Defenses:

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These are not outright dismissal issues, they are instead factors that may exist in any DUI case that can be used in negotiations with a prosecutor or in a trial in an attempt to sway a jury that there is insufficient evidence of guilt by a reasonable doubt standard. These are ‘core’ defenses, which are where all of the derivative defenses for DUI 23152 VC are formed.

 

• Riser Defense– this is where we can show a lower alcohol level in the street and a higher one at the station or where there is none taken in the street and a significant time between driving and the test at the station. It makes it difficult for the prosecution to prove that you were .08% at time of driving as well as whether you were impaired at the time.

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• Driver Issue– in those cases where they did not see you drive, but they arrest you based upon a belief that you drove. Riser defense comes into play as well here.

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• 3 Hour Rule– if they test you more than 3 hours between driving and test, they lose the presumption that you are DUI; law 23152(b) CVC.

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• Lack of bad driving– difficult for them to prove that you were impaired.

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• Good Field Sobriety Tests– also difficult for them to prove that you were impaired.

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• Necessity Defense– driving under the influence which, based on its necessity, serves to avoid a greater harm ex. driving a family member to a hospital in an emergency, where no ambulance was available.

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• Duress– someone forces you to drive under threat or force.

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• Unknown Consumption– someone ‘spiked’ the punch.

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• No DRE– on drug DUI cases, there needs to be a person certified to testify that you were under the influence of the drug at the time of arrest (Drug Recognition Expert).

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• Dental Appliances– can pool alcohol under bridges, partials and false teeth structures that give a false positive in the breath machine.

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• Diabetes– can create naturally produced alcohol in your blood.

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• Adkins Diet– there is a notable alcohol production, inside the body when someone is on a protein only diet for a decent amount of time and has carbohydrates for the first time that the diet ends.

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• Continuous Observation– in breath cases, the officer must observe (continuous) you for burping 15 minutes prior to the test.