In most DUI cases, the BAC results are .08% or above, and a common public misconception is that this means you must be guilty of a DUI. Breathalyzer devices both in the field and at the station are maintained and calibrated according to Title 17 guidelines, and these records are provided upon request to the DUI attorne
California Vehicle Code § 23152(b) states, “It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.”
Most prosecutors know that if the case goes to trial, and the person is charged with both VC §§ 23152(a) and (b), then they really only need to convince the jury to convict on one of the charges. For example, if a jury finds a defendant Not Guilty on the (a) count, but Guilty on the (b) count, that person will be convicted of a Misdemeanor DUI, and will suffer the same consequences as if they were convicted of both charges.
A DUI attorney knows that both charges are equally as important, and that a “split verdict” as described above, does not help their client. Thus, it is important for an attorney to understand the science involved in DUI charges, when the allegation is that the BAC was .08% or above. This is really the only way to challenge a prosecutor and their expert forensic toxicologist in court.
CalCrim Jury Instruction No. 2111 states, “If the People have proved beyond a reasonable doubt that a sample of the defendant’s breath was taken within three hours of the defendant’s alleged driving and that a chemical analysis of the sample showed a blood alcohol level of 0.08 percent or more, you may, but are not required to, conclude that the defendant’s blood alcohol level was 0.08 percent or more at the time of the alleged offense.”
This instruction essentially means that the jury can presume someone was 0.08 percent or more at the time of driving, if the prosecutor proved they were 0.08 percent or more at the time of testing. It is critical that your DUI attorney knows and understands the case law behind this presumption. The case law describes this language as a “permissive inference,” which means that this presumption may be rebutted by scientific facts presented by the defense. Furthermore, this specific portion of the instruction may be stricken, which means never even read to the jury. But, you need a good DUI attorney that is well prepared to spot these issues, and to argue these fine points that can make or break your case.
California Vehicle Code § 23152(e) states, “It is unlawful for a person who is under the influence of any drug to drive a vehicle.”
California Vehicle Code § 23152(f) states,
“It is unlawful for a person who is under the combined influence of any alcoholic beverage and drug to drive a vehicle.”
The bottom line is that an untrained attorney doesn’t stand a chance, if they don’t understand how the body works in conjunction with the consumption of alcohol or drugs, the various weaknesses in present day field sobriety and chemical testing by law enforcement in California, and the current case law related to the field of DUI.
However, a trained DUI attorney knows lots of scientific facts on their side that tend to reoccur in DUI cases. Issues about the “inherent” lack of scientific reliability in both breath and blood testing, the poor methods of testing and imprecise devices used by law enforcement, false-high BAC readings during the absorptive phase, consumption of food delaying the absorption of alcohol, delays in chemical testing while rising BAC, poor blood sample preservation techniques and fermentation, numerous peer-reviewed articles, and scientific studies supporting the lack of reliability in chemical testing used by California law enforcement officers.
It is important for every client at The Law Office of Ben Mironer to understand the charges against them and all of their possible defenses. We bring peace of mind by educating our client’s as to the science, as well as the substantive legal issues behind their DUI defense. The only way to ease your mind, after a DUI arrest, is to hire an attorney that can show you a level of expertise that makes you feel like you’re in good hands.