At the beginning of 2022, the law regarding DUI diversion changed. DUIs are no longer eligible for diversion in California. Please contact our office with any questions. Email us at OR Call us at: (415) 523-7878

We Are Open 24/7 And Offer Free In Person And Virtual Consultations.

Law Firm of Aaron Bortel

How Can I Help My DUI Defense Attorney After Entering A Plea Of Not Guilty In My Case?

When your attorney enters a not guilty plea for you at the first court appearance or arraignment, a new court date is chosen and that’s usually when the attorney gets the discovery. A good DUI lawyer is going to be investigating all aspects of the case and one of the ways we do that is to ask for more information. We don’t just read the complaint and the police report. A DUI case involves a lot of different things that may be important for the defense: blood testing, breath testing, video of the defendant driving, video of the field sobriety test, video of the defendant’s contact with the officer, video of the blood draw, and video of the admonishments.

There are a lot of things they don’t give us unless we ask for them. Part of the attorney’s role is to do the investigation and get these items. Once the attorney gets the initial discovery, the client needs to talk with the attorney about whatever they can remember from that night. The client is the only one who can respond to any allegations or claims the police are making in their initial report. We can compare and contrast the client’s recollection with the police report, especially for things that are not on video or audio. The only people who were there are the police officers and our client, so the client needs to be our eyes and ears for everything that we can’t see or hear.

Going over that information with the attorney is very helpful in many cases, so that would be the client’s main role in helping defend the case. Later on, there are other things clients can do to help with the negotiation stage, but right now we’re at the stage where we’re trying to see if we can win the case or at least get the charges reduced. If we can’t win the case, we may be able to get a better result if the client goes to AA meetings, counseling, or classes.

What Are Some Possible Defense Strategies That Can Be Used In DUI Cases In California?

Every case is different, so there are many different strategies. In a DUI case the prosecution has to prove two elements. One is that you were driving. Two is that you were at or above a 0.08 blood alcohol level or that you were not driving with the care and caution of a sober person. The prosecution has a number of different ways to prove that. They can get the alcohol level through breath testing or blood testing.

We can challenge both of these after checking the records for the testing devices, and in the case of the breath test we will check both the preliminary screening device and the evidentiary testing device. We’ll look at the calibration records, the station logs, the maintenance records, and the accuracy checks. We usually look at the records for three to six months before the test was given and for at least a month after it was given. We are looking for whether or not these machines have been taken out of service and whether they’ve been reading high or low. We will look at the calibration to see if there’s an issue with the accuracy of these machines. We want to know if there’s a reasonable doubt about the blood alcohol content at the time of driving.

Sometimes the officers do not properly administer the tests or properly admonish people as to what the requirements are in blowing into these machines. We’re looking for anything that can help us show that the prosecution cannot prove their case and we are looking for anything that could possibly create reasonable doubt in the mind of a juror.

We will also get the records on the machine used to test the blood as well as the records on the chain of custody – who drew the blood, who transported it and what evidence locker they transported it to, who mailed it to the lab, who received it at the lab, and then the chain of custody at the lab itself. If there are issues then we can bring those up to try and win the case.

We are also looking for any evidence of contamination that may have affected the blood – something that may have created micro bacteria and altered the alcohol level in the blood, invalidating the test or showing that there’s reasonable doubt that this is the true alcohol level of the person that was tested.

There are also other defenses we can use, such as questioning whether the person was even driving. It’s a lot easier in DUI cases when you don’t have to challenge the results of a chemical test. When the issue is whether the person was driving it’s going to be a lot harder for the prosecution to prove their case. This happens very often when the police approach a vehicle on the side of the road and there’s more than one person there.

If no one admits to driving or if it’s not clear who the driver was, the police will make a determination based on whose car it is, who has the keys, what is said to the officers, and so on. If one person is larger than the other they will often look at who the seat is adjusted for. They have to be able to prove beyond a reasonable doubt that that the person they’ve arrested for DUI was actually driving.

There are other issues that come up. For instance, the officers need to be able to show that the person was driving within three hours of taking the chemical test. That can be issue if there was any delay, and it can help the defense.

There are also a number of potential issues with the field sobriety testing. The standardized field sobriety tests were developed years ago so that officers would have a standardized test that would aid them in determining whether someone is at or over the legal limit of 0.08.

Those tests include the Horizontal Gaze Nystagmus test which is also called the HGN, the walk and turn, and the one leg stand. Before they even get started the officers are supposed to make sure that the person can actually do the tests. They’re supposed to ask about head injuries, back injuries, leg injuries, recent surgeries, or any other medical problems that might cause balance issues.

They are not supposed to give these balancing tests to anyone who has a medical issue that would prevent them from properly completing the test. If they give it to an elderly person or someone who is extremely overweight, they cannot be expected to have the same coordination as someone who does not have those issues. I have seen officers give these tests to people in their 70s and 80s and these people are at a complete disadvantage before it even starts. If the test was given to someone it should not have been given to, that can help us fight the DUI charge.

The first defense we usually look at in a DUI case is whether the police had probable cause to stop the defendant. Why did the officer pull them over? What was going on? Were they responding to a car parked on the side of the road? Did someone call 911?

In most of our DUI cases the officer will see someone driving in an erratic manner or speeding. Speeding is probably the number one reason why people get pulled over. When someone’s going 80, 90, or 100 miles an hour, they’re likely to get pulled over. That alone is enough for an officer to do a DUI investigation but other examples would include weaving within the lane for a prolonged period, going out of the lane, weaving in and out of cars, driving without your lights on, or slowing down and speeding up.

If they smell the odor of an alcoholic beverage after they’ve pulled you over, they can start a DUI investigation. They start by asking a lot of questions and then they do the field sobriety tests after that. Something that everyone needs to know is that field sobriety tests are not mandatory. You can always respectfully decline to do the field sobriety tests. Unless you are on probation you don’t even need to blow into their preliminary alcohol screening device. That’s the breath test they give you after the balancing test to make a final determination if you’re 0.08 or higher. They’re going to arrest you if you are. If you are arrested for DUI you do have to do a breath or blood test or you could lose your license for at least a year. However, you should respectfully decline to do the field sobriety tests – don’t give the officers more evidence to convict you for a DUI.

We file a motion to suppress evidence when it looks like the officers may not have had probable cause to pull you over and do a DUI investigation. What we are trying to do is get rid of every piece of evidence they have after they’ve pulled you over.

We might have a winnable suppression motion if the video doesn’t support what the officer is saying. For example, if an officer says that the defendant weaved outside of the lane, but the video shows that the client only touched the line once or twice, we can argue that this could have happened for a number of reasons and that it’s not enough to pull someone over. People touch the lines all the time without being intoxicated. Unfortunately, many judges don’t like to grant this type of motion, but other judges will give us a chance to show that there was insufficient probable cause.

If there was insufficient probable cause to pull the person over then all the over evidence should be suppressed no matter what it is, so the prosecution would have no evidence of alcohol and they would not be able to win their case against my client. Probable cause is one of our best weapons in trying to prevent a conviction in a DUI case.

With the legalization of marijuana, we expect to see more drug cases. We are already seeing more and more of those. When an officer thinks someone is under the influence of drugs they will often bring in a drug recognition expert. This is an officer who has had a certain number of hours of training in recognizing the signs of drug use, usually taught by other officers.

This is far from being an exact science, and in many cases, the results are highly questionable. They’re not required to show very much of an ability to determine the drug accurately during the training. I’ve been at conferences where we’ve had trained qualified drug recognition experts trying to figure out what drug someone is on and they don’t get it right even half the time. This is something that we can challenge in court because detecting drugs by observation is a very inexact science.

It is also very difficult to prove beyond a reasonable doubt that the person was under the influence of a drug and that it impaired their ability to drive with the care and caution of a sober person. The DRE or drug recognition expert should always be challenged. Unfortunately, most criminal defense attorneys have not been trained in how to show the problems with drug recognition testing. Many drug DUI cases end up with guilty pleas or convictions because the attorneys are not properly trained. What those attorneys should be doing is either not taking on these cases or getting a top DUI lawyer who is a member of an organization like the National College for DUI Defense. These organizations offer seminars and training in how to cross-examine these experts and win these cases.

You need to have the right type of lawyer to fight these cases. If you don’t, you might as well just go in there and defend yourself because the results are not going to be much different if the lawyer doesn’t know what they’re doing. Some lawyers plead people out at the first chance they get, and after the first or second court appearance the case is over. In some cases that might be the right thing to do but not in most. It’s important to have the best DUI lawyer that you can find.

If the case involves an accident, we might bring in an accident reconstruction expert to show that the accident did not occur in the way that that the prosecution claims it did. Those situations are typically seen when a case is going to trial and the experts are brought in to testify at trial. Unfortunately, those are usually cases where there’s been an injury or even a death and it’s critical to have an accurate reconstruction effort to show that there is reasonable doubt that this happened the way that the prosecution is claiming that it happened.

Most officers have body cameras and/or dash cameras in their police cruisers. Typically we have not seen cameras on police motorcycles but hopefully, they’ll get them one day. The video is something that can go either way. It can show that what happened is clearly what police officers are claiming in their report or it can show something that will help our defense. For instance, the video may show that the person did not do as poorly on the field sobriety tests as the officer said. It may show that the officer did not properly admonish the defendant.

This is very common in refusal cases where our client is facing a yearlong license suspension from the DMV. If we can show that the police did not properly admonish our client, the DMV may just put them on a restricted license instead of suspending their license completely. Of course, this depends on whether they have any prior DUIs, but obviously clients are very happy when they can win any part of their DUI case. That’s what this is all about – trying to save someone’s license and prevent a conviction on their record.

For more information on Entering A Not Guilty Plea In A DUI Case, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (415) 523-7878 today.

Share this Article

Aaron Bortel
With 30 years of specialized experience in DUI defense, Attorney Aaron Bortel is a dedicated advocate for those facing DUI charges in the Bay Area. Committed to helping clients avoid jail, save their driver’s licenses and jobs, and prevent permanent criminal records, he combines deep legal expertise with genuine care for his client's welfare. Trust in a lawyer who not only defends but truly supports you through challenging times.

Call Us 24/7 For a FREE Case Evaluation (415) 523-7878

Get Help Now
Translate »
Accessibility Accessibility
× Accessibility Menu CTRL+U