DUI Defense

A Santa Barbara DUI defense involves a comprehensive analysis and varies substantially depending upon the unique factors and circumstances of each unique DUI case.

DUI Suppression Motion (PC 1538.5)

The 4th Amendment of the United States Constitution protects the citizenry by prohibiting unreasonable search and seizure. This means that a law enforcement officer cannot stop you without a warrant, unless the circumstances fulfill one of the many “warrantless exceptions.” Accordingly, every DUI defense attorney should first analyze the circumstances surrounding the initial contact with law enforcement, whether it was a DUI checkpoint, an alleged California Vehicle Code violation, or any other purported reason. In the DUI context, the criminal defense attorney should consider filing a motion to suppress evidence under California Penal Code Section 1538.5, if the officer’s initial seizure of the defendant was without a properly issued warrant or without probable cause. At this “suppression hearing,” the DUI defense attorney would have the opportunity to question the officer and fleshing out facts before making legal arguments. If the court grants the 1538.5 motion then all evidence obtained by the officer would be “suppressed,” meaning the DUI and any other criminal charges would all be dismissed for insufficient evidence. Even if the suppression hearing is not successful, any statements made by the officer may be used in later proceedings, including a DUI jury trial.

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Police Officer Biases and Errors

It is not uncommon for law enforcement officers to make errors while conducting a DUI investigation.

Once you have been arrested the police officer must read you your Miranda Rights, prior to conducting a custodial interrogation, otherwise, any statements you may have made to the officer may be excluded. Depending upon the facts of the case, this may lead to a favorable disposition or even an outright dismissal.

Santa Barbara DUI investigators will often report that they observed the same physical symptoms in the majority of their DUI investigation police reports. Some of the most common reported observed symptoms are:

  1. Slurred Speech
  2. The odor of alcohol emanating from the person
  3. Red, bloodshot, water eyes
  4. An unsteady gait

Obviously, there may be other reasonable conclusions that may be drawn from these observations other than impairment due to alcohol or drugs. Furthermore, the officer’s credibility may be questioned since most Santa Barbara Police Reports contain identical language, even though the underlying facts may be substantially different.

Police officers often administer what are known as Field Sobriety Tests in order to ascertain impairment from drugs or alcohol. A brief sampling of Field Sobriety Tests is listed below:

  1. Walk and turn test
  2. One-leg stand
  3. Finger Count
  4. Finger to Nose
  5. Lack of smooth pursuit on a horizontal gaze nystagmus test.

It should be noted that these DUI “tests” are not truly pass/fail. Instead, they simply provide an opportunity for the officer to record his observations and make the inference of intoxication without taking into account the numerous explanations for a specific level of performance on a Field Sobriety Test. The subject may be injured, on uneven ground, severely fatigued, distracted by the passing cars on the side of the road, or subject to a number of other factors. A DUI defense attorney may have the opportunity to analyze the officer’s observations and seriously question his conclusions.

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Scrutinizing the Chemical Tests (Breath and Blood)

Title 17 of the California Code of Regulations mandates specific protocols for obtaining and handling DUI breath, blood, and urine samples.

Title 17 requires proper calibration and record keeping for all breathalyzers as well as proper administration of such tests. For example, subjects must be observed for a continuous period of 15 minutes prior to the taking of a breath sample. During this observation period, the subject should not eat, drink, burp, regurgitate, or vomit, as doing so could substantially alter the test result.

Title 17 also requires that all blood draws are conducted by a qualified technician and that blood samples must be void of any contaminants and stored in a specific manner with proper preservatives and anticoagulants. Blood (and urine) samples must be stored for one year so as to ensure that the DUI defense lawyer may order a retest of the sample at an independent lab. A discrepant lab result from the independent lab or any Title 17 violation may seriously question the credibility of any chemical evidence, and may ultimately lead to lesser charges or even outright dismissal of your DUI case.

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Concurrence of the Elements

In order to convict someone of a DUI, the Santa Barbara District Attorney’s Office must not only prove that you were substantially impaired and that you were driving a vehicle, but also that you were intoxicated at the time of driving.

The prosecutor must prove that you were actually driving the vehicle at the time you were sufficiently intoxicated. This is an important point in cases where law enforcement relies heavily on inferences as opposed to actual observed driving. In these cases, police officers attempt to rely on a warm engine hood, third-party statements, and other circumstantial evidence, however, these cases can be very difficult to prove. Unobserved driving cases are often strong candidates for a DUI jury trial.

Another important issue revolves around the rate at which alcohol saturates into the blood stream and the rate at which it is expelled. As a general rule, one standard drink (glass of wine, beer, one shot, etc.) equates to .02% BAC. Similarly, the average person burns off .02% BAC per hour. For example, an average person who has consumed 5 drinks over the course of 1 hour, may be right at .08% BAC.

EX: .02 + .02 + .02 + .02 + .02 = .10, however, we subtract .02 for the passage of 1 hour of time for metabolizing and arrive at .08.

However, alcohol saturates into bloodstream at specific rate, meaning there is a point in time when your blood alcohol content (BAC) is still rising before it begins to decline.

EX: If you slam 5 shots of tequila immediately before driving and you are stopped right away, it is safe to assume that your BAC will be substantially higher when tested at the police station then it was while actually driving.

The above phenomenon is known as the rising curve defense, and can be very effective when a blood or breath sample is taken a substantial period of time after the arrest and reveals a result anywhere near .08% BAC. At this point, a DUI defense lawyer may employ the assistance of a forensic toxicologist to opine at to a probable BAC at the actual time of driving, rather than merely when law enforcement administered the breath or blood test.

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Lesser Charges

Often times the goal of a Santa Barbara DUI Defense Lawyer is to identify weaknesses in the prosecutor’s case in an attempt to encourage a favorable plea bargain. One of the most common resolutions in borderline cases is negotiating the dismissal of CVC 23152(a) and CVC 23152(b) in favor of a plea to CVC 23103.5, which is known as a “wet reckless.” While a wet reckless is still priorable, meaning a subsequent DUI would be considered a second offense; there are still advantages to this disposition. A plea to a wet reckless allows the defendant to keep a DUI off his or her record, while also incurring lesser fines, a shorter DUI class, and possibly avoiding driver’s license suspension (subject to the DMV hearing).

An even more favorable resolution would be a plea to CVC 23103, which is known as a “dry reckless.” The primary advantage of a dry reckless is that this offense is not priorable, and therefore, a subsequent DUI conviction would only be considered a first offense.

Finally, next to a dismissal, the most favorable resolution would be a plea to a California Vehicle Code Violation as an infraction. “Speeding” would be an example of such an infraction.

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DUI Appeals

A DUI conviction can have lasting negative consequences and therefore it may be prudent to retain a DUI appellate lawyer to review your case in its entirety and attempt to overturn the conviction. On appeal, no new evidence is introduced. Instead, the court of appeal focuses on legal arguments in the context of the facts already presented at the trial court.

The first step of a DUI appeal involves reviewing all evidence and documentation in your case, including transcripts from any hearings and the jury trial, if applicable. After meticulous review of the record, a DUI appeals lawyer will then speak with the DUI trial attorney to flesh out the facts further. After the DUI appellate lawyer has a clear picture of the facts and procedural posture, he then conducts legal research and searches for any legal issues that may be examined by the Court of Appeal. These issues are analyzed and argued in a document called, “Appellant’s Opening Brief” (AOB). After filing the AOB, the Attorney General’s Office, which advocates on behalf of the prosecution, addresses the AOB’s arguments in a “Respondent’s Brief.” Finally, the DUI appeals lawyer can then file a rebuttal to Respondent’s Brief, before deciding whether to request oral arguments in front of the appellate court. After considering all arguments, the appellate court renders a decision and can overturn the conviction, grant a new trial (or hearing), or simply uphold the conviction.

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DUI Expungement (Record Clearing)

An expungement is a process by which your case is retroactively dismissed.

A DUI conviction may restrict your employment opportunities or other privileges. Under California Penal Code Section 1203.4, you may expunge your DUI conviction as long as you have complied with all terms and conditions of probation and have no new or open criminal or DUI cases at the time you seek your expungement. If you need to have your record expunged prior to the completion of your probationary period, you may first seek an early termination of your probation, followed by a separate motion for expungement. In Santa Barbara, early termination of probation is generally granted if you have completed all terms and conditions of probation and if you can show the court a good-faith reason for your request (job application, security clearance, etc.).

If probation was not part of your DUI plea bargain or conviction, then you may still apply for expungement under California Penal Code Section 1203.4a. In the event that you were convicted of a felony DUI, you should first make a motion to reduce your felony to a misdemeanor pursuant to California Penal Code Section 17b. Only then should you seek a DUI expungement. This ensures that your record will reflect the retroactive dismissal of a misdemeanor rather than a felony.

Generally, your early termination of probation, 17b motion, and expungement are handled by the same attorney at the same time. Feel free to contact our office to discuss your Santa Barbara expungement. We also handle expungements in San Luis Obispo, Ventura, and other California Counties.

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