If you’re charged with a DUI in California there are a number of potential mistakes, errors and complicating factors associated with the process that, if they occur or are relevant to your case, can allow you to beat the charge. A Los Angeles DUI attorney with expertise in the field can help improve your chances of beating a DUI charge by investigating the circumstances of your DUI arrest to determine if any of the following factors apply:
A breathalyzer (PAS Test) is inaccurate
This can happen if the operator doesn’t properly handle a PAS (Preliminary Alcohol Screening) device, or provides improper explanations on its use. In addition, these instruments at times have malfunctioned or given false or inconsistent readings.
Using a PAS device for breath testing is the main way police run tests for a DUI. If you are above the age of 21 and not subject to probation for a DUI you can decline to take a PAS test. If you are on probation for a DUI or under the age of 21 there are consequences if you refuse to take the test. If you have been arrested for DUI in California you must take a chemical (blood) test or else suffer consequences such as the suspension of your license for 1 year.
The PAS test measures how much alcohol is in your breath and then converts the measurement to a level that approximates the alcohol content in your blood. This process has a high potential for error. There are a variety of reasons residual alcohol can remain in your breath and change the accuracy of a California DUI breath test. These include having had recent dental work that traps small amounts of food in your teeth that has absorbed alcohol. Acid reflux (GERD), vomit, or burping can cause alcohol to go into your mouth from the stomach or esophagus. Recent use of mouthwash or Listerine strips can also cause residual alcohol to remain be present in your breath.
Medical conditions can lead to false positive results
The following medical conditions have been known to cause false positive reading for DUI:
- GERD (Gastroesophagal Reflux Disease): Also known as acid reflux, GERD is a medical condition that can cause alcohol to be present in your mouth.
- Diabetes: This condition can result in artificially elevated PAS results as it causes the body to convert alcohol sugars in a manner different than it is normally done, causing isopropyl alcohol to be present in the blood stream.
- Hypoglycemia: This medical condition can create Isopropyl Alcohol within the bloodstream.
Diets that are low in carbs and high in protein can result in the production of ketones by the body. These are then converted to isopropyl alcohol and eliminated from the body by breath or urine. Breathalyzer instrumentation in California is not always able to tell the difference between ethyl alcohol from drinking and isopropyl alcohol made by our bodies.
Rising blood alcohol
Alcohol is not absorbed in your body immediately as the process takes time. As a result, you may not have actually been over the limit at the time you were pulled over. If you are close to the limit, the police may re-test you after 15 minutes of continuous observation to capture a BAC that is above the legal limit. In this case your body may be undergoing what is called “rising blood alcohol” – indicating that your body is still in the process of absorbing alcohol. However, the reading at the time of your test is not relevant to a DUI: the relevant measure is what was the reading at the time you were driving as indicated by the test you were given right after you were pulled over. This defense, known as the “Rising Blood Alcohol” defense has been used to successfully contest both breathalyzer (PAS) and chemical test (blood) results. It is not unusual for police to wait 15 minutes between administering PAS tests, bringing the Rising Blood Alcohol defense into play.
Other grounds for contesting a DUI charge include:
- California DUI blood testing may be inaccurate
- Violations of Title 17 of the California Code of Regulations: This code applies to the gathering, transportation and storage of DUI chemical tests
- Lack of a valid cause to stop your vehicle
- No notification of Miranda rights if such notification was warranted
- False DUI physical symptoms: Alleged DUI symptoms may be caused by other factors
- California field sobriety tests (FSTs) may not accurately measure sobriety level
- Reasonable doubt exists as to whether poor driving was caused by DUI: Other factors unrelated to sobriety may be the cause of erratic or poor driving
- High chemical testing error rates
- Environmental factors such as radio frequency interference can result in false DUI test readings
Schedule Your Free Case Evaluation
The attorneys at the Omofoma Law Firm are experienced DUI lawyers who can help you fight your charges. As top criminal defense lawyers in Los Angeles, we serve clients throughout Los Angeles and Orange County, including Huntington Park, Alhambra, and Monterey Park.
We’re available 24/7 to provide you with a free case evaluation. Give us a call at (213) 455-4050.