Majority of driving under the influence, DUI, cases aren’t slam dunks for the prosecution. In fact, they hinge on the outcome of a blood or breath test. If a test was given and the result was .08 percent or higher, the driver is likely to be charged with DUI. That amount is above the legal limit in California.
A failed blood or breath test doesn’t always mean that you will necessarily be convicted of DUI or even that your blood alcohol concentration was over-the-limit. So don’t think you’re going to be automatically convicted of DUI if you fall into either category.
A skilled Los Angeles DUI attorney will provide you with an aggressive defense against the charges based on your breath or blood test. The exact defense will hinge on the examples of potential challenges:
1. The BAC test was influenced by an outside factor. Sometimes another factor can influence your arrest like the officer not properly conducting the test. Your attorney will investigate the details surrounding your test and present any evidence of procedure violations.
2. The BAC test was inaccurate because of “mouth alcohol.” DUI breath tests examine the air found deep in a person’s lungs. However, the test will inaccurately provide a high BAC result when there’s alcohol in a person’s mouth. Mouth alcohol can occur in the following situations:
- You vomit or belches within 15 minutes of taking the breath test • You have a medical condition like acid reflux or heartburn • You used mouth spray, mouthwash or had dental work prior to being tested. Dental work can allow substances such as alcohol and food to become trapped in teeth.
3. The police officer didn’t give you the 15-minute observation period required prior to administering the test. The state requires an officer to observe you for 15 minutes before administering the breath test. The observation must be continuous without any stop and starts. You can’t eat, drink, vomit, smoke or belch during the 15 minutes because it can create alcohol mouth.
4. The blood or breath test wasn’t conducted properly. California Code of Regulation Title 17 requires all chemical testing done a specific way when anyone is charged with DUI. The State wants all tests as accurate as possible. For example, the 15-minute waiting period is outlined in the regulation.
Other regulations include:
- How the breath or blood testing instruments are maintained
- How blood samples are collected and stored
5. Any violation of these regulations can greatly affect the outcome of the case.
- The breath test was administered after your BAC was still rising and you were behind the wheel. Alcohol takes some time to absorb into your bloodstream. The absorption rate varies depending on various factors including your:
- Metabolism
- Diet
- Weight
When alcohol is absorbed into bloodstream, it’s called "rising alcohol." For example, when you drink and then immediately drive, your BAC may be below California’s legal limit. It’s because the alcohol hasn’t fully entered into your blood stream yet.
However, if you are stopped one to three hours later, your BAC may be high. You might fail the breath or blood test. Why? Your body was in the process of absorbing the alcohol. Your BAC was higher at that point than when you were stopped behind the wheel of your vehicle.
You’ve been arrested for DUI in California. Now what? Well, first it’s essential to hire an experienced DUI attorney as quickly as possible. Time to build a defense and obtain evidence is valuable in a California DUI case. The Law Offices of Jonathan Franklin can use this valuable time to build a solid defense to fight your DUI charge.
