Did You Know That “Sexting” Between Minors is a Felony?!

There is seemingly a fine line between a perverted adult who looks at naked photographs of minors and a high school student who has a naked photograph of his high school girlfriend or boyfriend. Yet, in many states, the law doesn’t take into account this fundamental difference. The difference is that in the first case, we have the real sex offender, someone who is clearly guilty of a heinous crime. However, in the second case, with regards to the teenager, the only thing he or she should be found guilty of is having raging hormones. Unfortunately, the law in the majority of states does not take into account this critical difference, as both the real sex offender and the hormonal teenager will be prosecuted for felony sex offenses.
The small town of Louisa County, Virginia, has recently gone through a major “sexting” scandal at the local high school where literally hundreds of boys and girls were being investigated for sending and receiving naked photographs of minors. Since 2009, state legislatures have attempted to help curb the confusion that “sexting” has created for law enforcement officers when it occurs between minors; there have been at least 20 states to have recently passed laws designed to establish a series of smaller penalties for first and second offenses among minors, rather than just charge a minor with a felony for a first offense. Unfortunately, Virginia was not one of the states to have adopted these more flexible laws as they relate to “sexting” among minors, so all the students that were being investigated in Louisa County were potentially going to be charged with felonies.
Luckily for the Virginia high school students, students, after a lengthy investigation, the officer residing over the “sexting” scandal, Major Donald Lowe stated, “We don’t want to put anything on your record, but the next time we come around, we’re not going to be so nice about it.” The students were lucky because Major Lowe put in such a great deal of time and effort into understanding what was really going on with the naked photographs being disseminated around the high school. Another officer might not have been able to put himself in the position of these high school students the way Major Lowe did. The fact is, this could have gone much worse. We very easily could have had 100 high school students charged with felony sex offenses that would have haunted them for the rest of their lives; this would have ruined the lives of a large group of high school students guilty of nothing more than sexual curiosity and raging hormones. Luckily, we don’t have that problem because Major Lowe made the right decision in simply giving the kids a warning.
It would be prudent for the legislation to adapt with the times and for all states to adopt more flexible laws as they relates to minors engaged in “sexting.”

To read more about the Louisa County “sexting” scandal and “sexting” in general, see http://www.theatlantic.com/magazine/archive/2014/11/why-kids-sext/380798/?single_page=true.

Another Arizona Immigration Law Rejected

In 2006, a whopping 80% of Arizona’s voters passed Proposition 100—a ballot measure denying illegal immigrants charged with certain crimes an opportunity for bail.

Although this law was intended to target illegal immigrants charged with serious felonies, the law allowed Arizona to deny bail for crimes most of us don’t consider very serious.  Examples include being held in jail until trial, with no chance of bail, for illegally copying a sound recording.

On Wednesday, a federal court threw out Arizona’s law as unconstitutional—rendering the law a failed experiment.  As such, hundreds of illegal immigrants held in jail may seek bail starting as early as November.

I don’t know about you, but I’m looking forward to reading comments from Arizona’s Governor Jan Brewer, a Proposition 100 supporter.

Although California does not have a similar law, California lawmakers have nevertheless found that Immigration and Customs Enforcement Agency holds (“ICE holds”) have been wrongfully used to detain suspected illegal immigrants (even those who have not been charged with a crime).  As a response, California passed Assembly Bill 4, which went into effect January 2014, and which limits ICE’s power by preventing ICE from detaining anyone who has not been charged with or convicted of certain crimes.

Here is a link to the full story:

http://www.latimes.com/nation/nationnow/la-na-nn-federal-appeals-panel-tosses-prop-100-20141015-story.html

Oops, Kanye did it again and this time in a deposition!

Apparently not even a civil case deriving from a criminal case where Kanye West pleaded “no contest” to misdemeanor battery for the alleged assault of a paparazzo can humble the “Yeezus” artist.  Despite being sentenced to two years probation, community service, and anger management courses, he still used his deposition in the civil case as an opportunity to make it known he’s better than just about everybody, including the attorneys deposing him and Britney Spears.

 

Some of the highlights, or low points rather, from West’s deposition are as follows:

• West swears under oath that “I’m the smartest celebrity you’ve ever f—— dealt with. I’m not Britney Spears”
• When asked where he was from, West responded “earth”
• When counsel for the paparazzo grilled West on his song “Flashing Lights,” quoting some of the song’s lyrics, West immediately remarked, “You have to ask for a hall pass. You can’t just say the ‘n’ word around me. It offends me because you’re a white person saying ‘n—-.'”
• West stated he sees the struggle of African Americans in the past the same as celebrities today, saying, “I equate it to discrimination. I equate it to inequalities … We, as group of minorities here in L.A., as celebrities have to ban together to influence guys like this — guys trying to take the picture, guys trying to get the big win, guys trying to get the check.”

(West’s team spirit of celebrities getting together to fight against these        guys must have temporarily gone missing when he decided to take a below the belt hit at fellow celebrity Britney Spears.)

• West then personally attacked the paparazzo’s attorney, exclaiming, “I’m in the business of trying to make dope s— for the world. You’re in the business of representing scums and trying to make as much money as long as there’s this lapse in the law.”

This certainly isn’t the first time a celebrity has made a mockery of their deposition being taken.  Justin Bieber fans, or “Beliebers”, may want to forget the attitude he brought to his deposition where he insulted deposing counsel, confused the word “instrumental” and claimed to be “detrimental” to his own career, and at one point even winked at the very camera videotaping him give testimony.  Rapper, Lil Wayne, also gave quite the performance at his deposition by preemptively stating “I don’t know” to unfinished questions, claiming to be psychic, and stating he was talking to himself when making passive-aggressive comments to the attorney questioning him.

 

Let’s hope this isn’t a celebrity trend that catches on.  Depositions are an important part of the discovery process in a lawsuit.  It consists of a deponent’s out-of-court oral testimony made under penalty of perjury.  Videotaped depositions and transcripts are often presented at trial.  Being overly hostile and condescending just makes a deponent run the risk of being disliked by jurors.  It’s better to come across forthright and down to “earth”.

 

Here’s a link to the full story:    http://www.businessinsider.com/kanye-wests-crazy-deposition-in-paparazzo-case-2014-8

Did Eight Men Rolling Around in a Mini-Van Just Drop Off Buckets Full of Coins at Your Attorney’s Office?

            After having reached a settlement agreement with a 73-year-old policyholder, Adrian’s Insurance Company delivered the settlement funds to the policyholder’s attorney’s office in scores of buckets full of nickels, dimes, and quarters. Talk about a sore loser.

            Although, there is no per se prohibition in paying settlement funds in coins, this is a type of behavior that most litigants do not engage in. It’s an unwritten law, if you will. I guess Adrian’s Insurance Company didn’t get the memo and in the process have generated bad publicity for their company. My guess is that their new slogan will be “nickel-and-diming customers since 2014.” 

            Although the policyholder’s attorney couldn’t have imagined this scenario in his wildest imaginations, he could have avoided this scenario all together by including a clause in the settlement agreement expressly requiring all funds to be paid via a check. As my law school contract professor used to say “The parties to a contact are masters of their contract.” During settlement negotiations, and prior to finalizing an agreement, the parties are free to bargain for the terms of the contact, which they will later be bound by.

            Since the story with Adrian’s Insurance Company went viral, some litigants may find it funny or entertaining to engage in the similar type of behavior.  In the abundance of caution, prior to finalizing any settlement agreement, litigants should make sure that there is a clause in the agreement requiring all settlement funds to be paid in by way of a check, to avoid such a scenario. Here is a joke in closing, what are the best coin jokes? The ones that make no Cents.  

 

Here is a link to the full story:

 http://www.nbcconnecticut.com/news/national-international/Insurance-Company-Delivers-Settlement-in-Buckets-of-Loose-Change-269896301.html?_osource=SocialFlowFB_CTBrand

Is Your Wife Threatening To Sell Your Beloved Basketball Team For $2 Billion (Donald Sterling)? We Didn’t Think So: How To Avoid/Resolve COMMON Trust Disputes

Outspoken, outlandish, but is he completely out of his **** mind???  At a recent court hearing Los Angeles Clipper’s owner Donald Sterling addressed his wife Shelly Sterling’s accusations that Donald is mentally incapacitated, as part of her attempt to take over the couple’s trust and unilaterally sell the Los Angeles Clippers.  Not only did Mrs. Sterling accuse Donald of being mentally incapacitated, she had two physicians evaluate and determine that Donald Sterling was in fact mentally incapacitated!  His attorneys, of course, dispute these claims.  And, while a late discovery that he has been suffering from early stages of dementia may ease public resentment towards Mr. Sterling, Donald made it clear that he has no interest in reaching for public sympathy.

When Sterling’s wife’s attorney questioned Sterling’s motivation for attempting to block the sale of the team, Mr. Sterling denied that his efforts were an attempt to “restore his dignity” and added: “the reason you are handling the case is because you want to charge millions in fees, right?”  Furthermore, Mr. Sterling was described as being combative in court, and was even warned by the judge not to try to control the courtroom.  While it remains unclear how Sterling’s antics will affect his case, all signs point towards a lengthy dispute between the Sterlings.  The good news for Donald Sterling is that he has the money to fund a lengthy battle in court.  The bad news for you is that you are not a beneficiary to the Sterling Family Trust account!  So how can you avoid and/or resolve common trust disputes without an extended battle in court?

 

• Don’t Leave Anything To Chance

Donald Sterling Sterling’s trust dispute falls on one provision of the Sterling Family Trust; a provision that is common in to most revocable living trusts.  The provision provides that if one trustee becomes mentally incapacitated the other can act as the sole trustee.  So, what’s the problem?  Well, like most provisions of its kind, all that it takes to determine a trustee incapacitated is a single physician’s diagnosis, which of course can be refuted by another physician’s diagnosis, and the result is a dispute over capacity.  The solution, however, is not to avoid incapacity clauses, as these serve a valuable purpose.  Rather, the solution is to make sure that you (read your experienced attorney) draft a comprehensive and detailed document that clearly lays out the procedure for resolving common issues, such as capacity.

• No-Contest Clauses

Another common provision that you may want to make sure is in your revocable living trust and is enforceable as written, is a “no-contest” clause.  A “no contest” clause, under California law, penalizes beneficiaries who contest a trust or will in court without probable cause.

• Do Not Try To Navigate California’s Probate Code On Your Own

While it may seem counter-intuitive to hire an attorney to save money, there is no better way to insure that your rights are protected following the death of a loved one, or during a trust dispute, than to seek legal advice from an experienced California attorney.  Attempting to navigate the Probate Code alone can be very confusing at best, even for those who have some background in law; such as Donald Sterling.

WAS YOUR DRIVER’S LICENSE SUSPENDED- WHAT YOU NEED TO KNOW ABOUT DMV HEARINGS AND DUIs

If you were arrested in California for drunk driving, your license will likely be suspended. In most circumstances the arresting officer will confiscate your driver’s license and provide you with a “Notice of Suspension”. This notice acts like a temporary license for 30 days. Basically, you must request a DMV hearing, formally known as Driver Safety Administrative Per Se Hearing, within 10 days after an arrest. If you fail to request a DMV hearing within 10 days, your license will automatically be suspended at the end of the 30 days. If you do request the hearing within 10 days, your suspension/revocation will be delayed pending the outcome of the hearing.  

 WHAT TO DO ONCE YOU GET A DUI HEARING:

When you are arrested for DUI, it is likely that you will be subject to two separate proceedings. One is the DMV hearing which is an administrative proceeding regarding the suspension or revocation of your driving privileges. The second, is a criminal trial in court which determines if you are innocent or guilty of a crime such as driving under the influence and/or driving with a BAC of 0.08% or higher.

Although a DUI hearing is more informal than a court hearing, you are still entitled to rights at this administrative hearing. At the hearing, you are entitled to:

• Review and challenge evidence,
• Subpoena and present witnesses (including the arresting officer)
• Cross-examine witnesses, and
• Testify on your own behalf

HOW TO WIN A DUI HEARING:

Here are five common DUI defenses that may apply in your case, and get your suspension set aside by the DMV hearing officer.

1. You weren’t driving –

If the officer didn’t personally observe you driving, and (1) the DMV doesn’t subpoena any witnesses who did see you driving , or (2) there is no other evidence that you were driving, then the DMV should set aside the suspension.

2. The officer didn’t have probable cause to stop you in the first place-

If the officer didn’t have probable cause to stop you for driving under the influence, the suspension must be set aside.

3. The officer didn’t observe you for 15-minute before administering chemical test. 

Title 17 of the California Code of Regulations governs how breath and blood tests must be administered, collected, stored and analyzed, and officers are required to adhere to these regulations. One of these regulations says that the officer must observe you for atleast 15 minutes before conducting the breath test. If the officer didn’t observe you then the blood alcohol test results is likely wrong, and this could render the DMV to set aside the suspension at the hearing.

Title 17 also states that breath testing instruments must undergo an accuracy check every ten days or 150 “blows”.  If you provided your samples on instruments that failed to adhere to these standards then the BAC results are likely inaccurate.

4. The officer didn’t properly advise you of the consequences for refusing to submit to a chemical blood or breath test

If you refuse to submit to a DUI chemical blood or breath test, the officer must advise you that your driver’s license will automatically be suspended for one year.  This admonition is in writing and the officer is supposed to read it word for word to you.  If he/she fails to do this, you could win your DMV hearing.

Therefore if the officer forgets to read it to you, doesn’t read it verbatim, tells you that your refusal could result in mandatory suspension, instead of will result in suspension then the suspension could be set aside.

If you in fact didn’t refuse to submit to a chemical test and merely were further inquiring and the officer misinterpreted it as a refusal to submit to the test then the case should be dismissed. If you didn’t refuse and there is no chemical test then it is likely there is no case against you, and a DMV administrative hearing will be set aside.

5.  There was an error in the officer’s report

If the arresting officer fails to report the BAC results on the report, fails to sign the report, or records the wrong BAC then this could cause the case to be dropped.

IF YOU DON’T GET A DMV HEARING OR YOU LOSE AT THE HEARING, HOW LONG WILL YOUR LICENSE BE SUSPENDED AND WHETHER YOU ARE ELIGIBLE FOR A RESTRICTED LICENSE:

	Length of suspension	Can you get a Restricted License?	Other
First DUI Offense	If this is your first DUI offense your license will be suspended for 6-10 months	After the 1st month you may be eligible for a restricted license which would allow you to drive to and from work and to DUI school. You are eligible if you meet the following criteria: Enroll in CA DUI school Submit an SR-22 insurance form and Pay $125 installment fee.	If your DUI case caused injury to another person or you refused to submit to a chemical blood test, the DMV may suspend your license for one year.
Second DUI Offense	If this is your second DUI in 10 years, then the DMV will suspend your license for 2 years.	You may be eligible to convert the suspension to a restricted license after one year, or 90 days if your case was not a DUI involving drugs and there were no other aggravated factors. (To be eligible for restricted license in 90 days you must meet the criteria above and, 1.submit proof of enrollment in an 18-month or 30-month California DUI school, and 2.submit proof that you have installed an ignition interlock device.	If DUI caused injury then license suspended for 3 years (may get restriction after 1 year if you meet the criteria above). If refused to chemical test, suspension is for 2 years.
Third DUI Offense	If this is your 3rd DUI in 10 years then the DMV will suspend your license for 3 years.	You may be eligible for restriction after 1 year if meet criteria.	If the DUI caused injury to another person, then the DMV will suspend your license for 5 years (may still qualify for restriction after 1 year). If refused to submit to chemical test suspension is for 3 years.
Fourth DUI offense	If it is your 4th DUI in 10 years then it’s considered a felony, and your license will be suspended for 4 years.	You may be eligible for restriction after 1 year if meet criteria above.
Underage DUI	If you lose your DMV hearing, your license will be suspended for a period of one year.  If you do not yet have a driver’s license, your privilege to obtain a driver’s license will be postponed for one year.	If you refused a chemical test, your license may be suspended for 1-3 years depending on how many prior DUI violations you have.

 

 

 

HOW YOU CAN REDUCE YOUR FELONY CONVICTION TO A MISDEMEANOR

Back in 2013, singer Chris Brown was charged with assault after allegedly attacking a man outside the W hotel. The singer later had the felony assault charge lowered to a misdemeanor, and many people were shocked by the relief the judge granted the singer. However, what many people don’t know is that you can actually have a felony conviction lowered to a misdemeanor if your case meets two simple requirements.

California Penal Code 17(b) requires that (1) the underlying offense must be a wobbler, and (2) probation must have been granted.

The first requirement is that the offense has to be a wobbler. Under California law, a “wobbler” is an offense that can be charged and punished as either a felony or a misdemeanor. These include such crimes as burglary, assault, vandalism, and fraud.

The second requirement is that probation must have been granted. If after convicted or if after you violated your probation, you were sentenced to state prison, you are not eligible for a reduction. However, if you spent time in county jail you are still eligible.

If both of these two requirements are met then you are eligible, and our seasoned criminal attorneys can bring a 17b motion on your behalf to have the felony charge lowered to a misdemeanor. Such motion may be made if you’re either currently serving the felony probation or if you have already completed your probation.

After the motion is made the judge has discretion on whether to reduce the conviction to a misdemeanor. There are a few factors that the judge usually considers when deciding whether to grant the reduction:

1. the nature of the offense
2. the facts of the case
3. your compliance with your probation terms and conditions
4. your criminal history, and
5. your personal history.
6. Also, whether ‘no reduction’ was negotiated in the plea bargain (if so, the judge likely won’t grant)

If you do meet the requirements our attorneys will petition to have you granted a reduction. Having your conviction reduced to a misdemeanor could mean being able to maintain a professional license, not listing the felony conviction on a future job application, and restoration of your gun rights.

JUSTIN BIEBER’S SHOCKING DEPOSITION!

Justin Bieber was recently sued by photographer, Jeffrey Binion, who alleged that the singer directed his bodyguards to attack him and threaten him with a gun. Justin Bieber’s deposition in that suit took place Thursday, and it was anything but normal!

In the four and a half hour depositions the singer continuously grunts, makes obscene comments, and even falls asleep during questioning. Here is the best part, YOU GET TO SEE IT ALL!

TMZ has somehow obtained a copy of deposition for the lawsuit and have cut it down to the most shocking moments, and here it is.

CHIPOTLE IS SUING SINGER, FRANK OCEAN

Frank Ocean backed out of a contract with Chipotle!

According to the suit, filed Friday in Los Angeles Superior Court, Chipotle signed Frank to a $425,000 deal to sing a remake of “Pure Imagination” for a new animated ad to promote local and sustainably-sourced food, while warning of the dangers of industrial farming.

In July 2013, Ocean was paid $212,500 with another $212,500 to come after he delivered the track. But on August 7, 2013, Ocean failed to deliver the song and told Chipotle he would not participate because he wasn’t happy about having the Chipotle logo appear in the ad. Really?! It’s a chipotle ad, of course they were going to put their logo on it.

Anyways, Chipotle is now suing the singer for the $212,500 it paid him as well as for additional damages to be determined at trial.

Just this morning, Frank posted a photo of the check he sent to the Mexican Grill after the company sued him for $212,500, and on the memo portion he had a very obscene message for Chipotle, “F*** OFF.”

Frank posted the image on his Tumblr account. However, Chipotle representatives say they haven’t yet received the check.

However, our instincts tell us Chipotle won’t dismiss the lawsuit as they likely are entitled to other damages such as the cost to hire a new singer to sing for the ad. If you or someone you know entered into a contract and the other party failed to perform, you need an experienced lawyer who can help you recover all the damages you are entitled.

Also, just in case, you were wondering, Fiona Apple ended up doing the Chipotle ad.

 

JUSTIN BIEBER NOT GUILTY OF DUI- ARRESTING OFFICERS CAUGHT IN A LIE!!! 15 WAYS TO GET YOUR DUI CASE DROPPED

We all remember this mug shot. Yes, this is where Justin Bieber was arrested in Miami a few months back for DUI. However, turns out the singer may get off!

Apparently, the Miami Beach officers who pulled Bieber over for drag racing and then arrested him for DUI may have been lying this whole time!  The police report says Bieber was pulled over for drag racing rapper Khalil at speeds between 55 and 60 MPH.

However, TMZ has just recently obtained the GPS readout of both Justin’s car and the officer’s, and turns out no one was racing!!!!

According to the GPS readout, the cop car was going 11 MPH at the 2600 block of Pine Tree Dr. (which is where the cop says he first spotted the singer in the Lambo) and 31 MPH (where he claims the two were drag racing).  Bieber’s GPS shows that he was going 27MPH on that block. So where exactly did this alleged drag race happen, no one knows.

Not only is the GPS readout placing the officers credibility at issue, it is also putting into question whether the officers had probable cause in the first place to pull over the singer. Maybe Bieber wasn’t lying when he was screaming “What did I do.  Why did you stop me?”

Bieber may be able to have his case thrown out if the cops didn’t have any probable cause for the stop. In fact, most DUI cases are full of errors, and there are many ways that a DUI case may be dismissed.

HERE ARE 15 WAYS YOU CAN GET YOUR DUI CASE DISMISSED:

 1. Officer didn’t have Probable Cause for the Stop

The officer must have probable cause to stop, detain, or arrest you for DUI. If there was no probable cause the evidence, and the case may get dismissed.

The police must have a reasonable suspicion that you are engaged in a criminal activity before they can stop your car, conduct a DUI investigation, or arrest you for a DUI. If an officer does not have the required probable cause before stopping you, any evidence that is obtained as a result of that illegal procedure will be suppressed and can’t be used against you.

2. Violations of Title 17 of the California Code of Regulations

Title 17 of the California Code of Regulations sets forth the requirements the officers must follow in conducting DUI blood and breath tests, as well as how to analyze and collect the samples. These regulations are very specific, and any violation of California’s Title 17 can lead to the chemical test being suppressed and probably your case being dismissed.

Violations of Title 17 includes the following:

1. The technician who drew the blood was not property trained or certified;
   1. If the test was signed by someone that required supervision or was not certified that is insufficient.  Shea v. Department of Motor Vehicle, 62 Cal. App. 4th 1057 ( Cal. App. 4 Dist. 1988)
2. The DUI breath testing instrument used was not properly calibrated.
3. The laboratory report was not signed at or near the time it was completed.
   1. Report signed a week after it was completed not sufficient. Molenda v. DMV 172 Cal. App. 4^th 974 (Cal Crt App 6^th Dist. 2009).
4. The officer didn’t observe the DUI suspect for 15 minutes prior to administrating the test.

3. An Improper 15 Minute Observation Before the Breath Test was Administered

California regulations require the officer to watch the DUI suspect continuously for at least 15 minutes prior to administering the breath alcohol test. The officer must make sure that during this period the person does not consume anything, burp, belch, hiccup or regurgitate. Any of these may cause alcohol to travel from the stomach to the mouth causing an inaccurate reading because it test the “mouth alcohol” and not the alcohol in your blood. Often cops are completing documents, discussing something with their partners, and not observing the suspect. This can place the evidence into question and maybe dismiss the case.

4. “Rising Blood Alcohol”

Rising blood alcohol means that your BAC was a higher level when you took the test than it was when you were actually driving.

Alcohol takes a certain amount of time, typically between 50 minutes and three hours, to absorb into your system. Your blood alcohol level is still rising, which can cause a false high DUI BAC result.

This occurs because your BAC at the time of your blood or breath test is irrelevant. What is relevant is what your BAC was at the time of driving. Just because you have a BAC that is above the legal limit when you submit to a DUI chemical test, does not mean that is what your BAC was at the time of driving.

6. Police Misconduct

Even if you were driving under the influence, police misconduct may knock out your DUI charges.

If the police report is inaccurate, if the officer didn’t comply with Title 17 procedure, or if the arresting officer’s courtroom testimony is untruthful the case may be thrown out.

7. Faulty and Unreliable Breath Tests

The DUI breath tests used by officers may also be unreliable because:

1)      Improper use by the officer

2)      Inaccuracy

3)      Physical conditions (gastroesophagel reflux disease aka GERD which can cause alcohol to travel from the stomach back to the throat and mouth and give an improper reading of that persons BAC.)

8. Weaving within your Lane Doesn’t Justify a Stop

Merely weaving within your own lane or getting close to the fog line/ yellow line does not mean you were intoxicated. In fact, courts have ruled that this usually does NOT justify a DUI traffic stop—unless an “experienced officer” observed “pronounced weaving” for a “substantial distance.” Again, this would result in no probable cause for the stop and would cause the evidence from the stop to be suppressed.

 8. Mouth Alcohol Results in False High BAC Levels

DUI breath testing instruments are designed to capture a sample of breath from your deep lung tissue; this is known as “alveolar air.” However, there are many ways in which residual alcohol can remain in your mouth and give an inaccurate reading.

1. Dental work trapped small amounts of alcohol-soaked food in your teeth,
2. You burped or regurgitated.
3. You suffer from acid reflux, heartburn, or GERD.
4. You consumed medicines containing alcohol (many cough syrups)
5. You used mouthwash or mouthspray

9. Low Carb Diet can render False BAC Test Results

Conditions such as diabetes or an Atkins-style diet that is low-carbohydrate, high-protein, or hypoglycemia can trick a DUI breath test and result in a false high BAC.

On a high-protein diet like Atkins, the body produces ketosis as it burns stored body fat for energy. Consumption of carbohydrates during ketosis can cause the body itself to produce a substance called “isopropyl alcohol” and most DUI breath tests can’t distinguish between “isopropyl alcohol” from ethanol (the alcohol that we drink and that causes impairment).

10. Blood Tests Aren’t Very Accurate Either

There are multiple factors that could taint the results of your DUI blood test results:

1. Blood formation
2. Blood contaminiation
3. Improper storage of your blood sample

10. Field Sobriety Tests Are Not Accurate.

California field sobriety tests (“FSTs”) are not accurate indicators of impairment. In fact they are only 65%-77% accurate at detecting impairment.

Innocent explanations can also explain poor performance on Field Sobriety Tests, such as officer-induced intimidation, allergies, fatigue, eye irritation, embarrassment, frustration, and/or nerves.

11. The DUI Standardized Field Sobriety Tests Were Not Properly Administered

The National Highway Traffic Safety Administration (NHTSA) devised national standards for how DUI officers are to administer the three standardized field sobriety tests:

1. one leg stand,

2.walk and turn or walk the line

3. Horizontal Gaze Nystagmus (HGN)

But DUI officers often fail to adhere to these national guidelines. Many never even received training as to the NHTSA guidelines. This opens up their whole DUI investigation to attack.

12. The Non-Standardized Field Sobriety Tests Lack Reliability

The non-standardized field sobriety tests include (among others): the finger-to-nose test, the finger count test, the hand pat test, the coin pickup, the alphabet test, the reverse counting test, and the Rhomberg test (tilting your head back and estimating 30 seconds). The National Highway Traffic Safety Administration (NHTSA) has set no standards for how to administer these tests and these tests often have less accuracy.

13. You Were Not Driving

The police must prove more than just that you were under the influence; they must also prove that you were driving. For instance, if you were involved in an accident and no one saw you driving your car, or the police found you when you were in your parked car, it will be more difficult for the prosecution to prove that you drove.

14. A “Disconnect” May Exist Between Your BAC And Symptoms Of Intoxication

Sometimes the BAC results will not accurately reflect someone’s impairment. For instance, someone’s  BAC reading comes back two or three times the legal limit. However, the person’s driving behavior and field sobriety test results are consistent with sobriety or only slight impairment.  When the blood alcohol level does not match up with the symptoms expected at that level that is referred to as a “disconnect case” and will weaken the prosecutions case against you.

15. Inherent Error Rate In DUI Blood and Breath Alcohol Testing
Even if the officer did everything “by the books”  an inherent error still exists and the results can still be inaccurate. Most experts agree the inherent error rate is about +/- .02 for DUI breath testing and +/- .005 for DUI blood testing.

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