At the beginning of 2022, the law regarding DUI diversion changed. DUIs are no longer eligible for diversion in California. Please contact our office with any questions. Email us at OR Call us at: (415) 886-6333

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Law Offices of Aaron Bortel

In Marin County, CA and every other state in the country, people are innocent until proven guilty. To convict someone of DUI in Marin County, the district attorney must be able to prove to a jury of 12 that the elements of the DUI offense are present and that the defendant is guilty beyond a reasonable doubt.

The first element of a DUI offense is that the defendant was driving, and the second element is that the defendant was impaired, or at or over a blood alcohol concentration of 0.08 while driving. If the police or other witnesses saw the defendant driving, then that could be enough to prove the first element of the DUI offense. It is generally not very difficult to prove this element. Cases involving a dispute over whether the defendant was actually driving the vehicle are usually easier to defend, because doing so does not require only battling over the issue of impairment or the legal limit of 0.08.

The district attorney usually tries to prove impairment beyond a reasonable doubt through police officer observations of the person whom they eventually arrest. There can be evidence of the officer’s observations in the form of video footage, which might show the defendant’s inability to multi-task, maintain balance, speak without slurring words, or walk without looking tipsy.

From the time that the officer approaches a suspect’s vehicle or the scene of an accident, they will be making observations. They will determine whether they can detect the odor of an alcoholic beverage on the suspect’s breath, they will ask questions of the suspect, and they will request that the suspect consent to field sobriety tests. (which by the way, are not mandatory)

The most common field sobriety tests are the horizontal gaze nystagmus (HGN) test, the one-leg stand test, and the walk-and-turn test. Some officers will conduct the Romberg balancing test, which requires the subject to tilt their head back, close their eyes, and estimate when 30 seconds have passed. There are many tools that an officer can use to try and determine whether a person is impaired. However, what a police officer thinks is impairment may simply be someone is nervous, does not have good balance, have a head injury or have one of the hundreds of possible medical conditions.

DUI cases that involve an accident are tough to defend. This is because the district attorney will consider the accident itself as a potential sign of impaired driving. It comes down to the question of whether or not the defendant was driving the vehicle with the care and caution of a sober person. Sober people get into accidents all the time, but certain causes can indicate impairment more than others, such as swerving between lanes or failing to stop quickly enough. A number of factors in an accident can help show impairment, and it is not necessary for the district attorney to prove that the defendant was at or above 0.08 in order to show impairment.

Does the fact that an accident occurred make it easier for the district attorney to show a jury that the defendant was impaired? It can; this is certainly not a fact that often helps the defense. Furthermore, it is extremely rare for the district attorney to agree to dismiss or reduce charges in a DUI case that involves an accident. This is true regardless of whether an injury resulted from the accident, and regardless of whether the defendant was right at the legal limit. Even if it was a small bumper tap, the Marin County District Attorney’s policy is to not reduce charges nor dismiss charges for a defendant who caused or were involved in an accident.

California Vehicle Code Section 23152(a) covers impaired driving, and Section 23152(b) covers the per se charge, which basically says that an individual was at or over the legal limit when driving. There are many defenses to the per se charge, including machine error, improper use of the machine, failure to use proper procedure during a blood draw, faulty testing equipment, and missing links in the chain of custody of a blood sample.

There are many ways for us to show that the district attorney cannot prove the elements of the DUI offense, nor that the defendant is guilty beyond a reasonable doubt. Just because a person had a drink, caused an accident, and got arrested for DUI does not mean that they are necessarily going to be found guilty of DUI. They will, however, need to find the best possible attorney in Marin County who can defend their case in court, and defend their case with the department of motor vehicles.

For more information on DUI Defense In Marin County, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (415) 886-6333 today.

Aaron Bortel

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