Possible Defenses for a California DUI, DUID

May 26, 2019 by Seppi Esfandi in California  DUI  
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Below we will discuss a few popular defense strategies for winning a California DUI case (California DUI Types, VC 23152). Please bear in mind that every DUI case is unique regarding the circumstances, and should be discussed in detail with an experienced DUI defense attorney.

Were You Actually Driving a Motor Vehicle?

One of the first things that must be proven in a DUI case is that the defendant was in fact driving a motor vehicle. Sometimes it may not be easily proven. For instance, if you are parked in a parking lot and drunk, sitting in the driver’s seat of your car. Technically, you are not driving if the vehicle is not in motion.

Section 2241 of the California Criminal Code defines what it means to drive:

“A person drives a vehicle when he or she intentionally causes it to move by exercising actual physical control over it. The person must cause the vehicle to move, but the movement may be slight.”

Basically, you are “driving” the car if you cause the car to move or steer the car in any direction, regardless of whether or not the engine is on.

On the contrary, here are some examples of not driving the car:

  • You sat in the driver’s seat, and the car never moved
  • You started the car but never moved it
  • The car moved, but was not under your control

Were You Actually Intoxicated?

In some instances, you may be mistaken as being under the influence of alcohol or drugs, when in fact you were not. Police officers are trained to look for signs of being under the influence of drugs or alcohol. These signs include driving patterns, appearance, smell, and personal behavior. They can use these as probable cause to investigate, but it does not mean you are guilty in the least bit.

Physical Appearance, Smell and Behavior

Your appearance, smell and behavior play a big role in your California DUI investigation. The police officer who arrested you for DUI will likely testify that you were “under the influence” because you had one or more of the following (based on a list on their report):

  • red, watery eyes
  • slurred speech
  • flushed face
  • strong odor of alcohol on your breath
  • an “unsteady gait”

There are numerous reasons why you may display any of the above appearances, including allergies, disability, sickness, injury, medication, lack of coordination, etc. Judging from these attributes alone are not solid evidence and can be challenged.

Inaccurate Testing

In addition to not drinking or taking recreational drugs at all, it should be noted that there is nothing illegal about an adult driving with a BAC of 0.06 or 0.07%. There are 5 types of tests that may be performed to determine whether you were too intoxicated to drive:

  • Field Sobriety (inaccurate)
  • Drug Recognition Evaluator (inaccurate)
  • Portable Breathalyzer (inaccurate)
  • Standard Breathalyzer (somewhat inaccurate)
  • Urine Test (more accurate)
  • Blood Test (most accurate)

It’s advised to refuse the Field Sobriety Test due to its terribly inaccurate method of detecting levels of intoxication. Likewise, the Drug Recognition Evaluator will also check for many superficial signals, which may be present as a result of numerous other reasons outlined above. The Portable Breathalyzer is a device that you may be asked to breathe into at the scene and has a set of strict rules that the officer must follow in order for it to be used as legal evidence in court. Portable Breathalyzers are not required under California law. A Standard Breathalyzer test is required by law if you are arrested under suspicion of Driving Under the Influence. However, this test is given at the station at a different time than the time you were actually accused of “driving” a car.

Even the most accurate test (the blood test) can be inaccurate up to 25% depending on the type of test. It is only available at a much later time in the police station when you are not actually driving a vehicle.

Mouth Alcohol

Breathalyzers are a terrible way to measure intoxication levels and can be inaccurate by up to 25% or more. “Mouth alcohol” is a factor that can easily throw off a breathalyzer test. It happens when a small amount of alcohol remains in the mouth or throat, contaminating your breath as you blow into the breathalyzer device. It gives a falsely high BAC (blood alcohol concentration) reading and can send innocent people to jail.

Here are just a few things that can easily throw off a breathalyzer device’s measurements:

  • Mouthwash
  • Burping
  • Breath spray
  • Medicine
  • Dental Work

Rising Blood Alcohol Content

If you are 21 and older, the law defines DUI as driving with a BAC of 0.08% or more. Normally, police assess your BAC by using either a breath test, or a blood test (or both).

But what if while you were waiting for the test, your BAC rose higher? Had you not been stopped, would you have been home shortly? This time difference can be crucial in some instances. It could mean that even though you tested over 0.08%, you were below the limit while you were driving. Remember, there is nothing illegal about an adult driving with a BAC of 0.06 or 0.07%.

Field Sobriety Tests

Law enforcement officials sometimes use field sobriety tests as a way to identify people who may be intoxicated. The problem is, however, that many of these “standardized” field sobriety assessments, including tests of a person’s ability to recite the alphabet backwards, stand on one leg, or touch one’s nose, have been shown to be wholly unreliable. Many potential factors can lead to people performing poorly on field sobriety tests, including:

  • Overweight, or physical ailment
  • Poor footing, weather conditions
  • Restrictive clothing, or footwear
  • Poor coordination

A multitude of additional factors can hurt a person’s performance in field sobriety tests. Given that these assessments are so unreliable as indicators of intoxication, it may be possible to discredit evidence collected during their administration.

Was the Arrest Procedure Legal?

Improper Stop

One of the most common arguments used by criminal defense attorneys in DUI cases, involves the claim that the officer lacked probable cause to make the initial traffic stop. You can fight DUI charges by arguing that you were driving erratically for another reason, other than being intoxicated. It is important to note that this defense will only work for specific instances and can be tricky if not assessed properly.

Challenging the Checkpoint

Police cannot pull you over without reason. Rather, law enforcement must have “reasonable suspicion” that criminal activity has occurred. If this standard is met, an officer has the right to briefly detain you to complete a limited investigation. In the case of suspected DUI, this may include administering field sobriety tests and other attempts to determine whether there is probable cause to make an arrest.

Most DUI charges are the direct result of common legal infractions like:

  • Traveling above the posted speed limit
  • Weaving in and out of lanes of traffic
  • Following another motorist too closely
  • Driving with a burned out headlight or turn signal
  • Using the shoulder of a road as a lane
  • Failing to observe a traffic light
  • Making a wrong turn
  • Driving very slowly or idling alongside the road

There are many additional legitimate reasons for police officers to make traffic stops, of course. What is critical to remember is that an officer must articulate a clear, reasonable cause for making a traffic stop in order for it to be legal. This reason must also be included in the incident report for an arrest.

If the stop that resulted in a driving under the influence arrest was not legal, the evidence collected during the course of the DUI investigation is not admissible in court. With all of the evidence thrown out, the state cannot make an effective case against you, and charges are likely to be dismissed by the court.

Miranda Rights

Were you properly Mirandized during your arrest?

Discrimination Or Other Misconduct

It is illegal for law enforcement to single out a person based on race, disability, sexual orientation, social class, etc for an arrest, including DUI. Despite a police officer’s claims of fairness, unfortunately, profiling behaviors occur everyday in police departments all over California.

People who believe they have been arrested on the basis of discrimination may have opportunity to avoid the harsh potential punishments associated with driving under the influence of alcohol or another drug. For instance, demonstrating in a court that a stop was race-based opens up the possibility the question a police officer’s motives in all aspects of a case. The report may be exaggerated, inaccurate, or unfairly written indicating a bias by the arresting officer.


Although the majority of DUI cases end without going to trial and therefore no witnesses will be required, it’s important to note that in serious DUI trial cases, witnesses can be an invaluable tool in your defense.

Favorable Witness

Witnesses that can counter the police officer’s version of the story are very powerful. For example, if a witness can testify that you were not drinking alcohol prior to driving a vehicle. Each case varies greatly, so consulting a DUI lawyer immediately is always your best option.

Expert Witness

A second type of witness is the expert witness. Depending on their field of expertise, an expert witness can give their specific opinion with regards to the scientific, medical, and environmental facts and factors that surround your case – with the aim of weakening the prosecution’s case.

An example of an expert witness is a forensic toxicology expert. A toxicology expert can give their opinion regarding the clinical pharmacology of the case – the interpretation of the science behind your case. They can elaborate on how the level of alcohol can affect the human body, i.e. whether or not your senses were impaired. They can comment and possibly criticize the way in which your alcohol level was determined.

Other Possibilities


Sometimes, in rare instances, it may be necessary to drive intoxicated for the ‘greater good’, or to avoid something worse. An example would be if you needed to escape someone that was trying to inflict harm or possibly kill you, and you feared for your life. Albeit these situations are rare, it should be considered if applicable.

Involuntary Intoxication

Sometimes, you might have been drugged or ingested alcohol without even knowing it. For instance, spiked punch, jello shots, or slipped a “roofie”. These situations are somewhat rare but certainly do happen. A strong defense can be built around such an event, if needed.

Conclusion for Possible Defenses for a California DUI or DUID

We’ve covered the basic, most common aspects of DUI defense strategies, but certainly, there are infinitely more, depending on the circumstances of each unique case. Building a strong case to defend a DUI charge is not easy, and most certainly one should retain an experienced DUI attorney in order to fight your case.

Beating Driving Under the Influence charges requires intensive knowledge of criminal laws, and vehicle codes, and access to critical investigative resources for presenting arguments before legal officials. A lawyer will understand right away the best strategic plan, based on the specific circumstances of your DUI arrest.

There is no reason not to take every possible measure to avoid a conviction for driving under the influence of alcohol or another drug.

If you have recently been arrested, please don’t hesitate to call us for a free, no-obligation consultation with Seppi Esfandi. During your call, Mr. Esfandi will hear the details of the case and advise you on the best approach to defend yourself.

Call Us for a FREE Case Review: 310-274-6529

Seppi Esfandi is an Expert in Criminal Law who has over 21 years of practice defending a variety of criminal cases.

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How to Win Your Case

We cannot stress enough that you read, understand and follow these 10 basic rules if you are criminally charged or under investigation:

  1. Don’t ever talk to the police
  2. Do not discuss your case with anyone
  3. Everything you tell your lawyer is confidential
  4. Tell police you need to contact your attorney
  5. Never consent to any search by the police
  6. If the police knock on your door, don't answer!
  7. Realize the consequences of a criminal conviction
  8. Your lawyer (not you) will contact any witnesses
  9. Information on your cell phone is evidence
  10. Early Intervention is the key

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