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Driving Under The Influence (DUI)

The Best DUI Defense Attorney to call in Vista, Oceanside, Escondido, Carlsbad, Encinitas, San Diego and California

In California, if you are over 21 years old and arrested for a DUI, you normally will be charged with 23152(a) and (b) of the California Vehicle Code.   Also, upon arrest, the cop will take your California Driver's License, and issue a temporary license good for 30 days.  Buried in the fine print is a warning:


(Please see our other pages on Implied Consent and DMV hearings for more info on DUI license suspensions.)

So What are the Elements of a DUI?

 The (a) count prohibits Driving Under the influence of alcohol, drugs, or both alcohol and drugs.  No specific blood alcohol content need be proven for a conviction under this charge.

What does “Under the Influence” Mean?

A San Diego prosecutor does not need to prove you were “falling down drunk” to convict someone of a DUI.  The jury instructions (how the judge instructs a jury on the law) say:

 “A person is under the influence if, as a result of (drinking [or consuming] an alcoholic beverage/ [and/or] taking a drug), his or her mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances.

The manner in which a person drives is not enough by itself to establish whether the person is or is not under the influence of (an alcoholic beverage/ [or] a drug) [or under the combined influence of an alcoholic beverage and a drug]. However, it is a factor to be considered, in light of all the surrounding circumstances, in deciding whether the person was under the influence.”  (CalCrim 2110, 2019)

23152(b) of the Vehicle Code requires the DA prove, beyond a reasonable doubt, that:

  • A person Drove a motor vehicle; and
  • At the time the person drove, their BAC was 0.08 percent or more by weight.

Under this statute, the government does not need to prove impairment at all, only that at the time of driving your BAC was .08+ (if you are over 21 and not on probation for DUI).  However, a very effective defense to the (b) (.08+%) is to show that even if the chemical test revealed a BAC over .08%, the government is required to prove the BAC level at the time of driving.  Alcohol ingestion is a dynamic process, meaning your BAC level is constantly changing, from the time of the first drink, to circulation in your system, then elimination.  Absorption rates vary based on gender, body composition, weight, fat content, and various health considerations, but elimination is fairly constant, with most experts estimating elimination rates of .015-.025% per hour.  Both absorption and elimination occur in a human body after consumption of alcohol, and their rates can vary significantly, with a very important variable being the chronological drinking pattern.

Am I automatically guilty if I have a BAC of .08% or above?

As described above, your drinking pattern (time and amount of alcohol ingested) determines whether your are in an absorptive or elimination state.  If you are in an elimination state, you have already ingested your total amount of alcohol, and it has been fully-absorbed in your system.  This "peak" absorption means you will only be eliminating or removing the alcohol in your system. When someone tells a cop "I only had a couple beers, a couple hours ago" the cop, criminalist (the DA's expert paid by your tax dollars to help the DA convict you) and DA will be able to use this to show your BAC would have to be higher at the time of driving, because your BAC could only be coming down.  The reality of most social drinkers, and what I've seen in my 27 years as a San Diego DUI defense attorney, is that most people drink their last drink just before driving. A recent drink indicates an absorptive state, meaning your body is still processing alcohol, and your BAC will increase during this period.  Not only will a Breathylizer test read excessively (and incorrectly) high in this state, but it is also scientifically proven that your BAC will be significantly lower at the time of driving

I have used this argument, a Rising Blood Alcohol Defense, many times successfully in trial to show juries that my clients have been scientifically and factually innocent of DUI charges, and have earned Not Guilty Verdicts, avoiding fines, jail time, and license suspensions for clients.


  1. You weren't driving;
  2. The DUI Checkpoint was illegal/unconstitutional (Ingersoll v. Palmer criteria)
  3. The cop didn't have probable cause to pull you over initially (Motion to Suppress evidence after illegal stop, 1538.5 PC);
  4. You weren't impaired at the time of driving (Rising Blood Alcohol Defense) even if your BAC later tested at/above .08%;
  5. The breath test was not administered or calibrated properly (California Code of Regulation Title 17 violations);
  6. Officer was not properly trained to administer FST's (motion to suppress or inability to prove impairment);
  7. Chemical sample was not obtained within 3 hours of the time of driving (presumption per 23152b does not apply)
  8. Blood was not drawn in a medically approved manner;
  9. Blood was not drawn with non-alcohol swab;
  10. Blood did not have sufficient or correct preservative/anti-coagulent;
  11. Blood was not agitated to disperse chemical agents;
  12. Blood was not labelled properly;
  13. Blood was not refrigerated properly;
  14. Chain of custody not established;
  15. Blood test not performed properly; GCMS dual column headspace testing
  16. Delay in testing of blood;
  17. Blood fermentation; and
  18. Prosecution's expert does not qualify to lay foundation or analyze blood results.

There are many, many defenses to DUI available when you have an aggressive attorney protecting your rights.

California DUI trials can be very technical, and not as simple as most believe.  Because of state and federal funding, and political pressure from entities such as MADD, consequences of DUI convictions are getting increasingly harsh. 

In San Diego County, a first Offense DUI has the following mandatory minimum terms:

  • 3 or 5 Years of Informal probation, with standard terms and conditions: Violate no laws, do not drive without valid license and insurance, do not drive with a measureable amount of alcohol in your system, submit to FST's and chemical testing at the request of an officer, and notify the court of any change of address.
  • Fine: minimum of $2133 up to $3700 
  • Jail: Up to six (6) months in jail.  In many cases, on a first offense custody time may be converted to Public Work Service (PWS)
  • DUI School: 3/6/9 Month program (dependent on BAC % and SAAU referral, based on BAC on Change of Plea form)
  • MADD Impact Panel (1 time, 1 hour program, but failure to complete WILL result in a warrant issued for your arrest.
  • License suspension: six months, can be subject to immediate restriction; warning: DMV takes independent action per APS hearing

 A Second Offense DUI  (within 10 years of the violation resulting in a conviction) minimum terms:

  • 5 years informal probation, same terms as above;
  • Fine $2475 to $3700
  • Jail: Mandatory Minimum of 96 hours (4 days) to 1 year in custody
  • DUI school SB-38 18 mo. multiple conviction program
  • License suspension for 1 year (subject to immediate restriction if IID installation and no refusal, non-drug)
  • IID installation order for 1- 3 years
  • MADD Impact Panel

A Third DUI Conviction (within 10 years of two qualifying prior violations resulting in conviction):

  • 5 years informal probation
  • $2700 to $3700 fine
  • MANDATORY MINIMUM 120 days custody, up to a year in county jail
  • DUI School SB-38 18 or 30 month program
  • License revocation for 3 years and designation as Habitual Traffic Offender
  • MADD Impact panel

 A Fourth of Subsequent Conviction (within 10 years of three priors, non-felony priors)

  • Five years informal probation OR State Prison Commitment
  • Up to $3700 fine
  • Jail: Mandatory 180 day minimum, can be a felony, so up to 3 years state prison
  • DUI school SB-38 multiple conviction program
  • License revocation
  • IID install
  • MADD panel

Considering the significant cost, incarceration and programs required if convicted of a DUI, you owe it to yourself and your family to invest in an experienced, local DUI attorney like Joel Bailey to analyze, educate, advise and guide you through this tough time.  

Call Today for a free consultation (760) 643-4025


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