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Apr 30, 2022

Common Defenses for DUIs

Getting charged with driving under the influence is no joke. Along with potentially going to jail and being hit with fines, you could lose your ability to drive for a certain period of time.

These kinds of penalties could greatly disrupt your life, making it difficult for you to get to work, earn an income, run errands, and provide for your family and yourself. That’s why it’s critical to research common defenses for DUIs and find an Oakland criminal defense attorney to assist you during this challenging time.

Here’s some more information on DUIs in California, as well as defenses if you are charged with a DUI.

What Is a DUI?

DUI means driving under the influence of drugs or alcohol. Even if you are 21 years of age or older, you cannot drink a certain amount of alcohol and get behind the wheel. You also cannot take illegal or legal prescription drugs that are prescribed to you if it impairs your driving. And if you are a commercial driver, you need to be much more careful when it comes to drinking or drug use and driving.

In California, it’s illegal to drive with a Blood Alcohol Content (BAC) level of .08% or more if you are 21 years of age or older. If you’re a commercial driver, the BAC is .04%, and if you’re under 21, it’s .01%.

What to Do If You’re Arrested for a DUI

A police officer may pull you over if you’re speeding or swerving, or it otherwise looks like you could be driving while under the influence. You’ll need to find a safe spot to pull over and keep your hands on the wheel. Any sudden movements could escalate the situation because the officer may believe you are trying to hurt them.

When the police officer approaches your car, they will ask you for your name, driver’s license, car registration, and car insurance information. It’s important to be as polite as possible and comply with the officer.

However, if the officer asks you questions about how much you’ve been drinking or asks you to take a DUI test, you can refuse. You can simply say, “Sorry, officer, I cannot answer that” or “I cannot do that at this time, I’m sorry.” You should never lie, but you don’t have to incriminate yourself either. You have the right to remain silent and not to take a field sobriety or handheld breathalyzer test. Why? A test could be faulty or inaccurate and end up leading to your arrest.

If the officer decides to arrest you, then you’ll need to take a chemical DUI test at the police station to avoid further penalties. Even if your BAC levels are high, you can always defend yourself later on. It’s better to take a breath test instead of a blood test, because breath tests tend to be more inaccurate. It’s easier to contest the results of those tests.

Once you’ve been released from the police station, you need to write down everything you remember about your arrest, including whether or not the police told you you have the right to remain silent. You should also note the details that led up to your arrest, including how much you were drinking (if alcohol was involved), where you were stopped, and the officer’s behavior towards you.

It’s critical to then contact an Oakland criminal defense attorney, who will help you formulate defenses for your DUI. They may include the following.

Rising Blood Alcohol Levels

Even after you stop drinking, your BAC levels will continue to rise. This means that when you left the bar, your BAC may have been below the legal limit. But by the time you get pulled over, you are above the legal limit. Your BAC may reach its peak 30 minutes to two hours later. Your Oakland criminal defense attorney might be able to determine what your approximate BAC levels were before you got behind the wheel. Then, you will have a legitimate defense.

Faulty Breathalyzer Testing

Breathalyzers are notorious for not being accurate. They measure the particles of breath alcohol that are in your lungs and then show your BAC level, which is an indirect measurement.

Additionally, you could have higher BAC levels than usual because you’ve used mouth spray or mouthwash or you’ve taken cough syrup. Breathalyzers won’t differentiate between alcohol you drink and other types of substances.

If you have diabetes, you’re on a low carb, high protein diet, or you’ve been fasting, this can also lead to an inaccurate Breathalyzer reading.

Your Oakland criminal defense attorney may be able to point out that your breathalyzer test results are not accurate and cannot be relied upon for the criminal investigation.

Inaccurate Field Sobriety Test

The police officer may ask you to complete a field sobriety test, like balancing or walking in a straight line. If you are tired or have bad balance, you could easily fail one of these tests. They do not accurately measure whether or not you are impaired, and an Oakland criminal defense attorney will be quick to note this to a prosecutor or judge.

Inaccurate Chemical Test

Even if you took a chemical test at the police station, it could be inaccurate. Perhaps the person who administered the test was not qualified, and that led to faulty results.

Incorrect Officer Testimony

The prosecutor may be relying on an officer’s testimony as evidence that you were under the influence of drugs or alcohol. However, this is not objective information. For instance, the officer may say they believe you were drunk because you had bloodshot eyes or you were slurring your speech. But you might have just been tired when you got behind the wheel.

The officer could have said that you smelled like alcohol, but you may have spilled alcohol on your clothing or only had a drink or two and not reached the legal BAC limits. They might have said that you were driving poorly, but you might have been swerving to avoid hitting a stopped car or an animal on the road. When you write down information about your arrest, it’s critical that you be as detailed as possible so that your Oakland criminal defense attorney can attempt to find a defense in your testimony.

Differing Witness Testimony

The police officer may say one thing, but if there were witnesses around, they might be saying something different. These witnesses could tell the truth about what was really happening and show how you were innocent. Just keep in mind that a passenger may not be allowed to serve as a witness, since they are likely biased.

Illegal Stop

The police officer may have illegally pulled you over for a suspected DUI. They cannot pull you over simply because you were coming out of a bar or driving late at night, for instance. They also can’t search your car or seize your belongings because they’re just guessing that you’re under the influence. If there was no just cause for the stop, then your Oakland criminal defense attorney will use this information to defend you.

No Miranda Warnings Given

The police officer needs to alert you that you have the right to remain silent if you’re in police custody. If they do not, and you say something incriminating, your statement likely can’t be used in court.

Penalties for a First-Time DUI in California

The first time you’re charged with a DUI in California, it’s a misdemeanor. You could be sent to jail for 48 hours to six months or go on probation. Many times, judges will order probation instead of jail times if this is your first offense. You may also need to pay a fine between $390 and $1,000, and there could be thousands of dollars in penalty assessments that you’ll have to cover.

Your license could also be suspended for six months for a first-time offense. If you had a BAC of .08% or more, the DMV is going to hit you with a four-month administrative suspension. If you refuse a BAC test, you could get an administrative suspension for one year.

Usually, the two suspensions will overlap, meaning you won’t have to complete one after another. You may also be able to request a restricted license to drive to your work or school, if necessary. Keep in mind that you will still need to install an ignition interlock device (IID) in your car to test your BAC before you drive.

If you’re given informal probation, it’ll typically be for three years, but it could last for up to five years. You’ll need to complete three months of DUI school, or 30 hours of classes, but if your BAC was .20% or higher, then you’ll need to complete nine months of school, or 60 hours of classes.

Penalties for Repeat DUIs in California

The penalties become more severe for repeat DUI offenses. A second DUI conviction is still considered a misdemeanor, punishable with 96 hours to one year in jail, $390 to $1,000 in fines, a two-year license suspension, and a 12-month administrative suspension for a BAC of .08% or higher. You’ll have to go on probation for three to five years and go through 18 or 30 months of DUI school.

For a third DUI offense, which is still a misdemeanor, the fines are $390 to $1,000, and jail time is 120 days to one year. There is a three-year license suspension and a 12-month administrative suspension for a BAC of .08% or higher. You’ll have to go on probation for three to five years and go through 30 months of DUI school.

If you’re charged with a felony DUI, like a DUI with an injury or fatality, the consequences are much worse. For a DUI with an injury, it could be a misdemeanor or felony, and time behind bars could range from 16 months to four years for a felony conviction. For a DUI with fatalities, you could serve one year in jail for a less serious offense or 15 years to life in state prison if you’re charged with second-degree murder. Other possible charges/convictions include negligent vehicular manslaughter while intoxicated and gross vehicular manslaughter while intoxicated.

By having an Oakland criminal defense attorney in your corner, you’ll have a better chance of getting your charges reduced – or perhaps even dropped altogether.

Hiring an Experienced Oakland Criminal Defense Attorney

To find an Oakland criminal defense attorney for your DUI charges, look for one who has several years of experience dealing with criminal cases and has excellent case results. Elliot Silver could be the perfect fit for you if you’re dealing with DUI charges and need assistance.

In one case, a prominent and successful nurse anesthetist was charged with a DUI. Along with the charges presented, they were faced with losing their professional license as well. Attorney Elliot Silver worked hard to protect his client, and he successfully obtained a total dismissal of the DUI. This spared the client from any criminal penalties as well as administrative consequences from the nursing board, ensuring they could keep practicing in their field.

In another case, an underage driver was charged with a DUI. This 18-year-old’s driving record and college plans were in jeopardy because of these charges. The young man reportedly blew a .02 BAC when he was pulled over and was worried about California’s strict zero-tolerance policy. Usually, it would include a one-year suspension of a license in addition to charges. By fighting for his client, attorney Silver got the charges dismissed, which reinstated his client’s driver’s license and ensured there wouldn’t be any stain on his record.

Elliot is prepared to help you as well to try and secure a favorable outcome for your case. If you’ve been charged with a DUI and are seeking representation, reach out to Oakland criminal defense attorney Elliot Silver today at (510) 995-0000 or by emailing him at He looks forward to hearing from you and helping you with your case.

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