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Can I be Arrested for a DUI for Having Alcohol on My Breath?

Posted by Christopher Martens | Sep 14, 2015 | 0 Comments

In California, there are two unlawful actions that can lead to a DUI conviction. Under California Vehicle Code 23152, it is unlawful to drive while under the influence of alcohol and/or while driving with a blood alcohol concentration, or BAC, above .08%. Because both of these actions are unlawful, you could face criminal prosecution for either of them. It is important to note that these are not the same exact thing in every case. You could drive impaired from alcohol but not be over the .08% limit. Similarly, you could be over the .08% legal limit and not be driving any differently than you usually do. It is important to note that since there are two unlawful actions that can lead to a DUI, you can be convicted of both offenses. However, you will only be punished for one. These laws work together, in complement, to account for variance in how each person handles alcohol. They also allow those who do not take a BAC test to be convicted of driving while under the influence of alcohol. This is especially important for the purposes of arrests. Prior to being detained, you have the right to politely decline taking a BAC test. However, the police officer may be able to arrest you regardless, if he or she had probable cause to believe you had been driving under the influence of alcohol. They can form this probable cause by observing things like your appearance, your speech patterns and your coordination. They may do this while asking you questions while you are still in the car or, they may ask you to exit your vehicle to do a roadside sobriety test. Having alcohol on your breath could be enough probable cause for an officer to arrest you, however police officers have a good deal of discretion when it comes to arresting people for DUIs. It takes a trained eye to spot subtle signs of alcohol impairment and likewise, not every officer will detect the level of alcohol in your breath consistently. There are some medical conditions that can cause an alcohol-like odor on your breath. Similarly, there are some foods or combinations of foods that can provide evidence of alcohol in your breath. Even certain over the counter or prescription drugs can cause your breath to smell like you've been drinking, which may be enough to get you arrested.

Based on these kinds of observations and the results of any roadside sobriety test you take, an officer could have sufficient reason to arrest you under suspicion of a DUI. Depending on the circumstances, you may have to submit to a BAC test while in custody. So, even in absence of a BAC test, there are many signs, like having alcohol on your breath, that a police officer could notice that would give them probable cause to arrest you. While this may seem unfair, if you are falsely arrested for a DUI because you showed some of these signs, you may have a good defense in court. Speak with an experienced DUI defense attorney if you did not take a BAC test and feel you were falsely arrested. If there were good reasons for why you showed any of these signs, discuss this with an attorney to see what defense strategy they recommend. The prosecution must prove, beyond a reasonable doubt, that you had been driving under the influence of alcohol and in absence of any hard evidence; this may not be so easy. Providing proof you have a medical condition or some other legitimate reason why you had alcohol on your breath may turn your case in your favor. In any case, speak to a DUI defense attorney about your options. If you don't know how to challenge the officer's observation that you had alcohol on your breath or you don't know how to prove you were not drinking alcohol, make sure you prepare yourself fully prior to your hearing. This area of DUI law can be complex and it is highly advisable you consult with an attorney to plan a strategic defense.

If you are facing DUI charges in Tulare, Kings or Fresno counties, The Law Offices of Christopher Martens can help. Experienced in DUI and criminal defense, attorney Christopher Martens can fight aggressively for you to ensure you are charged fairly and justly based on correct facts. Contact our Visalia or Hanford offices at 559-967-7386 or email us at [email protected] to discuss your options for defending your case.

About the Author

Christopher Martens

Bio Visalia and Bakersfield criminal defense attorney who has dedicated his life to helping those who have been accused of crimes or injured due to the negligence of others.


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