the State Bar of California
the San Diego Union-Tribune
The Press-Enterprise


In most cases, if you are arrested for driving under the influence of alcohol, you will be charged by the prosecuting agency with not one, but two separate offenses under the California Vehicle Code. The first charge is typically filed as a violation of section 23152, subdivision (a) – driving under the influence of alcohol. The second charge is usually a violation of section 23152, subdivision (b) – driving under the influence of alcohol with a blood alcohol concentration of .08% or greater.

In order to be convicted of driving under the influence, the prosecution must prove that:

  1. you drove a motor vehicle; and
  2. you were under the influence of alcohol at the time you were driving.

To prove the 23152, subdivision (a) charge, prosecutors usually admit evidence in the form of testimony from the arresting officer specifically regarding the objective signs and symptoms they observed about you or your mannerisms which led them to believe that you were under the influence of alcohol. This typically includes very simple things like the officer articulating a “marginal pattern of driving on the road;” describing “red, watery or glassy eyes;” or noting that “the suspect was fumbling around in the vehicle and appeared disoriented as to time or place.” In nearly every one of these cases, the drunk driving investigation has been building against you long before you have ever said a word, much less had the opportunity to speak to a lawyer! That is why it is so important not to underestimate the complexity of these cases – and not to try to fight your case alone.

Once a law enforcement officer believes you may be under the influence of alcohol, he or she will likely ask that you get out of the vehicle and perform a series of activities commonly referred to as “field sobriety tests,” or FSTs. These tests are specifically designed, in theory, to test balance, coordination, and the ability to do two things at once, commonly called “divided attention.” There are over a dozen such field sobriety tests that have been used over the years, including, but not limited to, the one-leg-stand, the walk and turn test, the horizontal gaze nystagmus test (HGN), where you’re asked to follow a pen or fingertip from side-to-side with your eyes, the Rhomberg test (also called “modified position of attention), hand-pat, finger-to-nose, and various versions of alphabet recitation.

During the field sobriety tests, the law enforcement officer is typically confirming or denying their initial suspicions about whether you are under the influence of alcohol, based upon how they evaluate your performance on these tests. In many cases, the performance of the FSTs themselves are captured on video using either the police officer’s body-worn camera (BWC), or via a dashboard camera within the police vehicle, commonly referred to as mobile video audio recording system, or MVARS. If the officer believes that you performed these tests unsatisfactorily, that evidence can later be used against you in court to prove that you were impaired at the time of driving.

If this sounds like your situation, don’t panic! Law enforcement officers who administer these field sobriety tests must do so in accordance with some very stringent guidelines and in accordance with their training. If those policies and procedures were not properly adhered to for any reason whatsoever, that could be a factor in your favor, and there is even a slight chance that the evidence could be inadmissible altogether.

In fact, the National Highway Traffic Safety Administration (NHTSA) has conducted multiple studies to determine how effective these field sobriety tests are at correctly identifying impairment in drivers. It is significant to note that of the dozen or so field sobriety tests that were studied by NHTSA, only three were determined to be effective at identifying impairment – horizontal gaze nystagmus (HGN), the one-leg-stand, and the walk-and-turn. By default, this means that the other field sobriety tests were deemed to be unreliable in effectively identifying impairment. Although the general trend of law enforcement agencies nationwide seems to be geared toward adopting the Big Three “standardized” field sobriety tests, many officers continue to use whatever tests they prefer and feel most comfortable administering, despite the tests having been deemed unreliable. In such cases, those tests may be challenged in court and could strengthen the quality of any potential defenses available to you.

To prove the 23152, subdivision (b) charge, prosecutors typically admit evidence in the form of testimony from those individuals involved in the collection and analysis of the blood or breath sample you provided at the time the chemical test was administered. This may include, but is not limited to, the police officer who administered the Breathalyzer test, the nurse who collected your blood sample, and/or the scientist who analyzed your blood sample at the laboratory. In order to find you guilty of this section, the prosecutor must prove that your blood alcohol concentration was at .08% or greater at the time of driving. As such, the result of whatever chemical test you elected, is significant with respect to this charge, especially in cases where the value is at .08% or greater.

If you already know that the results of your chemical test showed a blood alcohol concentration of .08% or greater, do not immediately panic! This fact alone does not necessarily mean that your situation is hopeless! The laboratory scientists and criminalists who conduct toxicology screenings and perform scientific analysis on the samples involved in driving under the influence cases are also subject to strict standards and voluminous guidelines that must be adhered to. This ensures the quality and accuracy of their results. In some cases, cross-contamination can occur, the machine used to analyze the sample may not have been properly calibrated, or there may be other issues pertaining to your specific situation which could significantly impact the overall validity of the testing.

Driving under the influence cases typically involve a host of legal issues and some very technical and savvy arguments that quite frankly need to be identified and addressed sooner rather than later by an experienced Murrieta DUI lawyer. Many of these issues will be critical to the outcome of your case and many of them are extremely time sensitive as well. This is especially true when it comes to timely requesting an administrative hearing with the Department of Motor Vehicles immediately following any arrest for driving under the influence of alcohol. Unless you specifically request an administrative hearing within ten days of the date of your arrest for driving under the influence, the Department of Motor Vehicles will automatically suspend your driver’s license for a period of four months thirty days after arrest. This is true even in a first-time driving under the influence of alcohol situation and this administrative action is entirely separate and distinct from of any criminal penalties or court-imposed restrictions on your driving privilege! Additionally, if you are under the age of twenty-one and either refused to provide a chemical test or Preliminary Alcohol Screening (PAS) sample, or alternatively, if you did provide a chemical test or PAS sample that yielded a result of .01% blood alcohol concentration or greater, the Department of Motor Vehicles will automatically suspend your driving privilege for one year, even on a first-time offense.

Time is of the essence and you need to act now. At the Law Office of Julie Ann Baldwin, APC, we understand that being arrested and charged with a criminal offense can be a confusing, scary, embarrassing, and downright emotional experience for many people. We also believe that everyone is entitled to vigorous and compassionate legal representation and we consider the attorney-client relationship to be sacrosanct. Our firm works strategically to fully develop and understand the nuances of each case and prepare the best possible defense for you. We pledge to keep you regularly updated and fully informed during each and every stage of the legal process, so that you can focus your time and attention on the business of getting your life back on track and headed in a positive direction.

If you have already been charged or anticipate being charged with a DUI in the Murrieta area, contact your Murrieta DUI lawyer at the Law Office of Julie Ann Baldwin, APC for your free, confidential case consultation now. Your future and your freedom deserve to be taken seriously by an experienced attorney who is committed to quality representation and compassionate advocacy, every step of the way.

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