HOW ALCOHOL ABSORPTION MAY AFFECT A DUI CASE

Ever look at the alcohol chart sent out in the mail by the DMV regarding how many drinks over a period of hours a person may drink at a certain weight and be under the legal limit? Ever think, okay I can have five drinks over a four-hour period or one drink per hour and be okay to drive? Unfortunately, we’re not getting all the information and if one follows the general guidelines sent out by the DMV, a DUI arrest may ensue. (DMV Chart)

First, let’s look at the definition for a “drink”. If we look at the Merriam-Webster Dictionary the noun “drink”, is defined as “a liquid suitable for swallowing; alcoholic beverages; a draft or portion of liquid”. However, DUI alcohol experts who do calculations to correlate the number of “drinks” per a specific blood alcohol level define a “drink” as a twelve-ounce beer, a four-ounce glass of wine, or one-and-a-half ounces of hard spirits. Unless one is drinking beer from a can or a bottle, it is difficult to know the exact ounces of alcohol being ingested.

In addition, inconsistencies in alcohol content in these specific types of drinks are also problematic as you may have a five percent light beer while a heavier beer may have eight percent. Wines and hard liquors also vary in their alcohol content depending on the brand and type. (Alcohol Contents) All of these variables make it impracticable to rely on a specific number of drinks during a specific time period in trying to assure that one is legal to drive.

The other problem in determining if one is under a .08 (it is illegal to drive in California with a .08 percent or greater alcohol content in your blood) is the difficulty in determining what one’s blood alcohol concentration is at a specific time.

Alcohol absorption explains how alcohol travels through one’s body and over time goes from a zero blood alcohol concentration, up to the highest blood alcohol concentration and then back down to zero. Alcohol absorption may be categorized in three phases. As soon as one starts drinking, the alcohol level starts to rise. This is the ascending portion of the blood alcohol curve. During this phase the alcohol that is going into one’s body is greater than the alcohol that is being eliminated by the body through the liver. This phase goes on for as long as alcohol is ingested and for some time after the drinking stops. The amount of time that elapses between the time of the last drink and the end of the ascending portion of the curve (or the highest alcohol concentration) depends on factors such as whether or not there is food in the stomach and the pace of the drinking. For example, if there is rich food in the stomach and/or more alcohol ingested later in the evening at a faster pace than earlier, the time that the person reaches the peak alcohol level, after they stop ingesting alcohol, may take longer. However, if only a little food is in the stomach and/or the alcohol is drank at an even pace over a period of time, the peak will be reached quicker once the person stops ingesting alcohol.

The second phase of alcohol absorption is called the plateau or peak. This phase is reached some time after the person has stopped drinking and reaches their highest alcohol concentration. This is when the rate of absorption is equal to the rate of elimination. Expert opinions vary as to how long this phase lasts. Some say it ends in a matter of minutes while others say it may last for up to an hour.

The last phase of alcohol absorption is the descending or elimination phase. This is where there is very little absorption going on in the body and the body is eliminating the alcohol primarily through the liver. This phase goes on until all of the alcohol has been eliminated from the body. Most experts will say that alcohol eliminates at a rate of .015 to .02 percent per hour.

When determining if a person is below a .08 when driving there are a couple of issues that arise in a DUI case regarding the three phases of the blood alcohol curve (BAC). (Example of BAC) The most frequently used, is what is called the “rising defense”. This occurs when a person just finished drinking, and soon thereafter drives. Police stop the person, and then, some time later they are given a breath or blood test. In a case where the blood alcohol is close to the legal limit, the person at the time of driving could have been below a .08. Then, at the time tested, their blood alcohol level rises, because they were still on the ascending portion of the curve when they were driving, and the test results are at a .08 or greater. This is a “rising defense”, because the person is actually below a .08 at the time of driving, which is a defense in a DUI case (it is illegal to DRIVE with a .08 or greater - Vehicle Code), and then rises to a .08 or above, after the driving has stopped.

Another issue that arises is when someone drinks quite a lot of alcohol the night before and then gets up the next morning believing they are fine to drive. They are stopped by police, tested and are above the legal limit. Since alcohol eliminates from the body at .015 to .02 per hour, if someone goes to bed at 2:00 am and is at a .20. At 8:00 am that morning they could still be at a .11 alcohol level if they eliminate alcohol at a .015 rate per hour. In this case the person would have been a higher level at the time of the stop and then when eventually tested would have been at a lower level, because they are the elimination portion of the curve.

The science behind a DUI case is important to acknowledge and remember when deciding whether or not to drive. Unfortunately, even if tested before leaving friends or a restaurant does not solve the issue as blood alcohol levels fluctuate. Counting drinks is also imprecise, as the size and alcohol content will influence the true alcohol concentration of the person’s blood. The only real choice is not to drive, because one cannot guesstimate their blood alcohol level at a specific time and then determine that it is going down instead of up or that since they are ascending they will stay below a .08 blood alcohol concentration until they arrive at home. It is always a gamble to drink and drive, but if you are arrested on suspicion of DUI one definitely needs to seek counsel from someone who knows the science behind the law.

DUI Checkpoints Quiet In Orange County After The Super Bowl

Although none of the Orange County police agencies have released information that they are conducting a DUI checkpoint this Sunday evening, do not be lulled into thinking the few beers with some wings during the Super Bowl will go unnoticed. Not only will all the parties end and happy and sad bar patrons leave sometime after the big game, but there will be a multitude of police vehicles out on the street looking for those who are impaired or above the legal limit.

One thing to pay attention to as you enjoy the afternoon with family and friends while watching the Giants and Patriots fight for the title, is that a DUI may be charged under two vehicle code sections. One section is Vehicle Code section 23152(a) and the other is Vehicle Code section 23152(b). The (a) section is “driving under the influence” and the measurement of that standard is completely subjective. The smell of alcohol, the steadiness, the agility, the coordination and balance will all be measured by a police officer that has never met you to know how coordinated you are on any other day, and is determining whether or not his/her observations indicate impairment. The (b) section is the one measured by the actual blood alcohol level. A .08 or more percent of alcohol in one’s blood while driving is illegal. However, a couple of things to consider are that blood alcohol levels may go up quite rapidly, the device used to measure blood alcohol concentrations have a margin of error, the level is being measured at the time of the test not at the time of driving, and does anyone really understand or know what they feel like with a .08 percent level of alcohol in their blood in order to know when not to drive.

Regardless, if you are a Brady or Manning fan, are drinking IPAs or Lights, red or white wine, margaritas or mojitos, eating wings or legs, pizza or tacos, be aware that we will truly never know our blood alcohol level when we leave the game and the first thing to go with alcohol is judgment so be safe and don’t drive.

Since the 49er’s lost, I’m all about the food, the booze and a good game. Have fun and happy Super Bowl.

FULLERTON POLICE RECORDING RESULTS - MURDER CHARGES

But for the fact that Officer Ramos from the Fullerton Police Department had activated his digital audio recording (DAR), most likely he would never have been charged with murder by the Orange County District Attorney’s office. (CBS News Story)

On July 5, 2011, allegedly, Officer Manual Ramos beat a homeless man, Kelly Thomas, while Corporal Jay Cicinelli repeatedly tazed him. Mr. Thomas died five days later.

The investigation ended on September 21, 2011 with second-degree murder (potential 15 – life prison term) and involuntary murder charges being filed against Officer Ramos and involuntary murder and excessive force charges being filed against Corporal Cicinelli (potential 4 year prison term). These officers had been police officers for 10 and 12 years. (OC District Attorney Press Release)

However, what is most intriguing about this story from the perspective of past, present and future actions by police agencies and officers is the fact that technology is available to record every officer’s move, but either it is not implemented, or where available, it is not mandated.

Regarding the officers in this case, how many times in the ten and twelve years, have these officers not told the truth about their actions? How many times have they made an unlawful arrested? How many times have they lied from the witness stand in court? How many times has someone been wrongfully incarcerated? Now think about all the officers in all the agencies in Orange County, in California, in the Nation - How many times is a police officer’s “word” taken as the truth versus the “word” of an individual, because of the uniform and badge?

There are so many recording devices available to police agencies including those that record only audio, only video, and those that synchronize the video device that is usually attached to the patrol car’s rearview mirror and the audio device that is attached to their uniform. Although police agencies such as Newport Beach, Irvine and the Orange County Sheriff’s Department have these devices, other police agencies such as Huntington Beach do not. In addition, even the agencies that have these devices are not mandated to activate them when in contact with the public.

Although many police officers conduct themselves in a professional manner protecting and serving the public, it’s the percentage of officers who are harming the public either with lies or violence that calls for these recording devices to be mandated. It protects them, it protects us.

IS A VIOLATION OF CALIFORNIA VEHICLE CODE SECTION 14601, DRIVING WHEN DRIVER’S LICENSE IS SUSPENDED OR REVOKED JUST ANOTHER TRAFFIC TICKET?

Absolutely not. Most violations around the 14601 section of the California Vehicle Code are not infractions and the penalty is not simply a fine payment, traffic school and the possibility of one DMV point.

Driving when one’s driver’s license is suspended is a misdemeanor allegation, and consequences may include a jail sentence not to mention continual suspension of one’s driving privileges and a big fine.
Once the person arrives at Court for the Arraignment (10 Tips For Court) they will face various charges: some type of traffic or equipment violation in most cases (the reason the police stopped the car may be an area to explore for possible defenses) and then the specific Vehicle Code section for driving when driver’s license is suspended.

If the person did not pay a previous ticket, did not show up for court for a previous ticket or owes some type of fee to the DMV and therefore their driver’s license was suspended, the person will be charged with a violation of Vehicle Code section 14601.1. In most cases, if a plea of guilty of is entered they will receive a fine of about $2,000, 3 years of probation (Suge Knight receives probation for driving on a suspended license), and 2 points will be added to their DMV record. They will then have a misdemeanor record and if this person is charged with a similar offense in the future or has one in their past, a minimum of 5-days jail and a greater fine would be ordered.
The Court will not explain the DMV consequences, which are separate from the Court ramifications. If a guilty plea is entered, an abstract will be sent to the DMV and 2 points will be added to the driving record. If other points are on the record, although they may have been able to obtain their driver’s license by simply taking care of a previous traffic ticket or paying a fee to the DMV, now, their driver’s license will be suspended, because they are considered a negligent operator (CA DMV Negligent Operator Points) and (DMV Hearings ).
One other common driving with a suspended license charge is a violation of California Vehicle Code section 14601.2, suspension as a result of a DUI. The sentencing consequences are more severe with a minimum of 10-days jail for a first offense and 30-days jail for a second offense plus $2,000 in fines. Again, the result is 2 additional points on the driver’s DMV record (with the 2 points from the DUI this may cause a longer suspension period).

More Than One DUI? Help Is On the Way

If you have had one or more prior convictions for a DUI, or what is commonly referred to as a "wet reckless", you do not want to go to court and try to resolve the case yourself or hire just any attorney. A second DUI, third DUI, felony DUI, or what is referred to as a multiple DUI arrest, will affect your future, mobility and freedom. Regardless if you are charged with a misdemeanor DUI or felony DUI, you need an Orange County DUI attorney to obtain the most favorable results.

Why?

Here's a list of what an experienced Orange County DUI attorney can do for you:

• A DUI attorney knows the possible defenses along with the elements the prosecution must prove:
  - is the officer properly trained regarding field sobriety tests
  - were the field sobriety tests administered properly, to a proper candidate, in a proper environment
  - is the officer certified to use the breath testing equipment
  - was the breath device calibrated and maintained properly
  - was the blood sample drawn in the proper manner by the proper person
  - was the blood sample analyzed properly
  - was the vehicle legally stopped by the police
  - were correct procedures and admonitions used during the investigation and arrest


• An Orange County DUI attorney also knows the means in which to gather the necessary information:
  - the police report, in most instances, will not provide you with a defense
  - a dui attorney will know what items are needed, who has them, and what to request or subpoena in order to find a defense, if it exists
  - does the agency have a dash camera, such as the Newport Beach police, which keeps audio and visual recordings of the investigation
  - which agency/ies maintain the breath device
  - how are times and results confirmed and certifications obtained


• A DUI attorney knows the possible consequences from both the DMV and Court perspectives:
  - what occurs to the driver's license if the DMV is lost, but the Court is won and vice-a-versa
  - how long will the driver's license be suspended, revoked and/or restricted and what steps are needed to have full driving privileges restored
  - if the blood alcohol is this level, the prior is from this year and these circumstances exist, what is expected
  - the case is in this courthouse, where this Judge sits and these Deputy District Attorneys are present, what is expected
  - are there any alternatives to jail, what are they and how do I find out more about those possibilities

An experienced Orange County DUI attorney will not only defend you, but will give you the knowledge in which to make informed decisions about the case as a whole. The ultimate decision - to go to trial and fight the charge, or accept an offer. None of this will occur if you go into court without an attorney, or with one not experienced in DUI cases. You need a DUI attorney to obtain the best possible results for your individual case.

PROBATION VIOLATORS MAY RECEIVE SEVERE PENALTIES

You received a break on the misdemeanor or felony you pled to last year, but you’re still on probation; or maybe you didn’t receive a break, but at least you’re out of jail – be aware that violating your probation will make matters worse.

A probation violation occurs when the sentence the Judge gives is disobeyed during the probation’s time period (usually 3-5 years). So for instance, the Judge says that you must attend and complete a class, but you stop going to it. The class sends a letter to the Court, the Judge sees this, and issues a warrant for your arrest. Another example of this occurs when as part of your sentence and probation, the Judge tells you that you must obey all laws. However, you have a drug addiction and instead of getting the serious help you need, you are arrested for drugs; or you are incorrectly accused of another crime. The Judge sees that you have been arrested and have disobeyed the probation condition of obeying all laws and revokes your probation.

Once a probationer has violated probation, the Court where the sentence was issued will try and have the probationer appear in Court to face the violation by issuing a warrant for their arrest. If the person is on misdemeanor probation, the Court may send a letter to the probationer’s last known address, and depending on the availability of the Sheriff’s office, an officer may try and serve that warrant at the probationer’s work or home. If the probationer is in custody in the same county, such as Orange County, the probationer appears in the Court where the warrant was issued to face the violation. If the probationer is in custody in another county, such as Los Angeles or Riverside, or state, the probationer is transported to the court where the warrant was issued. If the person is on felony probation, after the Judge issues a warrant for their arrest on the probation violation, the probation officer will try to make the arrest.

Once the probationer is in Court, regardless if by appearing as a result of a letter or arrest, they are entitled to a hearing on the alleged probation violation. If the person is accused of not attending a class, paying a fine or giving a “dirty test” (testing positive for alcohol/drugs when they were ordered not to use those substances) and they are wrongly accused, they will want to have a hearing to establish their innocence. If the probationer has been arrested for a new charge, whether misdemeanor or felony, they will want to resolve the new case prior to resolving the probation violation. The resolution of the new case may also resolve the violation on their old case.

If the probationer wants to fight the allegation of a probation violation, they have the right to have an attorney represent them, they have the right to present evidence to defend themselves, and the Court must have the person who is accusing them of the violation testify. However, if the probationer knows that they violated their probation, because they failed to comply with the Court’s terms, it may be in their best interest to negotiate with the Court to be reinstated on probation with as light a sentence for the violation as possible.

The sentence for the violation of probation will depend on several factors: the number of times the probationer has been before the Court on a violation, the severity of the violation, and whether the person is on misdemeanor or felony probation. The person may be found to be not guilty of the violation, they may be reinstated on probation with very little consequences, or they may go to state prison for years. Regardless, an allegation of a probation violation is a serious matter.

Click here for more Probation Violation Information

Problems with DUI Breathalyzers

It's amazing how many times I have heard an "expert" testify that the breath device used in a DUI case is accurate, because it has so many safeguards that if it wasn’t working properly it wouldn't give a result. Obviously, that's not the case with the Alco-Sensor V used in Ventura County where hundreds of DUI convictions will be overturned and others will never have charges filed against them. Ventura County bought this device in January and since this time they have discovered that the Intoximeters’ breath device has been giving inaccurate readings.

Orange County law enforcement agencies also use one of Intoximeters’ breath devices, the Alco-Sensor XL IV, which is the same manufacturer as Ventura's Alco-Sensor V. The testimony I have repeatedly heard by the District Attorney's expert during DUI trials is that the amount of alcohol my client drank is inaccurate, because the machine is always right. The breath machine has the necessary "safeguards" such as the 15-minute observation period, the calibration and accuracy checks, the .00 reading prior to testing, the deep-lung blow, the two tests within a .02 of each other and on and on- "we have all these safeguards and we have two tests, the machine, not your client, is the one telling the truth". This is probably what they were testifying to the jurors in Ventura County until just recently when they discovered an issue with the mouthpiece of the DUI Breathalyzer.

So when you're sitting in that jury box and you're listening to the District Attorney's "expert" while they tell you that the breathalyzer is accurate by explaining all the “safeguards” and ultimately ending with “it gave two results”, please think again.

For more information on DUI visit: DUI Charges