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If you have been charged with a DUI, you were likely arrested after having submitted to some blood alcohol tests. One such test that many people submit themselves to during a arrest, is a field sobriety test. However, a field sobriety test is a poor indicator of intoxication and many people fail it.

In order to understand the role of a field sobriety test in a DUI arrest, let’s take a step back and walk through an arrest.

Donny is driving home from a birthday party and had a beer and nothing more. He has not slept well the night before and is tired and decides to call it an early night. A beer does not cause Donny, who is 6’2” and 170 pounds to be intoxicated. On his way home, he makes a right turn at a red light without stopping. This is grounds for officers to stop Donny, since he is in violation of traffic laws. Donny is stopped and officers smell beer on his breath from the one beer that he had.

In order for prosecutors to convict you of Driving under the influence, they must prove two elements beyond a reasonable doubt: that you were driving, and you were intoxicated at the time you were driving. It is crucial that prosecutors prove both elements, not just one. Unless they can prove both elements, they cannot convict you.

For example, Dana was drinking at the bar and then walked home to her apartment which was a few blocks away. Officers cannot arrest her for a Los Angeles DUI. Even though she was intoxicated, she was not driving. Similarly, David was driving home from the bar but had only had water while he was there. He cannot be arrested for a DUI because although he was driving, he was not intoxicated.

This is why it is very crucial whether driving can be proven in a DUI case. Oftentimes it is very clear as to whether there is driving or not, but sometimes it is not so cut and dry. When it is not so clear, it makes prosecutor’s case weaker and the case for the person being charged much stronger.

Under California Vehicle Code §23152, it is unlawful to be operating vehicle while under the influence of drugs, alcohol or both. In order for a person to be charged, prosecutors simply have to have reason to believe that a person is guilty of driving under the influence. However, for a person to be convicted of a DUI, prosecutors must prove, beyond a reasonable doubt, that the person being charged was not only driving, but was also intoxicated at the time he or she was driving. Both elements must be present, if there is only one, then the person cannot be found guilty of a DUI.

It is easier to demonstrate in a court of law that a person is under the influence of alcohol while operating a vehicle, than it is to prove the influence of other drugs. Alcohol can easily be tested for, and detected in a bloodstream. This is why when officers believe a driver is under the influence of alcohol, they will administer a breathalyzer test, or a blood test. The test will often provide accurate results as to the amount of alcohol in a person’s blood stream. Based on date, the legislature has even been able to quantify the amount that would qualify as intoxicated.

The use of drugs, specifically marijuana, is a lot harder to demonstrate as a blood test or breathalyzer will not provide an accurate calculation of intoxication. Even if there is marijuana present in a person’s system, it could have been from a day before, and the person may not be under the influence.

In the previous blog, a brief overview was provided regarding the difference between an arrest, charge and conviction. Further, an example was given. What follows is the analysis.

At the point where David was stopped and administered a field sobriety test, he has only been arrested. The officer found that there was probable cause to believe that David was intoxicated and that he was operating a vehicle. Proving that David was driving a vehicle will be easy with the facts of this case because the officer himself observed David driving, and David was operating the vehicle when he was asked to pull over. Determining whether the driver is intoxicated is a little bit trickier, but in this fact pattern may be stronger for the officer.

The officer’s observations support his belief that David is intoxicated. This includes that he is slurring, and the odor of alcohol as well as his nervous, agitated behavior. Furthermore, David has admitted to having had some drinks. This admission will be strong evidence, as well as the field sobriety test reading of .1.

When you have been arrested for a DUI it does not mean that you have been convicted, or even charged. All it means is that officers have probable cause to believe you are in violation of California Vehicle Code §23152 or 23153. This means that they have enough evidence that there is more of a probability than not that you are intoxicated and operating a vehicle.

For a DUI, you have to have been intoxicated, either from drugs and/or alcohol, and operating a vehicle while under the influence. Once an arrest has been made, the Prosecutor’s office will have to review the evidence and determine if charges will be pressed against you. Oftentimes, you will get a court date to appear and will find that no charges have been filed, or no charges have been filed at that time.

If you are charged, this does not mean you have been convicted. You have rights that are protected by the Constitution and convictions made must follow the guidelines and protections given to you by the Constitution. You must voluntarily, knowingly, and intelligently enter a guilty plea. This can only be after you have been explained your rights, the consequences, possible sentences, and the charges against you.

The criminal court system can be complicated and confusing. There is an entire process and hurdles that must be met at each stage before you move to the next step. Furthermore, there is a decision to be made before moving towards trial. These decisions must be made with careful thought and decision before heading towards trail. There are lots of things to consider, and many of these decisions require legal knowledge and background. That is why it is a good idea to consult with a Los Angeles Criminal Defense Lawyer on whether or not it is a good idea to take your DUI case to trial. There are some very important things to consider.


Going to trial is expensive. There are many things an attorney needs to do before trial even starts. They must gather evidence, through interviewing witnesses, looking at potential exhibits, and reviewing countless documents. They must look into surveillance videos, and calibration of different tests that were taken. They must also prepare witnesses, testimony and the presentation of their case. Additionally, they must do research on the law, cases, and file any motions that are necessary. Going to trial is not always necessary,  and based on the evidence and the prosecutor’s arguments, it may not be worthwhile.

An officer must meet certain criteria before they are able to pull someone over for suspicion of driving under the influence, and before they are able to administer and alcohol tests. To better understand the process, lets outline an analyze an example.

David is driving home from a friend’s birthday party. At the party he has had two beers. He feels fine to drive and believes he has no alcohol in his blood. When David is driving home, he thinks he can catch the yellow light, but instead, when he crosses the crosswalk, the light is red. Officers immediately follow him and ask him to pull over.

Officers need a reason to stop David, referred to as probable cause. They cannot arbitrarily pull someone over. The driver must have a traffic violation, or be missing a headlight, or even have an expired license plate. Additionally, officers can pull over and question someone as part of a Samaritan stop. This is a stop where someone is pulled over at the side of the road, and officers stop to see if everything is ok.

California Vehicle Code outlines unlawful behavior that can lead to a DUI conviction in California. California Vehicle Code §23152 makes it unlawful for a person to be under the influence of any alcoholic beverage, drug, or both, and operate a vehicle.

California Vehicle Code §23153 makes it unlawful for a person to drive a vehicle, while under the influence of alcoholic beverages, drugs, or both, and concurrently do any act forbidden by law, or neglect any duty imposed by the law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.

Essentially both statutes outline the same unlawful act, but the felony has several additional elements. Let’s consider a breakdown of the elements to fully understand the difference between the two.

If you have been stopped for a DUI, it is a very scary experience. It is also likely that you were taken into custody for at least a few hours. It is not a pleasant experience, and one that you would likely want to avoid in the future.

Many of our clients come into our office with no idea as to how the criminal courts process works. They do not know what the charges mean, or what their court date will entail. If you have been arrested for a DUI, this does not mean that you have been found guilty of a DUI. There will not be anything on your record, other than the arrest, which will only appear on your arrest record.

Before a court can find you guilty of a DUI, they must prove two elements beyond a reasonable doubt: 1) that you were driving and 2) you were intoxicated. Both elements must be present, it cannot be one over the other. If both elements are not proven beyond a reasonable doubt in a court of law, then you cannot be found guilty of a DUI.

What is alcohol monitoring?

Alcohol monitoring looks like a small bracelet that you wear on your ankle. It monitors your alcohol use and transmits reports to either the court, or to you directly. It is referred to as transdermal monitoring because it gathers information transdermally, through your skin.

What is the purpose of transdermal monitoring?