DUI Today

Driving under the influence of alcohol, also called DUI" or "drunk driving", is by far the most commonly encountered offense in the courts today. Yet it has always been one of the most difficult charges to defend, involving as it does more esoteric areas of science and law than most felonies, while affording increasingly fewer constitutional safeguards. The substantive, evidentiary, and procedural aspects of DUI litigation have grown immeasurably more complex, while at the same time the stakes for the person facing DUI charges have been raised. In fact, the entire DUI scene today has undergone a change in recent years that may accurately be described as revolutionary.

These radical changes are attributable to a heightened national awareness of the DUI problem. Spurred on by constant media attention and such lobbying groups as Mothers Against Drunk Driving (MADD), legislators across the country have stumbled over each other to provide prosecutors with tougher weapons. It falls upon the California DUI defense attorney, of course, to understand and counter these new weapons with weapons of his own.

The most noticeable element in the prosecution's new arsenal is the so-called DWI per se law. Since 1982, the vast majority of states have enacted statutes that created a new offense: driving while having an excessive blood-alcohol level (.08 percent). This crime, which is usually charged along with the traditional DUI offense, is completely unconcerned with whether the driver was intoxicated or not: the crime is a biological one. Thus the prosecutor's job is made considerably easier - and the DUI lawyer's more difficult.

New and more sophisticated analytical devices have been introduced to prove the accused's blood-alcohol content. Once considered "state-of-the-art", the Breathalyzer 900 and 900A are now looked on as the simplistic "Model Ts" of the breath testing scene. Infrared spectroscopic instruments have taken over the field, with such units as the Intoxilyzer 5000 offering three-band analysis, internal computerization, acetone detection, and radio frequency interference options. Most recently, Draeger has offered its new Alcotest 7110, combining fuel cell technology with an improved infrared wavelength. Blood and urine samples are analyzed less commonly with traditional methods and more frequently with headspace gas chromatography.

But as the methods of analysis become more complex, the possibilities for error grow - and the problem becomes more difficult for the California DUI lawyer to handle. The phenomenon has created difficulties across the full spectrum of chemical analysis. Thus, for example, the spread of infrared analysis requires the DUI attorney to become familiar with light-wave theory and such potential defects as nonspecific analysis and the effects of acetone and acetaldehyde. Similarly, the theory and fallacies of retrograde extrapolation must be understood if the California drunk driving lawyer expects to effectively attack any method of blood-alcohol analysis. The California DUI defense attorney must be able to expose the weaknesses of the computer programming in the newer breath machines, such as the "assumed" alveolar air ratio used in computing blood-alcohol levels. As these instruments become ever more sophisticated, they are also increasingly susceptible to false readings caused by radio frequency interference.

California DUI lawyers must become familiar with this phenomenon and with the admissions by the federal government and the manufacturers themselves as to its effects. Quite simply, the DUI lawyer who does not familiarize himself with recent developments in blood-alcohol analysis is lost.

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