Ventura DUI Attorneys

If you have been pulled over on suspicion of driving under the influence of alcohol, the law enforcement official conducting the stop is expected to follow certain procedures designed to protect your rights. In these cases, we can evaluate all of the evidence surrounding your traffic stop and arrest to build a strong defense.

In addition to severe criminal penalties like fines or jail time, accusations of drunk driving can have an immediate effect on your driving privileges. It is important to act quickly to ensure that you are doing everything you can to protect your rights.

In other words, by being arrested for DUI you are thought to have violated a State Law and all of the people of the State of California are the victims; and the  District Attorney represents all the victims.

In prosecuting a DUI case, the prosecutor has an obligation to prove certain elements of the crime:

  1. Did the arresting officer have reasonable cause to stop or contact you?
  2. Can the prosecutor prove beyond a reasonable doubt that you were the driver of a vehicle or that you had "functional control" of that vehicle with the present ability to drive?
  3. Did the officer conduct an appropriate investigation to come to the conclusion that you were impaired and therefore affect a lawful arrest?
  4. Were you impaired at the time of driving or, was your alcohol level at .08 or greater at the time of driving (.05 or greater for juveniles/.04 or greater for commercial drivers)?

 

Probable Cause

 

DUI Traffic Stops

In the vast majority of DUI cases, the defendant was observed driving and the officer witnesses some violation of the law which leads to an "enforcement stop." In some instances the officer is called to the scene of an automobile accident or some other incident which leads to the officer conducting a DUI investigation

By whichever means the officer initially contacts you, this is the first element of the case which must be carefully scrutinized. We will investigate and prepare a variety of attacks designed to disprove the legality of the initial contact between you and the police.

Some of the most common excuses used by police to affect an "enforcement stop" on drivers are:

  • Excessive Speed
  • Failure to stop for a red light
  • Following too closely
  • Weaving
  • Failure to use a turn signal
  • Failure to stop for a stop sign
  • Failure to yield to emergency vehicle
  • Pausing too long at a stop light
  • Driving too slowly
  • Throwing cigarette from car
  • No headlights at night
  • Erratic driving
  • Loud radio
  • Failure to yield to pedestrians

 

Officers will also utilize a variety of mechanical violations as a pretext to pull you over and launch a DUI investigation. Mechanical violations can include:

  • Any faulty lighting equipment
  • Tinted windows
  • Cracked windshield
  • Expired tags
  • Excessive noise
  • No license plates
  • Bald tires
  • Anything hanging from rearview mirror
  • Excessive smoke
  • No mud flaps

 

Essentially whether the stop is legitimate or not, this becomes the first step toward conducting a DUI investigation. Once the officer is standing at your window asking questions things can begin to turn bad very quickly. We have seen and heard every excuse in the book for a police officer to pull you over and are prepared to get to the truth.   The Best thing you can do at this time is to SAY NOTHING.  The next best thing is to call the Bromund Law Group, even as the officer is walking up to your window.

 

Auto Accidents

Many times a DUI arrest is the result of a police officer's response to the scene of an automobile accident. Although a police officer may never see you actually drive a car, California law permits certain "assumptions" to be made about the element of driving based on circumstantial evidence. Some of the issues that may be used to establish driving are:

  • Location of driver when police arrive
  • Statements of other witnesses
  • Possession of ignition key
  • Injuries sustained by driver
  • Statements made by the driver
  • Vehicle registered to the driver
  • Position of driver's seat
  • Physical evidence establishing driver

 

Automobile accidents that are not witnessed may provide several  issues such as who was actually driving and what was the driver's alcohol level at the time of driving? Here again, a complete investigation of the facts surrounding the accident are required for us to make your best defense.

We may examine the validity of the stop/contact by examining dash-cam video or video from other sources. Also, independent witnesses may help to establish if the officer's probable cause was valid.

 

Other Reasons for Contact

In some instances, police officers may stop or contact a person while involved in an entirely separate investigation. We have seen police officers arrest citizens for DUI who are asleep in their cars. Police will sometimes stop and arrest people leaving the scene of a domestic dispute or an argument with a neighbor. Sometimes police officers will stop citizens because a completely anonymous caller reports that the person may be a drunk driver.

Each of these issues present interesting questions and could potentially lead to a successful defense by attacking the accuracy and trustworthiness of the stop or contact.

 

Impairment Defenses

California law makes it acceptable for the prosecutors and judges to make certain assumptions about the "impairment" of a driver. If a person is legally stopped and if the police officer has evidence that he or she ingested alcohol or any other intoxicating substance; and if that driver performs poorly in Field Sobriety Tests, everyone will assume that the impairment is caused by that alcohol or other substance.

Essentially this means, if you fail a Field Sobriety Test or seem unsteady on your feet, it MUST be as a result of the alcohol you consumed or the drugs you took... Period!

Fortunately, this is not actually the case.  The Field Sobriety Tests are unfairly designed, unfairly administered and unfairly evaluated.  At the Bromund Law Group, we have had dozens of trials where we successfully render these points clear for juries and our clients have been acquitted on the false accusation of DUI.  Remember always that the best defense you can have for a DUI case is a rooted in the knowledge and experience of a skilled Bromund Law Group attorney.  Juries understand, after we have walked them through the truth, how flawed the evidence of impairment is and how important it is to judge each person as a person and not as an assumption.

We have discovered drivers who suffer with inner ear infections or other medical problems that cause vertigo or dizziness. There have been drivers who suffer with pre-existing medical problems with their feet, ankles, knees, or low back that make balance nearly impossible.  Most importantly, performing a field sobriety test for the first time ever (as most defendants do) is nearly impossible to do well, even when stone-cold-sober.  The tests are complicated and the criteria evaluated are hidden and not logically apparent from the perspective of the test-taker.

A quick analogy:  Imagine taking a pop quiz with pencil, paper and a test consisting of ten questions calling for short answers.  You are told to answer all the questions, even if you don't know the answers and make sure you fill in the space for your answer completely.  You do so, guessing on some questions and knowing the answers to others.  You are then told that the test was graded for your speed of answering each question and the quality of your penmanship in filling up the space available.  Answering more than one question incorrectly is an automatic failure of the entire test.  That is the reasoning an analysis employed in field sobriety tests and justified under the legal fiction of “Totality of the Circumstances”.

Weather or surface conditions also must be evaluated. We have seen cases where the police will stand on the side of the road in 45 degree weather, wearing warm jackets, all the while expecting the client to perform Field Sobriety Tests flawlessly while they are turning blue and shivering. Police will often expect a driver to perform road-side Field Sobriety Tests on uneven or sloped surfaces.

 

Breath Samples

The majority of DUI cases processed by the courts and DMV today are based upon breath analysis. There are several variables when trying to detect an accurate level of alcohol in a person's bloodstream that is determined by a breath sample. We are experts at reviewing the process followed by police officers when administering the breath test. There are government codes and regulations that control the calibration, maintenance, and performance of any breath testing device. The officer must be certified in the use of the device employed and there are certain regulations that must be followed in how the test is administered.

Additionally, breath machines are subject to corruption. Even a perfectly maintained and calibrated breath device can be corrupted if the driver burps, regurgitates, or vomits within a short period of time prior to testing. Certain medical conditions create false-positive readings. Certain medical or dental conditions can trap alcohol in the mouth thereby causing a driver to blow straight alcohol into the device.

Most problematic is the assumption, built into the machine, that the alcohol measured in your breath sample is representative of the alcohol in your bloodstream at the time of driving.  This assumption is ALWAYS false.  Here are just a few reasons why:

  • No one gives a breath sample while they are driving; instead it is taken somewhere between 30 minutes and 4 hours after driving
  • The ratio between your breath vapor's concentration of alcohol and your blood's concentration of alcohol is unknown by the machine and an arbitrary assumed partition ratio has been established by law that has no connection to you as an individual person (or any observed specific individual in the history of controlled testing) and, in fact, varies inside your own body from hour to hour and day to day
  • Alcohol in your body is ALWAYS either being added to your bloodstream (while drinking and absorbing) AND being removed from your bloodstream (by your liver and perspiration) and the machine assumes that the level of alcohol is completely stable and constant; the officer reinforces this assumption by refusing to test you a second time, even though they usually keep you in custody for hours after they arrest you.  
  • The machine assumes full absorption of alcohol into your bloodstream at the time of testing even though science has shown full absorption takes between 15 minutes and 3 hours (with no detectable 'average' or 'most common' time) and absolutely no effort being made to determine how long it has been since you last consumed an alcoholic beverage beyond asking you to speculate at the side of the road with the officer looming over you.  

 

Blood Samples

Thought to be the most accurate of all the chemical testing options, the direct testing of one's blood should still be an issue of intense scrutiny. Blood is an organic substance that begins to degrade the moment it leaves the human body. The more a blood sample degrades, the more difficult it becomes to accurately measure and weigh the amount of alcohol present in a sample.

In their zeal to convict and suspend the driver license of accused citizens, the prosecutors and DMV Hearing Officers in any case would love for everyone to assume that a blood test absolutely and unequivocally represents a person's true alcohol level. In many instances, this is not true.

 

In reviewing your case, the Bromund Law Group will consider the following:

  • Was the blood sample drawn within 3 hours of the termination of driving?
  • How much actual time passed between time of driving and time of testing?
  • Was the blood sample seized in a legally approved manner?
  • Was the blood technician or nurse properly certified to take a blood sample?
  • What type of solution was used to cleanse the arm before the needle was inserted?
  • Was the blood vial properly handled?
  • Was the blood sample properly refrigerated?
  • Is there a proper chain of custody of the sample?
  • What is the certification of the analyst who tests the sample?
  • Did the laboratory use proper methods in testing the sample?
  • Is there any evidence that the blood sample clotted?
  • Is there any evidence that the blood sample fermented?
  • Is there a proper amount of preservative/anti-coagulant in the sample?
  • Was the preservative/anti-coagulant properly mixed with the sample?
  • What is the alcohol level?
  • Is it appropriate to have the blood sample independently analyzed?
  • Is it appropriate to run a "typing" on the blood?
  • Is it appropriate to run a DNA test on the sample?

 

With years of experience in reviewing blood evidence and, backed by some of the best toxicology experts in the field, we will carefully review and investigate all issues regarding the blood sample.

In the end, the prosecution will rely upon the horrifyingly false 'Retrograde Analysis' to convict you.  Retrograde extrapolation is a scientific test that is used to estimate the level of alcohol concentration (or other substances) in the bloodstream at an earlier time. Basically, analysts will use a test result taken at a certain time, then apply formulas to the test result to determine the BAC at the time a driver was allegedly operating a vehicle.  Retrograde extrapolation, in and of itself, is a deceptively simple process of multiplication: the elimination rate of alcohol (beta slope) multiplied by the time period in question. Unfortunately, the simplicity stops with the definition, and expert testimony becomes necessary to explain the results of extrapolation, its limits, and the weight it should be given by the trier of fact.

The difficulties with extrapolation arise from the variability in the human response to alcohol (ethanol). This difficulty is exacerbated by the difficulties in measuring the effects of alcohol on the human body and of human enzymes on alcohol. Fortunately, while the effects on an individual may vary from one drinking episode to the next, and effects may vary in individuals, the values in a large population follow a normal distribution that is capable of being tested statistically. The normal distribution also allows for most variables to be controlled individually to determine their statistical significance.

Scientists apply scientific principles of toxicology, metabolism, physiology, pharmacology, and biology in assessing the validity of claims made in research papers. Advanced training or education in scientific research and statistical analysis also assists scientists in determining whether the conclusions of previous researchers are trustworthy. It is this specific combination of education, training, and experience that will undoubtedly assist the trier of fact in determining a defendant's blood alcohol level (actually blood alcohol concentration, abbreviated as BAC) at the time he or she was operating a vehicle.

The last half of the 20th Century saw substantial research into the concepts underlying alcohol absorption, metabolism, and elimination for medical, diagnostic treatment, and forensic purposes. This research has shown that many variables are not statistically significant, regardless of their impact on human response and ability to be measured. That these concepts are incorporated into the present state of the law is obvious given the Legislature's identification of certain blood alcohol levels as the basis of legal presumptions.

Two major factors are subject to expert interpretation with retrograde analysis in a drunk driving case: whether the defendant was still absorbing alcohol at the time of driving and which elimination rate to apply to a particular defendant. Evidence regarding either factor can come from the defendant, the defendant's statement(s) to police, police observations, other witnesses, and, if known, the defendant's history with alcohol. An expert witness can take this evidence and apply elimination rates favorable to the prosecution or defense, as the case may be, and advise counsel or testify to his or her assumptions, conclusions, and opinions. The expert can also explore the effects on BAC of alternative elimination rates. The discussion that follows sets forth the substantial and significant scientific research supporting the concepts underlying retrograde extrapolation.

 

Retrograde extrapolation requires two assumptions:

(1) The blood-alcohol level was declining; and

(2) The rate of elimination is known.

This second assumption further involves the  prosecution lab employee’s (aka expert’s) assumption that the “burn-off” rate was .015 percent per hour (sometimes the assumed rate is .02 percent).

How does the prosecution know that the blood-alcohol was eliminating (assuming he or she was eliminating rather than still absorbing) at that rate and not at .005 percent, .3 percent or some other possible scientific rate?!

Quite simply, the prosecution does not know. The prosecution laboratory employee merely assumes that the arrestee was eliminating and that he or she eliminated at the average rate. The problem is that everyone has a different metabolism, and even a given person will metabolize alcohol at different rates depending on many variables.

In one important study, researchers found a wide range of metabolism rates: some individuals can absorb alcohol and reach peak blood-alcohol levels ten times faster than others. (Kurt Dubowski, “Absorption, Distribution and Elimination of Alcohol: Highway Safety Aspects”, Journal on Studies of Alcohol (July 1985)).

As a result, scientists have concluded that the practice of estimating earlier BAC levels in DUI cases is highly inaccurate and should be discouraged.

From the recognized expert in the field, Professor Dubowski of the University of Oklahoma:

It is unusual for enough reliable information to be available in a given case to permit a meaningful and fair value to be obtained by retrograde extrapolation. If attempted, it must be based on assumptions of uncertain validity, or the answer must be given in terms of a range of possible values so wide that it is rarely of any use. If retrograde extrapolation of a blood concentration is based on a breath analysis the difficulty is compounded.” 21(1) Journal of Forensic Sciences 9 (Jan. 1976).

“[T]he practice of making back estimation of a person’s BAC is inevitably a controversial issue in DUI litigation and should be avoided whenever possible.”

A.W. Jones & Barry K. Logan, Drug Abuse Handbook 1012. Reprinted in “Forensic Alcohol Supervisor Course” California Criminalistics Institute – California department of Justice Hosted by OC Crime Lab 2000

“Making back extrapolations of BAC is not recommended because of the wide variations in absorption, distribution, and elimination patterns of ethanol both within and between different individuals.” Id. at 347

Citing: Allanowai et. al. Ethanol Kinetics – Extent of Error in Back Extrapolation Procedures. 34 Br. J Clin Pharmacology 316 (1992); Lewis, Back Calculation of Blood Alcohol Concentrations 295 Br. Med J 800 (1987)

“This raises the issue of retrograde extrapolation and there are well-known problems and pitfalls associated with this practice.”

Jones, Status of Alcohol Absorption Among Drinking Drivers, 14 Journal of Analytical Toxicology (1990)

“Retrograde Extrapolation – A Dubious Practice”

A.W. Jones, Medical Conditions and DWI/DUI Challenges, NACDL 9th Annual Seminar (2005)

Dr. Kurt Dubowski (Department of Medicine & Toxicology Laboratories University of Oklahoma)

“It is unusual for enough reliable information to be available in a given case to permit a meaningful and fair value to be obtained by retrograde extrapolation. If attempted, it must be based on assumptions of uncertain validity, or the answers must be given in terms of a range of possible values so wide that it is rarely of any use. If retrograde extrapolation of a blood alcohol concentration is based on a breath analysis the difficulty is compounded.”

Mason and Dubowski, Breath- Alcohol Analysis: Uses, Methods, and Some forensic Problems – Review and Opinion 21 J. Of Forensic Sciences 29.

Reprinted in “Forensic Alcohol Supervisor Course” California Criminalistics Institute – California Department of Justice Hosted by OC Crime Lab 1998

“Finally, no forensically valid forward or backward extrapolation of blood or breath alcohol concentrations is ordinarily possible in a given subject and occasion solely on the basis of time and individual analysis results”

Dubowski, Absorption, Distribution and Elimination of Alcohol: Highway Safety Aspects, 10 Journal of Studies on Alcohol 98, 106 (1985)

Reprinted in “Forensic Alcohol Supervisor Course” California Criminalistics Institute – California Department of Justice Hosted by OC Crime Lab 1998

“Extrapolation of a later alcohol test result to the time of the alleged offense is always of uncertain validity and therefore forensically unacceptable”

Dubowski, Absorption, Distribution and Elimination of Alcohol: Highway Safety Aspects, 10 Journal of Studies on Alcohol 98, 106 (1985)

Reprinted in “Forensic Alcohol Supervisor Course” California Criminalistics Institute – California Department of Justice Hosted by OC Crime Lab 1998

 

According to Dr. Dubowski, the existing information on blood alcohol and breath alcohol versus time curves, the following conclusions can be reached:

  1. Not all blood and breath alcohol curves follow the Widmark patterns nor is the elimination necessarily linear.
  2. Alcohol absorption is not always complete within 60 to 90 minutes, as often claimed.
  3. The peak alcohol concentration cannot be validly predicted or established in an individual instance without frequent and timely measurements of alcohol concentrations.
  4. It is not possible to establish whether an individual is in the absorption or elimination phase, or to establish the mean overall rate of alcohol elimination from the blood or breath, from the results of two consecutive blood or breath alcohol measurements, however timed.
  5. Significantly large short-term fluctuations occur in some subjects and result in marked positive and negative departures from the alcohol concentration trend line.
  6. Short-term, marked oscillation of the blood or breath alcohol concentration can occur at various points of the curve, resulting in repeated excursions of the alcohol concentration above and below a given concentration (such as 80 or 100 mg/dl) within a few minutes or for hours.
  7. No forensically valid forward or backward extrapolation of blood or breath alcohol concentrations is ordinarily possible in a given subject and occasion solely on the basis of time and individual analysis results.

 

Absorption, Distribution and Elimination of Alcohol: Highway Safety Aspects, Journal of Studies on Alcohol Supplement No. 10, July 1985, Dr. Kurt M. Dubowski, Department of Medicine, and Toxicology Laboratories, The University of Oklahoma Health Sciences Center, Oklahoma City, Oklahoma 73190.

  1. DUBOWSKI found that elapsed time from end of alcohol intake to peak blood alcohol concentration varying from 14 to 138 (2hrs. 18 min) minutes, a nearly 10-fold variation.

 

Equations for blood alcohol concentrations require knowledge of many various factors (times of drinking, quantities of alcohol, food, weight, etc.). As such, numbers can be worked in the direction of the Prosecution or the Defense.   Our focus is on making clear to the jury how flawed this extrapolation is and how much the assumptions used are not valid in your case.

 

VENTURA COUNTY DUI DEFENSE

Other counties have room to negotiate a resolution on a DUI case for a lesser charge, like reckless driving.  Ventura County does not offer that path to resolution.  Here, you are either NOT GUILTY of a DUI or GUILTY of a DUI.  What that means is that your defense will only ever result in a dismissal of the charge, an acquittal on the charge, or a conviction of the charge.  Bromund Law Group lawyers know this and have had a decade of experience winning these cases.  There is no reason to hire a lawyer who promises you a reduced charge on a DUI case in Ventura County; that lawyer is speaking without knowledge of the policies of this county's District Attorney.  Instead, you should insist on hiring a lawyer who knows how to fight and win these cases in court, before a jury.  Only then will you have a chance of seeing the case dismissed before trial or receiving victory in a jury trial.  The Bromund Law Group has that knowledge and strives for victory.