What if the police used Entrapment in my DUI?


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Tag Archives: dui defenses

What if the police used Entrapment in my DUI?

What if the police used Entrapment in my DUI?

What if the police used Entrapment in my DUI?

Often, people feel that their DUI involved entrapment by the police.  In criminal law, entrapment exists where the actions of a law enforcement officer make a person commit a crime that they would have otherwise been unlikely to commit.

What if the police used entrapment in my DUI? Entrapment is defined by one source as “the conception and planning of a crime by an officer, and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion or fraud of the officer.”  Translated from legalese, that means “you wouldn’t have done it if the police hadn’t set you up.”

The most common example in a DUI case is where an officer suspects that you were driving under the influence of alcohol or drugs, but you were no longer driving your car, or your car was already stopped.  The officer then asks you to move your car, and since that is “driving”, they then arrest you immediately after doing so. Entrapment is an area that law enforcement does not like to talk about, as it implies police corruption. However, there is evidence that police officers have attempted to “trap” drivers in exactly this way in order to achieve a conviction.

What is used to prove Entrapment in a DUI?

The jury instruction in California instructs that it is the defendant’s burden to show entrapment.  The instruction read in trial states as follows:

Entrapment is a defense. The defendant has the burden of proving this defense by a preponderance of the evidence. This is a different standard from proof beyond a reasonable doubt. To meet this burden, the defendant must prove that it is more likely than not that (he/she) was entrapped.

A person is entrapped if a law enforcement officer [or (his/her) agent] engaged in conduct that would cause a normally law-abiding person to commit the crime. “

In one case in California, People v. McIntire, the court mentioned that third parties that are asked by the police to have the defendant do the illegal act can also constitute entrapment, stating:

“The purposes of the entrapment defense can be fulfilled only if it is understood that one can act as the agent of a law enforcement official without realizing the identity of his principal; the unwitting agent, though he may not appreciate the true nature of his role, is nonetheless being manipulated as the officer’s tool in a plan to foster a crime and entrap its perpetrator. [Citing another case}, ‘The function of … enforcement officials is to investigate, not instigate, crime; to discover, not to promote, crime.’”

What if the police used Entrapment in my DUI? Usually, the defense of entrapment doesn’t mix well with the law in DUI cases, because the law considers a defendant voluntarily consuming alcohol (or drugs, for driving under the influence of drugs (DUID) cases), to be a contributing factor of the crime of driving under the influence. There is a defense of involuntary intoxication in a DUI case where a person was dosed with drugs or alcohol without their knowledge, however.

The courts consider that defendants are free to say “no” when asked to drive a vehicle under the influence, even if they may not know that fact. Officers who use violence or threats of violence to make the defendant drive are a different situation since in that case, the driver would not feel free to walk away.  And driving under the influence because of a legal necessity to avoid a crime is recognized as a defense.

Contact us for questions.   Orange County DUI Attorney Robert Miller is experienced with DUI defenses, and the court system in Orange County, and can ensure you receive the best possible representation if you have been charged.

Contact our law firm today

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Defenses to a Breath Test DUI Case

Defenses to a Breath Test DUI Case

Breath Test Defenses in a DUI

A breath test using a machine is not the end in a DUI case.  There are certainly Defenses to a Breath Test DUI case. For one, the breathalyzer machine is calibrated to the “average” person, even though in the real world of testing, there is no such thing.

Breathalyzer False Positive Factors Include the Following:

The Law of Breath Testing

Breath testing may, and may not be, mandatory, depending on the type of test performed.  A preliminary alcohol screening device, used as part of the field sobriety testing, to show the presence of alcohol, which is typically not subject to the same strict calibration and maintenance (and internal electronic checks) as an evidentiary breath test, can be refused without consequence, as all field sobriety tests can.

The exception is for those persons that are under 21 or are already on DUI probation for a conviction of Vehicle Code section 23152(a) and 23152(b), or Vehicle Code section 23103.

When a person driving a vehicle is arrested for driving under the influence, he or she is required by law to submit to a test of blood alcohol or face a one year suspension of his driver’s license, or two years if previously convicted of 23152, 23153 or 23103 CVC, within the last ten years of the date of admonition (23612 CVC / 13353 CVC), as part of the conditions of your driving privileges under California Law.

The Science of Breath Testing –  How Breath Testing Works

Breath testing devices use a fuel cell, for the most part, to heat up the air and measure the alcohol captured and measured, as a percentage of the total breath captured.

In 1954, Indiana State Police employee Dr. Robert Borkenstein invented the Breathalyzer, a type of breath alcohol testing device that is still used by law enforcement agencies today.  Because all laws regarding DUI require that drivers be below a certain blood alcohol level, breath testing devices have to assume certain averages (like lung capacity), to convert that to what a blood level is assumed to be.

The Requirements for Breath Testing

The requirements for breath testing, which are made the law in Title 17, the State’s Alcohol Testing code, requires all of the following to be a valid breath test for alcohol.

  1.  The DUI breath test must have been taken within three hours of driving.
  2. The DUI breath test must have been taken using an officially approved measuring device.
  3. The DUI breath testing machine or device must have been maintained as approved by the manufacturer’s maintenance schedule.
  4. The DUI breath test must have been taken after the subject has been observed continually for fifteen (15) minutes, during which the subject has not “belched, burped, or vomited”.
  5. The DUI breath test assumes that the subject has the average Blood Breath Partition Ratio (which averages that  2100mL of breath contain the same amount of alcohol as 1 mL of blood). That figure was given as an average figure over 45 years ago by the National Safety Council’s Committee for Tests on Intoxication.
  6. The testing subject or driver must not have GERD (acid reflux), diabetes, asthma, bronchitis, or any contaminants, including breath strips, mouthwash, dental work that traps alcohol, food in the teeth, or any acetones.  Acetones are a well known false positive for alcohol in breath tests and can be gathered in the lungs by working around paints or solvents, or by air bag dust from an auto accident.
  7. The testing subject or driver must have a standard temperature of plus or minus one degree from 34 degrees Celsius.  Having a fever, being on certain medications, trauma from an accident, exercise, or certain times of a menstrual cycle, can affect temperature.
  8. The testing device or machine must be kept at a constant temperature and must be able to adjust for atmospheric pressure, altitude, or temperature changes.
  9. The testing device or machine must be kept free from radio waves or electrical interference, which can affect the operation of the testing device, including officer radio equipment, and including cell phones.
  10. The testing device or machine must be on its own power supply, not a shared power supply with any other device.
  11.  The testing device or machine MUST be calibrated every 10 days, or every 150 uses, whichever comes first under the Title 17 law (below).
  12. The officer using the breath testing device or machine must have been specifically trained on that particular device.
  13. The breath test must follow the “2/2/2” law.  That is, the machine or device must take two acceptable breath machine samples, separated in time by at least two minutes, and those two samples must agree within a .02% of each other.

DUI Breath Testing - AlcoSensor IV Breathalyzer

Defenses to a Breath Test DUI Case

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Defenses to a Breath Test DUI Case can exist and can lead to a dismissal of a DUI case, or a reduction of a DUI case.  Call our office, or Contact Us, for information on your particular case. 

(Footnote: Title 17 reads as follows regarding breath testing--

§1221.4. Standards of Procedure. (a) Procedures for breath alcohol analysis shall meet the following standards: (1) For each person tested, breath alcohol analysis shall include analysis of 2 separate breath samples which result in determinations of blood alcohol concentrations which do not differ from each other by more than 0.02 grams per 100 milliliters. (2) The accuracy of instruments shall be determined. (A) Such determination of accuracy shall consist, at a minimum, of periodic analysis of a reference sample of known alcohol concentration within accuracy and precision limits of plus or minus 0.01 grams % of the true value; these limits shall be applied to alcohol concentrations from 0.10 to 0.30 grams %. The reference sample shall be provided by a forensic alcohol laboratory. 1. Such analysis shall be performed by an operator as defined in Section 1221.4 (a)(5), and the results shall be used by a forensic alcohol laboratory to determine if the instrument continues to meet the accuracy set forth in Section 1221.4 (a)(2)(A). (B) For the purposes of such determinations of accuracy, "periodic" means either a period of time not exceeding 10 days or following the testing of every 150 subjects, whichever comes sooner. (3) Breath alcohol analysis shall be performed only with instruments for which the operators have received training, such training to include at minimum the following schedule of subjects: (A) Theory of operation; (B) Detailed procedure of operation; (C) Practical experience; (D) Precautionary checklist; (E) Written and/or practical examination. (4) Training in the procedures of breath alcohol analysis shall be under the supervision of persons who qualify as forensic alcohol supervisors, forensic alcohol analysts or forensic alcohol analyst trainees in a licensed forensic alcohol laboratory. (A) After approval as set forth in Section 1218, the forensic alcohol laboratory is responsible for the training and qualifying of its instructors. (5) An operator shall be a forensic alcohol supervisor, forensic alcohol analyst, forensic alcohol analyst trainee or a person who has completed successfully the training described under Section 1221.4 (a) (3) and who may be called upon to operate a breath testing instrument in the performance of his duties. (6) Records shall be kept for each instrument to show the frequency of determination of accuracy and the identity of the person performing the determination of accuracy. (A) Records shall be kept for each instrument at a licensed forensic alcohol laboratory showing compliance with this Section.


Diet soda and alcohol results in a higher blood alcohol level

When you have a jack and diet coke, you save calories, but did you know that you could end up with a higher alcohol level with diet soda and alcohol, than with non-diet versions of soda?

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It has been known since at least 2002 that alcohol levels raise higher, controlling for all other variables, when a drink contains artificial sweeteners, as compared with drinks with or without sugar.  That has been confirmed in peer reviewed studies in 2012 and 2013.

The most recent research paper on the subject tested the effect using differing doses, and to find any differences tween genders.  (Drug Alcohol Depend. 2015 Dec 1;157:197-9. doi: 10.1016/j.drugalcdep.2015.10.015. Epub 2015 Oct 23.)


Consumption of food with alcohol before or during drinking is an important factor that will decrease peak breath alcohol concentrations (BrAC).  With the  evidence showing that mixing alcohol with diet beverages results in higher BrAC when compared with mixing the same amount of alcohol with sweetened beverages, the purpose of the more recent study was to examine the phenomenon using two different moderate alcohol doses.

The testing method was simple: Twenty study participants, 10 of which were males, and 10 females, attended five sessions where they received 1 of 5 doses (0.91 ml/kg vodka + 3.64 ml/kg of diet soda, 0.91 ml/kg vodka + 3.64 of regular soda, 1.82 ml/kg vodka + 7.28 ml/kg diet soda, 1.82 ml/kg vodka + 7.28 ml/kg regular soda, and a placebo beverage).

BrAC was recorded repeatedly up to 180 min after dose administration, and the results were that participants had significantly higher BrAC when the mixer was diet as compared to regular for both alcohol dose conditions. No gender differences were observed.

When you have a night out drinking, be aware of the fact that mixing alcohol with diet beverages can result in higher alcohol levels when compared to the same amount of alcohol administered with a similar sweetened beverage.  The study noted that most individuals were unaware of these differences, which is a risk that could put people above the legal limit without knowing it.

If you find yourself facing a DUI, then please call our firm, toll free, at (877) 942-3090, anytime.  We are here to help.

DUI dismissal is the result of being too drunk in Georgia case

DUI Dismissal can result when a driver is too drunk to understand what he is being informed of.

A Georgia Supreme Court ruling earlier this year has created a legal trick by which drunk drivers are getting key evidence against them thrown out, by arguing they were too drunk.

“It certainly is a ruling that’s going to impact every DUI case,” said DUI defense attorney Mike Hawkins.  And our Orange County DUI Lawyers agree – it’s a valid defense under solid legal principles that could result in the dismissal of DUI charges.

“Think about consent in any context, it has to be knowing and intelligently given,” said Hawkins, which he argues a driver cannot do when they’re intoxicated.

National College of DUI Defense Attorney Lance Tyler first won this argument for his client John Williams, who was pulled over for a alleged DUI in 2012. The case went all the way to Georgia’s Supreme Court, which ruled this year that Williams may not have “actually” consented to giving his blood, and that Gwinnett State Court Judge Joseph Iannazzone should reconsider his earlier decision not to suppress the results of his blood test.

“The defendant wasn’t actually capable of an informed waiver of his constitutional rights,” Tyler had argued to Judge Iannazzone.  A week later, Iannazzone kicked out Williams’ blood test, along with the blood alcohol concentration results (BAC) for five other drivers whose cases he’d heard.

More shockingly, Hawkins has said, “If a DUI defense lawyer is not raising the ‘Williams issue’ I frankly think it’s malpractice”.

This case put the prosecutor in the strange position to argue that the defendant was not in fact, too drunk to know what was going on.  Normally prosecutors would argue that the defendant was intoxicated to the maximum amount possible.

Successful “Wiliams” arguments have been filed elsewhere in Georgia — in Cherokee, Fulton, and DeKalb counties also.

Just like in California, officers and prosecutors in GA have traditionally relied on what’s called impliedconsent, an express condition given when you get your driver’s license.

But this current case calls into question that consent, and the language officers are required to read to drivers in that state.

The driver’s blood alcohol concentration registered .225, but Judge Iannazzone threw out the evidence, noting that the driver also had “a pretty good accident” which could have ”rattled” him.

The judge’s order says, “This court finds that the State was only able to show that Defendant’s responses indicated acquiescence to the officer’s request… but was unable to show actual consent.”

DUI Dismissal to be contested.

The DUI Prosecutors in several cases in Georgia plan to appeal individual cases in that state.  Stay tuned.