ABSORPTION RATE: Absorption is the passage of alcohol into the bloodstream. Alcohol is absorbed from the stomach and small intestine. The rate of absorption is affected by many factors, including: how long it takes the stomach to empty; the alcohol concentration of the beverage; the person's individual biology; and whether or not the beverage was consumed with food. Prosecutors frequently don't understand the science regarding absorption rates.
ADMINISTRATIVE PER SE HEARING: When a driver is arrested for DUI, he or she normally has two cases — a court case, and a DMV case. The hearing at the DMV, in which we fight to save your driver's license from suspension, is called your "administrative per se hearing." This is because the main issue at the hearing is whether the DMV can prove that you were driving with a blood alcohol concentration of .08% or above pursuant to California Vehicle Code section 23152 (b) – the "per se" DUI law.
BAC: "BAC" stands for blood or breath alcohol concentration. If you are arrested for DUI, the officer will ask you to take a blood or breath test. A breath test is an indirect measurement of the amount of alcohol in your blood. These tests only measure the amount of alcohol in your blood AT THE TIME OF THE TEST, NOT AT THE TIME OF DRIVING. This is important for your DUI defense.
BURDEN OF PROOF: In a criminal case, the "burden of proof" is on the prosecution. The prosecution must prove that the defendant is guilty. The defendant doesn't have to prove innocence; his or her innocence is assumed. The prosecution must prove that the evidence satisfies every element of the definition of the crime "beyond a reasonable doubt."
CHAIN OF CUSTODY: Because evidence can be used in court to convict persons of crimes, it must be handled in a scrupulously careful manner to avoid later allegations of tampering or misconduct. "Chain of custody" refers to a paper trail, documenting chronologically the seizure, custody and control of evidence. If you submitted to a blood test, the government needs to be able to show that it knows where your blood sample was from the moment the phlebotomist drew your blood to the moment the government analyst tested the blood at the crime lab in Watsonville. Any breaks in the chain of custody call into question the strength of the government's case against you.
DRIVING: California law defines driving as any volitional movement of a car. So, if the prosecution can prove the engine was running and that the defendant moved the car even one inch, that is enough to establish that the defendant was driving.
DRY RECKLESS: A dry reckless is a non-alcohol, non-drug related reckless driving charge. It is NOT a DUI. The penalties are much less severe than DUI penalties. And, this offense is not priorable; in other words, if you pick up a DUI in the next ten years, a dry reckless does not count as a prior DUI for sentencing purposes.
ENHANCEMENT: A DUI "sentencing enhancement" is any factor that threatens greater punishment to the defendant. One such enhancement is having a blood alcohol level of 0.15% or above and refusing to provide a breath or blood sample for alcohol testing.
FIELD SOBRIETY TESTS: Field Sobriety Tests (FSTs) are "divided attention tests" that allegedly measure a person's ability to perform the type of mental and physical multi-tasking that is required to "operate an automobile." However, there is not a single scientific study that correlates FSTs with the ability to drive. Imperfect performance on FSTs can be caused by nervousness, fatigue, injuries to the back or legs or any number of other factors. In addition, police officers frequently administer the FSTs incorrectly, further undermining their validity.
IMPAIRMENT: Normally, the prosecutor will charge you with violation of both vehicle code 23152 (a) and (b). VC 23152(b) is driving with a blood alcohol level of 0.08% or higher. VC 23152 (a) is driving while impaired. Legally, a person can be impaired even with a blood alcohol level below 0.08%. If your level was below 0.08%, the prosecutor can still try to prove you were impaired by showing evidence of bad driving, poor performance on Field Sobriety Tests, or other signs of impairment like slurred speech.
MOTION TO SUPPRESS: A formal, written request to a judge for an order that certain evidence be excluded from consideration based on the Fourth Amendment to the U.S. Constitution. In criminal cases, the proposed basis for exclusion usually arises from the United States Constitution, the California Constitution, or a specific statute permitting the exclusion of certain types of evidence. If a motion to suppress evidence is successful, your case may be completely dismissed.
NEGLIGENT OPERATOR: A driver who accumulates too many points on his or her driving record may be considered a negligent operator and can have his or her license suspended by DMV. At the end of a suspension or revocation period, the driver will need to re-apply for a license to drive. However, if you receive a "Negligent Operator" notice from DMV, call our office right away. We can obtain a hearing for you and help you keep your license.
PAS OR PRELIMINARY ALCOHOL SCREENING: During a Preliminary Alcohol Screening (PAS) test, an officer at the scene of the incident uses an alcohol breath test kit or breathalyzer. The PAS tests are often considered part of an officer's field sobriety tests. They are used as a means of early intoxication detection before more reliable tests are possible. Due to the test's relative inaccuracy, officers generally request that a Preliminary Alcohol Screening test taken on the road be followed by a stationary breathing test, or blood test at the station upon arrest. The on-scene device should only be used as probable cause for an arrest. This issue must be argued in court by an experienced DUI attorney.
PRIOR CONVICTION: The maximum sentence for a DUI will be enhanced if the convicted driver has any prior convictions for driving-under-the-influence within the previous ten years. Minimum sentences, probation period, license suspension period and other penalties are also affected. A prior conviction for a "wet reckless" will count as a prior DUI for purposes of any subsequent conviction for DUI.
REFUSAL: Drivers arrested on suspicion of DUI are required to provide a sample of their blood or breath for testing for alcohol content. This is called the "Implied Consent" law. A driver found to have refused a test faces losing his or her license for at least one year.
WET RECKLESS: "Wet reckless" is the nickname for a charge of reckless driving involving alcohol; it is essentially a reduced penalty DUI. The penalties for a wet reckless are less severe than for a DUI, although both charges involve probation, fines, a drinking-driver's program, and two points on your driver's license record, and both are priorable.
ZERO TOLERANCE: Under the "zero tolerance" law, it is illegal to drive with a blood alcohol concentration (BAC) of .01% or higher if you are under 21 years of age. The penalties for violating the zero tolerance law include losing your license for a year.