A very common misconception among most people who are arrested for DUI in Orange County, is that the prosecution automatically has a strong case and a conviction is imminent. The fact of the matter is that only you really know what happened that evening. Law enforcement knows a smaller portion of the night's events, and tries to document them all through the collection of evidence. The prosecutor in court knows even less than law enforcement, three degrees detached from the events that ultimately led to the arrest. What matters in court…is what can be proven through admissible evidence.
DUI defense is among the most complex and sophisticated areas of criminal law. In comparison to other misdemeanor prosecutions, DUI\'s require: probable cause to pull you over, probable cause to get you out of the car, observation evidence by the officer of intoxication, additional officer training to perform field sobriety tests, proper conditions and lighting for field sobriety tests, chemical blood test, breathe test machines and certifications.
It is important to keep in mind that rules and statutes not only govern the behavior for drivers, but also strictly govern a DUI investigation and the resulting arrest. Failure by law enforcement to follow these very detailed laws and guidelines with military precision can result in suppression of that evidence from court. When we win cases, its an almost certainty that a large component of that win was contributed to a lack of evidence available to a prosecutor. Unfortunately for most looking for a case review from an attorney, determining where a case may have weaknesses leading to an advantage requires months of investigation by a skilled DUI attorney.
Below is a list of the 10 most common areas of weakness:
ILLEGAL STOP OR SEARCH
The law requires adequate probable cause to stop a driver. Generally, law enforcement makes a statement that they witnessed a traffic law being violated. However, many times law enforcement pulls someone over for a headlight (which is its own probable cause), but then somehow transitions into a DUI investigation without additional probable cause. An illegal stop or search results in suppression of all evidence obtained from the illegal stop or search.
WEAVING OR SWERVING
Without question, the most common grounds for probable caused alleged by law enforcement in connection with pulling someone over for a DUI is "weaving" or "swerving". It is general, conveys no detail of the actual driving behavior, and often times used as a basis of embellishment in the actual police report. In response to the abusive use of this type of probable cause, the court has implemented a three (3) step test to determine if a person was really swerving. The driving must be (1) pronounced – meaning from line marker to line marker; (2) substantial – meaning occurring repeatedly for at least ¼ mile; (3) viewed by an officer licensed to make the determination. Inability to prove any of the above 3 elements results in the possible suppression of the evidence.
FIELD SOBRIETY TESTS
These standardized tests were designed by scientists in a laboratory, under perfect conditions, and are at best proven to be only 70% accurate. In fact, when administered to healthy and coordinated individuals, the one-leg stand is 65% accurate, the Walk and Turn test only 68%. Moreover the Horizontal Gaze Nystagmus is prone to being poorly administered, and difficult to read. The bottom line here is that these tests are scientific in nature, are intricate and difficult to administer, and need to be performed with military precision in order to be admissible.
FIELD BREATHALYZER MACHINES
The Preliminary Alcohol Screening (PAS) device is an extremely inaccurate and unforgiving machine. Despite the technological advances that we enjoy these days, the computer inside these machines belongs back in the 80's. The are prone to errors, misreads, and falling out of calibration. Additionally, the lack of a "slope meter" means that any particles of alcohol still remaining in your mouth can give results up to .15 above what you should be reading. The PAS device relies on outdated technology that assumes all drivers have the same physiology and body chemistry. This theory is outdated and has been proven UNTRUE since the invention and implementation of the PAS device.
BLOOD CHEMICAL TESTS
Title 17 of the California Code of Regulations mandates how blood, breath, and urine samples are to be administered and stored. Along with laying out specific rules on timing, anti coagulant and preservatives, and the refrigeration requirement, blood must be controlled in a consistent and traceable "chain of custody." The best part of my clients having a blood draw is that we have an opportunity to request a Blood Split. We get to have our lab unilaterally analyze the actual blood taken the night of the incident, and investigate dozens of areas that can lead to a sample being deemed "invalid."
NOT DRIVING THE CAR
An increasingly high number of our clients were arrested while parked, sleeping, or sitting in their vehicle. This scenario is a nightmare for a prosecutor, because the issue of probable cause, or reasonable suspicion in forced to center stage in court. Although the act of driving can be implied, the law only cares about whether or not you were impaired at the EXACT time that you were driving the vehicle. If you were parked when law enforcement approached the vehicle, proof becomes a pretty tall order for the prosecutor.
SQUAD CAR AUDIO/VIDEO
You may be unaware that most of the nights events were likely recorded by audio and video recordings in the officers vehicle and uniform. This information is available through subpoena, and often takes 30-60 days to acquire. Often times audio and video is the only opportunity to rebut what may be an embellishment in the police report. If the report says you belligerent and barely able to stand, but the video shows you walking just fine, and you are speaking clearly on the audio, you could have several arguments to cast doubt on the accuracy of the report.
ERRORS IN POLICE REPORT
Law enforcement are the investigative arm of the prosecutors office, and the information they put into the report is the lifeblood of the case. Almost all the work done in a DUI investigation is done pre-arrest. There is very few efforts put into the case, other than blood work, after the arrest has occurred. Therefore, the prosecutor seldom has an opportunity to go back and supplement information that was not included from the initial investigation. These types of scenarios result in a windfall for the defendant, but are only available if you request copies of everything in the prosecutor's possession to determine what he doesn't have.
THE DMV HEARING
The DMV hearing, or APS hearing, is just another opportunity to gather evidence that could potentially help your case. One unique attribute of the APS hearing is the opportunity to cross-examine the arresting police officer prior to trial. Unlike Civil cases, in criminal cases there is never an opportunity for a deposition. Therefore, the APS hearing is the only time an attorney has to question the officer, and get his testimony on the record in anticipation of trial. The officer must be subpoenaed to the APS hearing, and the state of California requires that the defendant (you) pay the costs.
Every good Criminal Defense lawyer wants to take every case to trial; whether every case is a good candidate for trial is another question. Working a case up from beginning to end, exploring every area of the case for strengths and weaknesses, and supplementing the information contained in the police report is always the best approach for trial prep. Going to trial is not a decision that should be made lightly, and a full investigation into the case is required before an educated decision can be made.