A DUI trial: chances of winning a DUI case in Los Angeles

June 1, 2013

DUI trial

In this article, DUI Defense Lawyer discusses A DUI trial. Click on the links below to go directly to your topic of interest.

Can a Judge Punish A Defendant For Taking His DUI Case To a Trial?

One of the incentives for defendants to accept a plea bargain offer is to avoid imposition of a harsher sentence.  Many defendants worry that a judge will penalize a defendant for going to trial.  California and Federal law specifically prohibits punishing defendants with harsher sentence when they insist on taking their case to trial.

Here are some opinions from case law on point:

  • People v. Morales (1967) 252 Cal. App.2d 537, 546 – trial court abused discretion in imposing more severe sentence because defendant availed himself of right to trial;
  • People v.Miller (1931) 112 Cal. App. 535, 539  – abuse of discretion in denying probation because defendant invoked right to jury trial];
  • To punish a person for exercising a constitutional right is “a due process violation of the most basic sort.” Bordenkircher v. Hayes (1978) 434 U.S. 357, 363; 
  • A court may not offer any inducement in return for a plea of guilty or nolo contendere. It may not treat a defendant more leniently because he foregoes his right to trial or more harshly because he exercises that right. People v. Superior Court (Felmann) (1976) 59 Cal. App.3d 270, 276; 

Clearly, the courts can not impose a harsher sentence on DUI defendants after convictions by trials than the punishment that DUI defendants would receive after convictions by plea bargains.  Despite the law on this subject, some courts, possibly because of personal feelings, ignore the case law and punish DUI defendants who go to trial with a more severe punishment. Outside of this illegal harsher sentence by some courts, there should not be any reason for a defendant to plea guilty. From defense point of view, unless a defendant gets the benefit of a reduced charge or the prosecutor agrees to strike an enhancements, there is no benefit for a defendant to accept a plea bargain offer.

DUI Trial: Scientific Argument

In a DUI trial, the prosecutor needs to prove that the defendant

  • drove the vehicle and
  • that at the time his or her blood alcohol level was at or above .08% by weight (CALCRIM 2111).

Alternatively, for a refusal DUI or for a violation of California Vehicle Code section 23152(a) the prosecutor needs to prove that the defendant

  • drove the vehicle and that
  • at the time of driving the defendant was under the influence of alcohol or drugs (or both) (CALCRIM 2110).

To do that, the prosecutor will typically call two witnesses, an arresting officer and a forensic toxicologist, to wit, a person who will testify that in his opinion, at the time of driving, the defendant’s blood alcohol level was above 0.08% and/or that defendant was under the influence of alcohol (or drugs).

In most Los Angeles DUI prosecutions, the chemical tests of defendant’s blood (by breath test or blood test) are done much after the driving – allowing a skilled DUI defense attorney to argue that at the time of driving the defendant blood alcohol level was different that it was at the time of testing.

But, the prosecutor’ expert (forensic toxicologist) will use a “retrograde extrapolation” to estimate blood alcohol level at the time of driving opining that defendant was above the limit and under the influence.  “Retrograde Extrapolation” is a fancy term used by forensic toxicologists to calculate the blood alcohol level at the time of driving looking at the following 6 factors: (1) drinking pattern (2) sex of defendant (3) weight of defendant (4) time of driving (5) time of blood or breath test (6) Defendant’s blood alcohol concentration.

The forensic toxicologist will likely make two major assumption about the way body processes alcohol.  First, he or she will make the assumption that all alcohol is absorbed within 30 minutes of consumption.  Second, he or she will make the assumption that alcohol eliminates with a rate of .015 percent per hour.

Those assumption allow the toxicologist to calculate blood alcohol level at the time of driving.  For example, if the driving was at 1 am and the breath or blood test was done at 2 am with a blood alcohol level of .12, then the expert will opine that at the time of driving, the driver was either .10 if he was still absorbing alcohol or .13 if he was eliminating alcohol.  Clearly, very damaging testimony – that can sway the jury to vote guilty and to secure a quick conviction.

It is however very questionable that the assumptions used by the government’s experts are accurate. Specifically, the assumption that all alcohol absorbs within 30 minutes of consumption is inaccurate and the assumption that the rate of alcohol elimination is 0.015 per hour.  There are scientific articles with published studies showing that absorption can be longer then 30 minutes.  This argument is very important because, the longer the absorption period the stronger the defense can make an argument that the driver’s alcohol level was lower and below the legal limit at the time of driving.   For example, if the absorption period is 2 hours, then a driver whose blood alcohol level is 0.13 percent of alcohol in blood one hour after the driving and who had a drink very close to time of driving, would likely be below .08 percent blood alcohol concentration at the time of driving.

How does one present evidence to jury that absorption can be longer then 30 minutes?  By having defense forensic toxicologist testify or by impeaching the people’s expert with proper scientific research.  Impeachment is a term to describe a legal evidentiary process when the witness is confronted with contradictions.  Proper evidentiary impeachment is best done by litigators and to establish such cross-examination you would need help of an experienced Los Angeles DUI attorney.  We can help you if you call us right away.

By the way, here are tidbits from one possible source of impeachment, ” Goldfrank’s Toxicologic Emergencies” a 2,000 page treatise used to teach medical school and pharmacy school students (9th edition)

“80% to 90-% of ingested dose is fully absorbed within 60 minutes”… However, “… presence of food, … GI disease, co-ingestion of drugs such as aspirin, time taken to ingest the drink, and individual variation” … “can delay absorption for 2 to 6 hours”.

Using this language, a people’s expert can be confronted and convinced to concede that his testimony is inaccurate or biased – but you can’t do it without an attorney.

Further, many experts acknowledge that “ethanol tolerant patients may not exhibit impairment even at serum ethanol concentration greater than 300 mg/dL”  (same source).  Certainly important factor for refusal DUI prosecutions that often rely on impairments to deduce a certain blood alcohol level.

Expert Witnesses at a DUI trial in Los Angeles

As discussed above, a typical Los Angeles DUI trial involves at least two witnesses from the government – the arresting officer, and a toxicologist, who is an expert in forensic science.  Often, the prosecutor will call the arresting officer to testify first.  During his testimony, he will be expected to testify about his observation that led to the DUI arrest – including the smell of alcohol, the driving pattern, other objective signs of intoxication, such as an unsteady walk or swaying etc. Once the officer completes his testimony, the prosecutor will call an expert witness who will testify about the science behind intoxication and hypothetical scenarios that will resemble your performance on the field sobriety tests.  He will be asked to opine what was your blood alcohol level at the time of driving (basically “extrapolating” alcohol level backward to the time of driving).  He also will be asked to opine if such level of alcohol in blood will make operation of a vehicle unsafe.  He will typically be asked if he reviewed the evidence and if based on the evidence he is of an opinion that you were intoxicated at the time of driving?  Usually, the government will expect the expert to testify that you and anyone with this level of alcohol in his blood and with this performance on field sobriety test is impaired.  On the basis of that opinion, the government will attempt to obtain a DUI conviction against you.

As a defendant in a criminal trial, you have the right to present a defense.  Often, the best course of action is not to present any defense and instead, focus on showing to the jury that the government simply did not meet its burden of proof.  Because presumption of innocence and burden of proof favor the defendant,  many cases can be won by not presenting any defense and instead by poking holes in People’s case.  For example, officer’s poor memory, officer not following the procedure, lying or making mistakes in the police report can be pointed out as slovenly police work.  Alternatively, good performance of filed sobriety test, following traffic laws and instruction, lack of strong odor of alcohol – all can be used to show that you were not intoxicated.

Similarly, highly skilled Los Angeles drunk driving attorneys from our office can undermine credibility of government’s expert (often a toxicologist) with research that refute his opinion about intoxication.  For example, researchers such as Michale Hlastala in 2005 showed that field sobriety tests are not reliable predictors of intoxication at low levels of blood alcohol levels (such as .08% or .09%).  Doctor Dominick Labianca showed flaws in breath alcohol tests – substantially overestimating level of alcohol present in defendant’s breath.  Research by G. Simpson shows that absorption can take up to 6 hours (as oppose to what government expert testifies to be usually 30 minutes).

Using work of researchers such as Hlastla, Labianca, Rose, Simpson skilled Los Angeles DUI attorneys can discredit prosecutor’s witnesses and win your DUI case.

Can a DUI Case be dismissed when the courts are congested with other cases?

Yes it can. For example, there are precedents, such as Arreola v. Municipal court, where over 30 misdemeanor cases were dismissed because the courts were too congested to hear them. A defendant has a right to have a speedy trial within 45 days of arraignment, if defendant is out of custody. Failure to do so is a violation of the US Constitution, California Constitution and California Penal Code Section 1382. The remedy for failure to bring your DUI case to trial during the statutory speedy trial period is dismissal unless good cause for the delay is shown by the state.

The courts will often side with the prosecution and decide that the state has met its burden of good cause. As discussed in Arreola, “chronic court congestion and overcrowding is not a good cause”. An exception to this rule is a “court backlogs caused by exceptional circumstances”. In Arreola, the People argued that “unprecedented demand for trial” is an “exceptional circumstance”. The court disagreed, so this argument will not work again, however, the court hinted that (1) unusual increase in criminal filing and (2) sharp and unexpected decrease in available judges, would be factors to consider “exceptional circumstances”. The court also discussed other grounds that can or can not be used as a grounds to continue beyond 1382 time limits.

Los Angeles DUI Attorney

We are happy to take your  cases to DUI trial and win them for you or your loved one.  Call us now to talk directly to a trial attorney (818) 921-7744.




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