By November 3, 2016 August 31st, 2020 DUI Defense
  1. No Probable Cause for the Stop

The officer must have probable cause to stop, detain, or arrest you for DUI. If there was no probable cause the evidence, and the case may get dismissed.
The police must have a reasonable suspicion or reasonable belief that you are engaged in a criminal activity before they can stop your car, conduct a DUI investigation, or arrest you for a DUI in Sonoma County.
This reasonable belief is a standard known as probable cause. If an officer does not have the required probable cause before engaging in any one of these actions, any evidence that is obtained as a result of that illegal procedure will be suppressed.
When evidence is suppressed, it means that the prosecution cannot use it against you. This means that evidence obtained without probable cause usually results in reduced or dismissed DUI charges in Sonoma, Marin, Napa and Marin Counties.

  1. Faulty and Unreliable Breath Tests

The DUI breath tests used in Sonoma County and many of the North Bay Counties have many flaws. These tests are subject to some of the following problems:

  1. Improper use by the police
  2. Physiological Conditions (gastroesophageal reflux disease aka GERD)
  3. Instrument Malfunction
  4. Failure to observe the defendant prior to the test.

DUI breath testing is the most common way to measure a defendant’s BAC but it is not always very accurate because a DUI breath test does not directly measure the amount of alcohol in your blood.
It measures the amount of alcohol present in your breath and converts that amount to determine the amount of alcohol in your blood. As a result, DUI breath testing is susceptible to a variety of outside influences that can generate an erroneously high BAC reading.

  1. Mouth Alcohol

DUI breath testing instruments are designed to capture a sample of breath from your deep lung tissue; this is known as “alveolar air.” Residual alcohol can linger in the mouth for some of the following reasons:

  1. Dental work trapped small amounts of alcohol-soaked food in your teeth,
  2. You burped or regurgitated, or
  3. You suffer from acid reflux, heartburn, or GERD.

The breath test instrument captures “mouth alcohol” rather than simply “alveolar air.” As a result, mouth alcohol can trigger a false BAC reading on a Santa Rosa DUI breath test.

  1. Medical Conditions

Medical conditions such as Gastroesophageal Reflux Disease (more commonly referred to as “GERD”), acid reflux, or heartburn can contaminate DUI breath test results. GERD, acid reflux, and heartburn are all medical conditions causing higher BAC levels in the mouth only.
This is because these conditions produce a flow of acid that travels from the stomach into the mouth.  When this occurs during a DUI breath test or right before, the alcohol that travels from your stomach to your mouth disguises the deep lung air that the breath testing instrument is intended to measure.
As a result, GERD, acid reflux, and/or heartburn can cause a falsely high BAC on a Sonoma County DUI breath test and for that matter any DUI breath test.

  1. Diet

Conditions such as diabetes or An Atkins-style diet (which is low-carbohydrate, high-protein)  or hypoglycemia can trick a DUI breath test and result in a falsely high BAC.
Atkins-style diets and medical conditions such as diabetes and hypoglycemia are capable of self-producing isopropyl alcohol. This is because bodies that are deprived of carbohydrates turn to stored fat for energy. This process produces ketones.  Ketones, when eliminated from the body through breath and urine, convert into isopropyl alcohol. Many competitive bodybuilders experience this problem.
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This creates a problem with the commonly used breath tests because most Santa Rosa DUI breath testing instruments aren’t sophisticated enough to distinguish between this self-produced isopropyl alcohol and ethyl alcohol (the type of alcohol that we drink).  As a result, Atkins-style diets or diabetes or hypoglycemia can trick a DUI breath testing instrument into producing a falsely high BAC.

  1. “Rising Blood Alcohol”

Rising blood alcohol means that your BAC was a higher level when you took the test than it was when you were actually driving.
Alcohol takes a certain amount of time, typically between 50 minutes and three hours, to absorb into your system.  For example, if you had just recently finished drinking and were immediately detained for DUI your Blood/ alcohol may not have reached its peak absorption rate. When this is the case, your blood alcohol level is still rising, which can cause a false high DUI BAC result if the cops delay the tests.
Your BAC at the time of your blood or breath test is irrelevant because what is relevant is what your BAC was at the time of driving.  Just because you have a BAC that is above the legal limit when you submit to a DUI chemical test, does not mean that is what your BAC was at the time of driving. So we have to construct a strict chronological timeline to prove that you were under .08 at the time you drove.
Prosecutors assume that everyone is beyond their peak absorption phase when they submit to California DUI chemical testing. However, we know that this isn’t always the case and that rising blood alcohol is a very legitimate DUI defense. This rising blood alcohol defense applies to both DUI blood testing and DUI breath testing.

  1. California DUI Blood Testing Isn’t Always Accurate

There are multiple factors that could taint the results of your DUI blood test results:

  1. Blood fermentation,
  2. Blood contamination, and
  3. Improper storage of your blood sample.

These are just a few of the reasons why a blood tests result might not be accurate. Depending on the circumstances surrounding the collection and storage of your DUI blood test, your Santa Rosa or San Rafael DUI defense lawyer may be able to have your BAC results excluded from evidence.
If your BAC is suppressed, your charge under Vehicle Code 23152(b) driving with a BAC of at least 0.08% must be dismissed. WE OFTEN retest blood samples that are unusually high or we have reason are inaccurate.

  1. Violations of Title 17 of the California Code of Regulations

Title 17 of the California Code of Regulations sets forth the requirements for collecting, storing, and analyzing DUI chemical tests. These regulations are very specific, and any violation of California’s Title 17 can lead to the chemical test being thrown out.
Violations of Title 17 include the following:

  1. The technician who drew the blood was not property trained or certified;
  2. The DUI breath testing instrument that was used had not been properly calibrated
  3. The tester/ cop did not properly observe the arrested or detained party for the requisite amount of time stated in the regulations. 

If there was a Title 17 violation your BAC results could be excluded from evidence, or at the very least, its accuracy will be called into question.

  1. Field Sobriety Tests Are Not Accurate.

California field sobriety tests (“FSTs”) are not accurate indicators of impairment.
Even the most reliable California field sobriety tests aren’t accurate indicators of alcohol and/or drug impairment. The three tests that have actual data to support their trustworthiness are only between 65 – 77% accurate at detecting impairment and that is only if they are precisely administered and scored, which rarely occurs.WAYS TO BEAT A DUI CHARGE IN SONOMA COUNTY
Innocent explanations can also explain poor performance on FSTs. These include:

  1. officer-induced intimidation,
  2. poor lighting,
  3. bad weather conditions,
  4. uneven surface conditions,
  5. poor footwear, and
  6. un-athletic or uncoordinated driver or simply a driver with a disability

10. A BAC Over .08% Does Not Always Equal Driving Under the Influence
BAC is affected by many different factors, not simply the actual amount of alcohol in one’s body. These factors include, but not limited to:

  1. Errors in Sonoma County DUI chemical testing equipment,
  2. Errors in obtaining your DUI blood or breath sample,
  3. Your medical condition, and
  4. When you took your last drink.

Each of these factors can independently affect the accuracy of the BAC result, so don’t let the number fool you, a BAC over .08% doesn’t necessarily mean you are guilty of DUI.

  1. Your BAC Doesn’t Accurately Reflect Your Level of Impairment

If a significant discrepancy exists between your BAC and your alleged level of impairment, something is obviously wrong. This may be the case where you either (1) reportedly exhibited little to no impairment, or (2) exhibited even slight impairment, but your BAC was high by even as much as two or three times .08%.
A BAC Over .08% Does Not Always Equal Driving Under the Influence
When this type of situation occurs, which is sometimes referred to as a “disconnect” case, and your DUI BAC does not accurately reflect your alleged level of impairment, the evidence cannot be trusted.

  1. You Were Not Driving

The police must prove more than just that you were under the influence; they must also prove that you were the one driving.
For example, if you were involved in an accident and no one saw you driving the car, or if the police found you when you were in your parked car, it will be more difficult for the prosecution to prove that you drove. If the prosecutor can’t prove that you were driving, you can’t be convicted of a California DUI.  Caught intoxicated sleeping in a car is not necessarily the same as a DUI.  Call for more. 

  1. Radio Frequency Interference (RFI)

Radio frequency interference or”RFI” can cause a Sonoma County DUI chemical blood or breath test to produce an erroneously high BAC. This is because almost all electronic devices, including those used to analyze DUI blood and breath samples, are susceptible to RFI or EFI (electromagnetic interference).A BAC Over .08% Does Not Always Equal Driving Under the Influence
The potential sources of radio frequency interference (RFI) within the law enforcement environment are numerous. For example, AM and FM radios, police station dispatchers, hand-held police transmitters, teletypes, and police radar units. Each of these may emit the kind of interference that could cause specific DUI breath alcohol test devices to render false results.
The prosecution may counter this attack in a Santa Rosa DUI trial by pointing out that the machine has an RFI detector. The problem with these detectors is that they are simply unreliable. As repeated tests have demonstrated, there is a segment of the frequency band to which the detector is essentially blind. If there is a source of interference from a device emitting electromagnetic waves in this frequency range, it will not be detected.

  1. Even A Perfect BAC Test Has An Error Rate

There are inherent error rates with California DUI chemical testing.
Even assuming that all testing conditions are perfect, the testing equipment has been properly calibrated and maintained, and there aren’t any physiological conditions that could adversely affect the test, there is still an inherent error rate with California DUI chemical testing.
A BAC Over .08% Does Not Always Equal Driving Under the Influence
Experts agree that Santa Rosa DUI chemical testing has a +/- error rate of between 0.005-0.02%.  As a result, a Santa Rosa DUI defense attorney can challenge BAC results that are between 0.08-0.10%, because they could be lower than the minimum 0.08% required by Vehicle Code 23152(b)driving with a BAC of at least 0.08%.

  1. Police Misconduct

Even if you were driving under the influence, police misconduct may knock out your DUI charges.
A BAC Over .08% Does Not Always Equal Driving Under the Influence
If you can demonstrate police misconduct, then your DUI charges may have to be dismissed. This is true even if you were actually guilty of DUI. This is because proper police procedures must be followed.
For example,

  1. DUI police reports must be accurate,
  2. Title 17 procedures must be complied with, and
  3. Courtroom testimony must be truthful.

If these, or other, conditions are purposely manipulated or ignored, evidence that was illegally obtained or fabricated will be thrown out. Depending on how severely this impacts the prosecutor’s case, he or she may choose to reduce or dismiss your charges.  YOU OWE IT TO YOURSELF TO GET THE RIGHT ANSWERS—WHY FIGHT YOUR DUI ALONE!
Please contact Fiumara & Milligan Law, P.C. today at 707-571-8600 at our centrally located Santa Rosa Office or 415-492-4507 at our centrally located office in Marin County in San Rafael for your FREE case evaluation.  
Our Santa Rosa and San Rafael DUI Lawyers are standing by now ready to help defend your charges, keep you driving and out of jail.
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Our DUI law firm handles DUI related charges in Sonoma County, Marin County and the entire North Bay of California.
“The Right DUI Defense Law Firm Makes All The Difference”

Michael A. Fiumara

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