There are countless ways in which a DUI prosecution may be defended. Many have to do with the manner in which the investigating officer conducted the investigation. Examples of these include an officer’s failure to:
- actually observe “driving” by the client (the client was asleep in a parked car)
- administer the field sobriety tests properly (client told to do tests in her high heels on a sloped or uneven surface)
- “continually observe” the client for 15 minutes prior to administering chemical breath test (a Title 17 violation)
- use “blood kit” procedures or defect with blood vial (person taking blood sample is not properly licensed or the preservative inside vial is expired)
- sign or include required details in officer’s DUI investigation report
- properly advise the client regarding the chemical test (client not told license could be suspended for failure to provide breath/blood test)
While many of these errors or omissions mentioned above may only affect the “weight” of the evidence, other violations may actually attack the “admissibility” of the evidence, such as the lack of legal or probable cause to make the traffic stop or unlawful detention conducted upon the client. In these instances, the attorney will prepare and file a motion to suppress evidence (Penal Code section 1538.5) outlining why the police officer’s actions were in violation of the client’s 4th Amendment right against unreasonable search & seizures. If the motion is successful and granted by the court, then any evidence obtained during and after the stop or detention, will be ruled inadmissible. In most cases, such a ruling will make it difficult or impossible for the prosecutor to proceed with the case. If so, the attorney can request that the case be dismissed.
In cases where the prosecutor’s evidence strongly supports either or both of the commonly filed DUI charges (Vehicle Code sections 23152(a) & (b)), prudence may suggest working out a negotiated resolution. Where “plea bargaining” is a wise or appropriate option to pursue on behalf of a client, there are many strategies that an experienced attorney may formulate. For example:
- client has an excessive blood alcohol content; proactively, client should begin AA classes or enroll in a licensed, approved alcohol school program to prevent the likelihood that bail may be imposed at arraignment and to demonstrate the client’s awareness of the seriousness of the situation
- client is on probation with recent (prior) DUI convictions; perhaps the viability of entering a residential alcohol/drug treatment program can be evaluated to minimize or prevent any custody from being imposed upon the client (Penal Code section 2900.5)
- client is charged with DUI and of having minor children under the age of 14 in the car; given the natural concern for the child’s future welfare and safety, client should begin parenting classes with an appropriate counselling program and, attend the M.A.D.D class or Hospital & Morgue program
The point to be stressed in situations where “damage control” is needed, is that the client acts in a timely and effective manner, with proper advice and direction provided by the attorney. No matter how difficult or dire the factual circumstances of the case may be (excessive alcohol levels, priors, probation violations, or even DUI-related injuries), there is almost always something meaningful that can be achieved by taking early action, and before negotiations even begin with the prosecutor.