Defending California DUI - CA Drunk Driving

On Tuesday, July 7, 2009, the California Senate Public Safety Committee debated whether to use California arrestees as guinnea pigs in a study testing whether or not the ignition interlock device helps stop future drunk driving in California. Thankfully, most on the Committee saw through the smoke screen in that this is a law just trying to make interlock manufacturers rich. If you want  to do that, put them in all cars and stop punishing people in the name of sol called public safety. The first part is about Guantanamo Bay and lasts only a few minutes.

On July 9, 2009, the California Supreme Court ruled that people accused of DUI or drunk driving have a right to challenge any breath tests on the issue of their variability due to a partition ratio different from 2100 to 1.

Where in a blood test, a scientist has the ability to calculate the exact amount of alcohol in the blood sample, a breath test result has to be converted by a 2100 to 1 partition ratio pursuant to the California statute. What this is supposed to mean is the amount of alcohol in 2,100 milliliters of breath is considered equivalent to the amount of alcohol in 1 milliliter of blood - but this is what varies widely.

Should a person have less than a 2100 to 1 partition ratio when taking the breath test, the breath test result comes out too high for the person's real blood alcohol level. Innocent people can be convicted of drunk driving if they don't know about this peculiarity of breath testing devices.

"Evidence casting doubt on the accuracy of the breath-to-blood conversion ratio is just as relevant as other evidence rebutting the presumption of intoxication from a breath test result, such as evidence that the defendant had a high tolerance for alcohol or performed well in field sobriety testing." Justice Carol A. Corrigan, California Supreme Court. 

People v. McNeal, S157565 (July 9, 2009)

Q: I was recently arrested for drunk driving. I refused to take the Breath test, and now I am concerned how this is going to play out when we go to trial. I went through the arraignment on my own and know that I need to hire an attorney. I've been trying to do this on my own, but I now now this isn't a traffic ticket. Can you tell me how I can be prepared for trial and how I should go about getting an attorney?


A: In the situation where you truly have not had too much to drink, a breath test can help you by showing that you are under the legal blood alcohol limit of .08. Or, it can be strong evidence against you if it shows you were driving under the influence. In that case, it is not always infallible, and there are ways to challenge its accuracy.

In California, you do not have the right to refuse the legal consent test without penalty. Your license will be suspended for one year on a first refusal. Still, if you refused it, your chances of being found not guilty may have increased since that is one additional bit of evidence that the prosecution will not have against you. The jury will not learn that you refused the breath test because that will cloud their determination of whether you we under the influence or not.


If you are charged for a first offense of driving a motor vehicle under the influence in California, you generally have two options: You can fight it all the way by going to trial, or you can admit to the charges and try to work out a plea bargain on the case. If you admit to the charges, you will be convicted of DUI with a refusal. With refusals, the Department of Motor Vehicles and the court will not allow a work license - you are suspended with no driving privileges.

If you decide to go to trial, you first go through what is called the discovery process where the prosecution must disclose every bit of evidence they intend to use against you at trial and let you know who will testify against you. You have a right to technically challenge the evidence if you think it was collected against you illegally or it is not lawful to use it against you.

You also have the right to have your case tried in front of either just a judge or a judge and jury. In order for you to be found guilty or not guilty, the jury must be unanimous in its decision . If they are divided, then a mistrial will be declared and the prosecution has the right to bring the charges against you again.

The trial begins with the selection of the jury. Both sides challenge potential jurors they believe will fail at being fair and impartial. Then, an opening statement can be given by both sides giving a broad overview of what to expect at trial. After that, the prosecution goes first and presents all its witnesses. The witnesses each give their story by being asked questions by the prosecution.

Then, the defense - either the defense attorney or a defendant representing himself or herself - can cross examine the witnesses by asking them defense oriented own questions. After the prosecution rests its case, the defendant's side can introduce its own witnesses. The accused can also testify, but has a constitutional right not to be forced to testify. Then the prosecutor can follow-up by cross-examining each defense witness. After that, there are closing arguments in which each side will summarize the facts and argue why the defendant's guilt was proven beyond a reasonable doubt or not.

A person charged with drunk driving crime in California must know it is a stressful process.