothing to drink would still struggle with the FSTs under these conditions. If you struggled on the roadside tests, this may be due to the setting and circumstances rather than your alleged intoxication.
The Field Sobriety Tests Were Improperly Administered
The National Highway Traffic Safety Administration (NHTSA) devised national standards for how DUI officers are to administer the three standardized field sobriety tests: The Horizontal Gaze Nystagmus Test, the Walk-and-Turn Test and the One-Leg Stand Test. But DUI officers often fail to follow these national guidelines. Many officers never received training on the NHTSA guidelines, opening up their whole DUI investigation to attack.
A DUI officer will often report that the DUI suspect failed or performed poorly on the field sobriety tests, but when the performance is judged according to NHTSA’s national standards, the person did everything correctly! This underscores a basic fact of DUI defense: The arresting officers are biased and frequently conduct flawed DUI investigations, therefore their claims and opinions should never be taken at face value.
The Non-Standardized Field Sobriety Tests Lack Reliability
The non-standardized field sobriety tests include (among others) the finger-to-nose test, finger count test, hand pat test, coin pickup, alphabet test, reverse counting test and Romberg test (tilting your head back and estimating 30 seconds). The National Highway Traffic Safety Administration (NHTSA) has set no standards for how to administer, score or interpret these tests, and no studies have ever proven them to be reliable signs of impairment.
Field Sobriety Tests Poorly Measure Impairment
Even when the standardized field sobriety tests are administered perfectly (which is rare), they still provide a very inaccurate measure of whether a DUI suspect is impaired. According to NHTSA, for example, the one-leg stand test has a 65% accuracy rate and the walk-and-turn test a 68% accuracy rate.
This means that if people were convicted based on these roadside tests, one-third of them would be innocent and wrongly convicted. Or viewed another way, when officers arrest DUI suspects based on failing these tests, one in three suspects are wrongfully arrested.
Mouth Alcohol Can Contaminate the Breath Alcohol Test Results
Ideally, DUI breath testing devices detect alveolar air of the deep lungs, which is loosely correlated with blood alcohol level. But the breath testing machine can be “tricked” by latent alcohol in the mouth, often caused by burping, belching, or the recent use of cough syrup, cold medicine, mouthwash or breath spray.
When the breath testing machine picks up mouth alcohol rather than deep lung air, it gives higher BAC readings than what’s true. This becomes a particular problem for DUI arrestees with dentures, denture adhesives, braces, cavities, food impactions, orthodontic work or who have food particles trapped between their teeth (as all of these conditions tend to produce mouth alcohol).
Blood-Breath Partition Ratio Is Inaccurate Based on Individual Differences
DUI breath testing assumes that breath alcohol accurately reflects blood alcohol based on a 2100-to-1 partition ratio. This assumption rests on the proposition that the average ratio across the population is 2100-to-1. But studies reveal that the ratio of blood to breath varies greatly among individuals.
A DUI suspect with a ratio lower than 2100-to-1 will generate an inaccurately high reading from a breath alcohol test. And there’s no way to determine what a given person’s ratio is, or what it was at the time of the DUI breath test.
The Breath Alcohol Tests Yield Unduly High Results During Absorption
Breath alcohol testing while alcohol is still absorbing into your bloodstream often yields falsely high BAC readings. During the absorption stage, which can last as long as three hours after you finish drinking, the BAC in arterial blood is significantly higher — as much as 60% higher — than the BAC in venous blood. Because the alveolar deep-lung air blown into the breath machine is bathed in arterial blood, not venous blood, a falsely high BAC is generated.
The Police Have no “Special Ability” to Judge Intoxication Levels
Police and DUI prosecutors like to suggest that trained and experienced officers have a special ability to discern when a DUI suspect is under the influence and jurors should, therefore, trust the officer’s opinion that the DUI defendant was impaired.
But a controlled study by Rutgers University’s Alcohol Behavior Research Laboratory found otherwise. Police officers’ ability to judge intoxication levels was no more accurate than that of bartenders or social drinkers. Moreover, none of the three groups (experienced police officers, bartenders and social drinkers) correctly judged levels of intoxication more than 25 percent of the time.
No Signs of Mental Impairment
Being under the influence consists of two types of impairment: Mental and physical. Most police will admit that upon being pulled over, the DUI suspect was coherent, alert and responded appropriately to the officer’s questions. Therefore, no sign of mental impairment existed.
But, as any DUI toxicologists will tell you, mental impairment always precedes physical impairment. So, if mental impairment was not present, then, presumably, neither mental nor physical impairment was present.
Innocent Explanations for Intoxication Symptoms
Police officers usually claim to have observed certain objective symptoms of intoxication in the DUI suspect. The standard list includes:
- Bloodshot and watery eyes
- Slurred speech
- A flushed face
- An unsteady gait
DUI police reports feature pre-printed boxes for these symptoms that officers merely check off. Of course, the officers rarely photograph, videotape or audiotape the DUI suspect so that jurors can later judge for themselves whether and to what extent these symptoms were present.
In any event, non-alcohol causes often explain these observations. For example, fatigue, allergies and eye strain cause bloodshot eyes. Nervousness, embarrassment and anger over the DUI traffic stop cause flushing. Intimidation and fluster cause slurred speech.
The officer rarely takes these innocent explanations into account, so the DUI defense attorney must emphasize to the jury that the evidence is just as consistent with non-alcohol explanations as it with intoxication.
Speeding Is Not Correlated with DUI
In many of our DUI cases, the officer pulled our client over for speeding and alleges our client to be under the influence based (at least in part) on their reported speeding. But national studies demonstrate no correlation between speeding and intoxication. A speeding driver is no more likely to be drunk than sober. To be sure, speeding is often unsafe and a violation of the law in its own right but is not evidencing the driver is DUI.
Radio Frequency Interference May Have Contaminated Your BAC Tests
Radio waves in the air, known as Radio Frequency Interference (or RFI), can alter the results of almost any DUI blood or breath alcohol testing device. Radio Frequency Interference can disturb the electronic circuitry of Los Angeles County’s Datamaster, San Bernardino County’s Dräger Alcotest 7110, gas chromatographs and mass spectrometers, resulting in exaggeratedly high blood alcohol readings.
RFI emits from almost any electronic device, including police radios, police scanners, radar devices and computers. Although studies have confirmed the danger of RFI or electromagnetic interference to render false BAC readings, it is difficult to determine whether or to what extent RFI altered the result in a given DUI case. Thus, it is one more reason for skepticism.
Breath Testing Machines Mistake Other Chemicals for Alcohol
DUI breath alcohol testing machines also detect non-alcohol compounds that they frequently mistake for alcohol. Among the compounds most commonly mistaken for alcohol are ethylene, toluene, nitrous oxide, diethyl ether, acetonitrile and isopropanol.
The presence of any of these compounds in the DUI suspect’s lung tissue will likely cause a false or falsely high blood alcohol reading. Attorney Craig Sturm usually finds that people frequently ingest these compounds at work or in other environments where such chemicals are present.
Low-Carb Diets Cause Falsely High DUI Breath Test Results
A DUI suspect on a low-carb diet may generate an erroneously high blood alcohol reading from the DUI breath testing machines. On a high-protein diet, the body produces ketosis as it burns stored body fat for energy (a process that has produced dramatic weight loss for many followers of Adkins-style diets).
Consumption of carbohydrates such as alcoholic beverages during ketosis can cause the body to produce a substance called isopropyl alcohol. Most DUI breath testing machines cannot distinguish isopropyl alcohol from ethanol (the impairment-causing alcohol that we drink).
Breathing techniques may produce falsely high breath test results. A longer breath sample of more than 10 seconds may generate a significantly higher BAC reading because the machinery is calibrated to test a 10-second sample. Additionally, a person who breaths shallow or holds their breath may blow residual mouth alcohol, producing a higher reading than their true BAC. Hyperventilation may also impair the test.
Breath Temperature May Affect Breath Test Results
Most DUI breath devices calibrate to test breath at 34 degrees Celsius. Simulator solutions use the same temperature. But when a DUI suspect’s breath temperature varies, which is often the case, this can produce a falsely high BAC result. Even a variation of only one degree higher can produce a BAC reading 7% higher.
A Disconnect May Exist Between Your BAC and Intoxication Symptoms
Certain symptoms of intoxication can predictably be observed at each successively higher blood alcohol level. Often there are DUI cases where the person’s BAC reading comes back two or three times the legal limit.
However, the person’s driving, behavior and FSTs are consistent with sobriety or only slight impairment, indicating that the BAC reading is wrong because it doesn’t match the other evidence. This is called a “disconnect case.” Any time the alleged BAC level does not match up with the symptoms expected to be seen at that level, the prosecution’s whole DUI case is called into question.
Retain Sturm Law to Defend Your DUI Case
The Los Angeles DUI lawyer at Sturm Law obtains rare yet valuable training in DUI testing and procedures, meaning he knows what it takes to successfully advocate for your freedom. Attorney Craig Sturm’s DUI education, training and experience is unmatched; discover the difference a competent DUI lawyer can make in your case by contacting (323) 395-5221 to hire Sturm Law!
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