Per Se Law as an Element of a California DUI / DWI
The per se law operates in a way such that if it can be proven that a motorist’s blood alcohol content was .08 percent or greater at the time of driving then as a matter of law, it is illegal for that person to drive. The question of a person’s blood alcohol content level is not a question of whether a person was impaired. However, someone’s blood alcohol level can be used as circumstantial evidence that that person was too impaired to drive.
In defending a charge under the per se law, the focus will be on the accuracy of the blood alcohol test or the breath test. An experienced DUI / DWI attorney who has advanced knowledge and training in field sobriety testing will be able to present facts, theories, and technical reasons that can effectively cast doubt on the results of the sobriety tests and create a chance for their client to beat the charge.
Oftentimes, a prosecutor will try to argue that blood alcohol content levels that were measured in a test at the police station long after the motorist was driving is an indication that the motorist had that same blood alcohol content at the time he or she was driving. Well, science indicates that this is not certain to be the case.
Skilled DUI / DWI attorneys know that the absorbing and metabolizing of alcohol by the human body can vary and that oftentimes a person’s blood alcohol content can escalate long after that person has his or her last drink. That means that a person can have two shots of tequila and feel sober for some time afterwards until the alcohol can begin to take its impairing effects.
There are two tests that can be used by the authorities to determine the blood alcohol content of a motorist. These tests include a blood test and a breath test. The breath test is commonly given on the roadside and can be conducted at the police station too. Currently it isn’t practical to conduct blood tests on the side of the road, so the blood test is done exclusively at the police station or hospital.
Although all of these tests have great potential for error, the most fallible one of all is the roadside breath test (PAS test). These tests are typically given with handheld devices that are unable to distinguish between alcohol in the mouth and alcohol on the breath. This means that if you swished some brandy around your mouth and then spat it out, never swallowing any of it, the roadside breath test would indicate some blood alcohol content even though there really is none. This test is simply not accurate.
The breath testers at police stations also have their problems. One of the most common causes of error in the stations’ machines is that they are unable to adjust for the temperature of a person’s breath. A person’s mouth temperature can have the effect of greatly inflating a person’s blood alcohol content. Another problem is that the tester is calibrated for the ‘average’ person, but it is also widely known that people metabolize things at different speeds. There is no ‘average’ when it comes to processing alcohol. If you are not ‘average,’ whatever that may be, the test is inherently unfair to you. A skilled DUI / DWI attorney can make a solid case out of these problems.
Blood tests carry their own set of problems too. These problems range from contaminated equipment to lab mix ups. It is not too uncommon for labs to get different people’s blood samples confused. Also, oftentimes labs take time to get samples tested, which also increases the chances for errors.
While prosecutors might not want the public to know it, there are several effective ways to challenge evidence in a per se drunk driving case. The best way to fight a per se drunk driving case is to hire the best and most experienced lawyer skilled in DUI / DWI and drunk driving defense.