San Diego Criminal Defense

101 W. Broadway, Suite 1770 | San Diego, CA 92101

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San Diego Criminal Lawyer

San Diego DUI Defense Attorney

DUI/DWI Criminal Lawyer



Many San Diego DUI lawyers will tell you that because of their experience, they know something about DUI trials that other lawyers do not.  This is true, but only to some extent.  DUI charges can vary widely depending on the BAC of the driver, whether another vehicle or person was involved, and the defendant’s criminal history.




The first rule of criminal law is DO NOT TALK TO THE POLICE.  We cannot tell you to lie, but in almost every traffic stop, a police officer will ask you if you have had anything to drink today/tonight.  If you respond “yes,” to this question, they have reasonable suspicion of DUI and can request you perform a PAS (Preliminary Alcohol Screening), or a field sobriety test. In California, if you are over the age of 21 and do not have a history of DUI, you may refuse a PAS.  However, you may be arrested and forced to submit to a chemical test at the station.  During this time, the police may impound and also conduct an inventory search of your vehicle, without a warrant, if you have been lawfully arrested. 




There are a number of common defenses that have been successfully used to contest and win a DUI case at trial.  It is important to consult with a top San Diego DUI defense attorney, because only an experienced attorney can help you use these defenses with a high degree of success.  It is your San Diego DUI lawyer's job to evaluate your case to advise the best strategy for defense. Call today and we will help you find the best San Diego DUI lawyer for your case. 


1. A Breathalyzer (PAS Test) is NOT accurate.


Operator error and Device (Breathalyzer) error are common ways to win a DUI.  A police officer may improperly handle a PAS (Preliminary Alcohol Screening) instrument, or give improper explanations on use.  The instruments have been known to fail, malfunction, or give inaccurate or inconsistent readings. 


Your physical condition may also be a factor causing an error in a PAS test.  Conditions such as GERD and your diet can contribute to a false reading. 


Environmental factors, including radio frequency interference may also cause a false reading.


Breath testing with a PAS device is the most common way Police test for DUI.  They typically tell you, “If you just blow into this you can get out of here faster,” and some may even say, “If you’re close [to the limit] I’ll let you go.”  You can refuse a PAS test if you are over 21 and not on probation for a DUI.  There are consequences for refusing a PAS test if you are under 21, and/or on probation for DUI.  You must submit to a chemical test if you have been arrested for DUI, or else there are consequences (such as a 1 year suspension of your license – even if you are sober). 


Breath testing measures the amount of Alcohol in your breath and coverts that measurement into an approximation of your blood alcohol content.  The potential for error in a PAS test is high. 



2. Mouth alcohol can alter the accuracy of your California DUI breath test


Sometimes alcohol remains in your mouth, and you blow it into the Breathalyzer. There are many reasons for residual alcohol to linger in your mouth, including but not limited to:


  • Recent dental work such as a crown, or small amounts of food trapped in your teeth that have absorb alcohol.

  • Burping, vomit, and acid reflux (GERD) may move alcohol into your mouth from your stomach or esophagus.

  • How recent you last drank alcohol.

  • If you recently used mouthwash or Listerine strips.


San Diego DUI lawyers know how mouth-alcohol can contribute to higher Breathalyzer results, and how to apply this to your defense. 




3. Medical conditions can cause a false positive. 



Your medical conditions may actually cause artifically high readings.  A skilled San Diego criminal lawyer can help you retain the expert medical testimony you'll need to keep your record clean.  For example:


GERD, acid reflux, and/or heartburn can lead to artificially high DUI breath test results


Gastroesophageal Reflux Disease ("GERD"), acid reflux, or heartburn is a medically recognized condition that places alcohol in your mouth. 


When you suffer from this condition, alcohol moves from your stomach to your mouth along with stomach acid.  It is medically recognized that this condition can cause a higher than actual Breathalyzer (PAS) reading. 


Isopropyl Alcohol.


Diabetes – There is a medically recognized link to Diabetes and artificially high PAS results due to the body of that person converting alcohol sugars differently from a typical human body, resulting in Isopropyl Alcohol within the blood stream.


Hypoglycemia – Is a medically recognized condition that also creates Isopropyl Alcohol within the bloodstream. 




4. DIET – Low Carb High Protein Diet (Similar to the Atkins Diet)


Yes, you read that correctly. A person's diet has been shown to result in artificially high PAS test results. When a person is on a low carb high protein diet, they are deprived of carbohydrates, which would normally be turned into stored fat for energy.  This diet results in the body’s producing of ketones.  Ketones are converted into isopropyl alcohol and eliminated through the body by breath and urine.  Most California DUI breathalyzer intrustrments cannot differentiate between isopropyl alcohol (the type our bodies make) and ethyl alcohol (the type that we drink). A San Diego DUI lawyer understands exactly how to use a diet defense to win you a not guilty verdict.  



5.  "Rising Blood Alcohol" – You were not actually over the limit when you were pulled over. 


Because alcohol takes time to absorb in your body, you may not be DUI at the time you were pulled over. Often, people are close to the limit, and the police may re-test after 15 minutes of continuous observation, and record a BAC over the legal limit. Your body is exhibiting what is called “Rising Blood Alcohol” – meaning that you body is still absorbing alcohol.  The reading at the time of your test is not relevant, what is relevant is the reading at the time of your driving.  The “Rising Blood Alcohol” defense is often successful, and can be applied to both the Breathalyzer (PAS) test, and the Chemical Test (Blood). 























As you can see, your blood alcohol rises sharpely in the hour after your last drink.  It is not uncommon for police to wait 15 minutes between PAS tests, and in that time you can go from below the limit to above the limit. A San Diego DUI lawyer can use this as a defense because the relevant BAC level is the level when you were driving, not the BAC level when the test was administered.  




6. California DUI blood testing may not be accurate. 


Blood testing for a DUI in California can be inaccurate:


  • The blood could ferment.

  • The sample could be improperly stored or contaminated.


Blood samples are not tested immediately, or even on the same day.  They have to be stored somewhere.  If there are circumstances surrounding your sample’s storage, then a San Diego DUI Lawyer can suppress that evidence.  If that suppression is successful, and the blood evidence is excluded, your case must be dismissed under Vehicle Code 23152(b) VC. 



7. Known violations of California Code of Regulations Title 17


California Code of Regulations (CCR) Title 17 sets guidelines for:


Gathering, transporting, storing, and analyzing DUI chemical (blood) tests. 

The police do not always follow these guidelines.  Some common examples of how Police fail to follow these guidelines are:


A trained technician is not the person who draws your DUI blood sample,




The instrument has not been calibrated within the timeframe set-forth by the code, or by the procedure set by the code.


A San Diego criminal lawyer can use Title 17 to exclude your chemical test results from evidence, however even if its not excluded this defense can create “Reasonable Doubt” and win you a not guilty verdict. 




8. Lack of Cause to stop your car


In order for the police to STOP your car, detain you for a DUI investigation, or arrest you for a DUI they must have reasonable suspicion that you are engaged in criminal activity.  The fact that your car was seen leaving a bar or restaurant is not a reasonable suspicion that you were committing a DUI and not reason enough to pull you over.  In order to arrest you for a DUI, they must have probable cause that you have committed the crime. 


It is enough to generate probable cause if you:


  • Admit that you have been drinking prior to driving

  • Fail a field sobriety test

  • Blow a .08 or higher on a Breathalyzer (PAS) test


Just because you have been arrested for a DUI, does not mean you will be convicted.  DO NOT SAY ANYTHING TO THE POLICE WITHOUT A LAWYER PRESENT. A skilled San Diego DUI lawyer knows that evidence obtained without probable cause is often excluded, and typically results in San Diego DUI charges being dismissed or reduced.



9. The officer didn't advise you of your Miranda rights


A police officer does not have to advise you of your Miranda Rights.  It’s a common misunderstanding, but even if you are being arrested, they do not have to advise you of your Miranda rights.


However if you have been arrested, and the officer is performing a custodial interrogation, then your statements may not be used as evidence unless an officer has advised you of your Miranda rights. 


A "custodial interrogation" is when an officer is attempting to gather incriminating statements. 


The exclusion of such statements could result in a California DUI charge being dismissed or reduced. 




10. False Physical Symptoms of DUI


Police officers almost always claim the suspect exhibited symptoms of alcohol usage.  These symptoms include:


  • red/watery eyes,

  • a flushed face,

  • slurred speech,

  • an unsteady gait, and

  • had the odor of an alcoholic beverage on your breath.


There are common and innocent explanations for all of these physical characteristics including, but not limited to:


  • Allergies,

  • Physical Injury

  • The sun

  • Fatigue

  • Illness


An experienced San Diego criminal lawyer knows how to convincingly utilize this defense to your benefit. These phsyical symptoms are extremely relatable to the majority of Americans, but you need a San Diego DUI lawyer who can use this defense potentially exclude evidence if there was no reasonable likelihod of criminal activity. 



11. California field sobriety tests (FSTs) are not accurate tools for measuring impairment/sobriety.


There are 3 standard DUI Field Sobriety Tests:


  • The Horizontal Gaze Nystagmus Test

  • The Walk & Turn Test

  • The One-Leg Stand Test


There are also Non-Standard Field Sobriety Tests


  • The Hand Pat Test

  • The Finger to Nose test

  • The Rhomber Balance Test

  • The Finger Count Test


Only the three standard tests have measurable data on their reliability, and that data shows between 65-77% accuracy for detecting impairment...and they are rarely administered properly.  That’s reasonable doubt!


There are also many reasonable explanations for poor test performance, such as:


  • officer-induced intimidation,

  • bad weather conditions,

  • poor lighting,

  • uneven surface conditions, and

  • awkward footwear, such as boots, dress shoes or high heels


These factors have nothing to do with alcohol and/or drugs, and are often the cause of an FST “fail.” A skilled San Diego DUI lawyer knows how to cross-examine a police officer to convince a jury that the FST was innacurate. 




12. There is reasonable doubt if DUI was the cause of “bad driving”


Not all driving mishaps are DUI related.  The majority of times a driver is sober when they commit one of these infractions


  • Weaving,

  • speeding, and even

  • erratic driving


There are many reasonable explanations for this, but a skilled criminal defense attorney knows that sometimes these explanations can still leave the door open for punishment.


Behaviors such as:


  • Trying to avoid another erratic driver,

  • eating,

  • texting

  • trying to play a CD, or song on your phone

  • trying to pick up something that dropped, or

  • being distracted by your passengers


These are logical reasons why a person might swerve, speed, or drive erratically.



13. The Error Rates for Chemical Testing are high.


In addition to imperfect testing conditions, sometimes the testing equipment has been improperly maintained and/or not calibrated. Regardless of perfect testing conditions and equipment condition, there are inherent error rates in DUI chemical tests.


Experts testify to the fact that California DUI chemical testing has a +/- error rate of between 0.005-0.02%.  This leaves open a possible challenge for test results between 0.08-0.10%, since they could be lower than the minimum 0.08% required by Vehicle Code 23152b driving with a BAC of at least 0.08%.



14. Illegal San Diego DUI sobriety checkpoints


It is not uncommon for a person to be the victim of an Illegal DUI checkpoint.  Some examples of the legal requirements that are not followed are:


  • Lack of a supervising officer to organize and oversee the checkpoint,

  • Setting an adhearing to a pre-determined formula for stopping cars (to ensure lack of profiling), AND

  • Publically advertising the roadblock.  (Click here to see publically advertised DUI checkpoints in San Diego). 


An experienced San Diego DUI defense attorney can help you determine if this is a viable defense. 



15. Radio Frequency Interference (RFI)


This a real defense. All electronic devices, including Breathlyzers (PAS devices), are susceptible to RFI or EFI (electromagnetic interference). It’s just a product of the world we live in. This is especially prevalent downtown San Diego around trolley stops (ask a person who lives by a San Diego trolley stop how many times a day the wifi can go out or slow down because of RFI/EFI). A skilled San Diego DUI lawyer can retain an expert to testify that:


Nearby radio waves from a variety of sources can cause RFI/EFI:


  • Police patrol cars

  • Magnetic and Electric door locks such as those in crime labs

  • Cell phones,

  • Trolleys or Busses (especially those full of passengers or equipped with wifi).

  • fluorescent lights, etc...



16. The numbers don’t add up


If there is a large gap between your BAC and the level of impairment described by the officer, it may be reasonable doubt as to accuracy. Officers are trained to observed and report the level of impairment of a DUI suspect, however, many times an officer will fail to put it in writing.  If you exhibit no impairment or very little impairment, and yet your BAC was very high, there is a strong argument that the instrument malfunctioned or there was user error in the testing. 



17. You weren't "driving", "drunk" 


TRUE STORY: I was t-boned by a drunk driver who ran a stop sign.  The drunk driver got out of his car, and walked into a bar that was at the intersection where the accident occurred.  He ordered three shots of whiskey, and downed them before I walked in the door.  This person knew that the police could not prove he was “driving under the influence.” There is simply no way to determine if his blood alcohol was the result of his recent drinking, or drinking done prior to driving. 


Similarly, if you are in a parked car, you cannot be convicted of DUI – because you were not, "driving."



18. Police Misconduct


If the police did not follow proper procedure, then it is possible to have your DUI charges dismissed or reduced.  If there are inaccuracies in the police report, a failure to adhear to Title 17 procedures, or inaccurate court room testimony, the prosecutor may not wish to proceed with your case.