DUI Glossary

Frequently used lawyer terms pertaining to San Diego DUI / drunk driving arrests defended by attorneys:

 

Absorption – Entry of alcohol into blood. The absorptive phase is an extensive period during which time alcohol continues to go into one’s bloodstream after consumption.  Peak absorption is the highest risen level of blood alcohol content (BAC) absorbed in one’s bloodstream before BAC begins to go down.

Administrative Per Se (APS) – DMV’s independent administrative per se quasi-civil license action against a driver suspected of a San Diego DUI.  Respondent’s DMV defense lawyer has just ten (10) calendar days to request an APS hearing to challenge the DMV’s attempt to suspend one’s driving privileges. This DMV APS action is independent from court proceedings.

Acetone – Organic compound possibly part of one’s breath which is often misread as “alcohol” by San Diego Sheriff’s Department’s DUI Intoximeter’s Inc. breath test and San Diego Police Department’s DUI Intoxilyzer breath test.

Alcohol – The drug ethanol.  A central nervous system depressant with a range of side effects. The amount and circumstances of consumption play a large part in determining the extent of intoxication. For example, consuming alcohol after a heavy meal causes alcohol to absorb more slowly.

Arraignment – The first scheduled San Diego DUI court date, when one’s criminal defense attorney enters a not guilty plea and the case is continued so the San Diego county Prosecutor and the criminal defense lawyer can engage in discovery proceedings including the exchange of evidence.

Attacking and Defending Drunk Driving TestsMasterful Book featuring everything a lawyer should know including voir dire, cross-examination questions, and science to help an attorney convince a jury that a person accused of a DUI deserves an honest reviewBy Don Bartell, Mary McMurray and Anne ImObersteg.

BAC – Blood Alcohol Content.

BAC .15% or higher DUI enhancement – Level which allows San Diego DUI Judge to consider in determining additional terms & conditions of probation including but not limited to San Diego County Jail, Vehicle Impound, more Public Work Program or Community Service, Ignition Interlock Device, Higher Fines or Fees, & Limitations on Driver’s License. [California Vehicle Code Section 23578]

BAC .20% or higher – Threshold mandating a person to complete a required 9 month alcohol program for persons convicted of first San Diego DUI offense. [California Vehicle Code § 23538(b)2]

Black-and-White Fever – A San Diego DUI phenomenon originating from a typical reaction of normal drivers followed by a marked police car usually painted “black and white”.  A driver sees a San Diego county DUI police car approaching.  Apprehensive, the driver focuses attention on the police car in the rear view mirror.  The stress on the driver causes concentration on pure driving to be interrupted.  The driver increasingly looks more in the mirror than on the road.  As driver moves eyes back & forth, the vehicle tends to drift. The driver then corrects the travel of the vehicle back to the center of the lane. The existence of the San Diego officer can cause probable cause for a DUI stop because of ensuing straddling or weaving, erratic movements, and increases or decreases in speed often caused by tension making one’s foot lift up & push down on the accelerator.

Blood Test DefensesPossible defenses used by lawyers to Blood Tests in San Diego county.

Breath Test DefensesDefenses which could apply to DUI Breath Testing in San Diego county.

Breathalyzer – The breath test machine utilized by law enforcement used to estimate the blood alcohol content (BAC) of a person charged with a San Diego DUI or Drunk Driving.  The machines normally used in San Diego County are the Intoxilyzer made by CMI or Intoximeter’s EC/IR.  This DUI test machine is normally one of the Implied Consent choices for tests.  Lawyers have multiple resources to attack the credibility of breathalyzers.

Burn-off – The body metabolizes alcohol, eliminates it from one’s system through the vital organs’ functioning. The rate of burn-off varies from person to person.  Burn-off can be different for the same person depending on a number of variables. Because of burn-off variances, the prosecuting attorney’s theory of retrograde extrapolation (estimating a San Diego DUI accused’s BAC at time of driving based on a test done later) is an incredibly difficult if not impossible proposition.  Burn-off is one reason why breath test results are uncertain and no more than estimates of one’s BAC.

California Drunk Driving Law – “The Bible of Drunk Driving Defense”, as recognized by thousands of California attorneys and judges.  The most comprehensive reference book for California DUI law.

California DUI Lawyers Association Specialist – A member ofCalifornia DUI Lawyers Association (CDLA) who is regarded as a “Specialist,” the highest DUI attorney level recognized by this statewide organization. CDLA is the oldest DUI / Drunk Driving Defense Bar Association in the U.S.  While many lawyers advertise themselves as specialists, the truth is there are just a few such CDLA “Specialist” Lawyers in San Diego County.

Checkpoints – Roadblocks set up by police to try to trap motorists through the use of cones, signs and force.  This interactive map shows DUI Sobriety Checkpoints in San Diego & locations throughout Southern California.

Chemical Test – The San Diego DUI test for alcohol or drug concentration in a person’s blood.  Breath tests are chemical tests for Implied Consent purposes. Blood or urine tests can also be used if other drugs are suspected.

Comatose – Usually when BAC = 0.35%.

Community Caretaker – In order for an officer to make a lawful, warrantless detention based on the community caretaker exception, there must be a substantial risk to life or the possibility of major property damage.

Consequences – San Diego DUI and DMV penalties if convicted/suspended.

Court InfoCourt Locations in San Diego County, depending on location of DUI arrest.

DMV Deadline – Your lawyer or you must request a hearing at San Diego DMV within 10 calendar days of a DUI arrest so your driving privileges are not suspended.

Discovery – The State’s Evidence.  Documents include DUI report, test record, etc.  They have the burden so they must produce.  Drivers scheduling DMV hearings themselves unknowingly fail to ask for Discovery.

Driving – Often one’s ability to use control in the operation of a moving vehicle. Officers do not need to see someone actually driving in order to arrest them for San Diego California DUI.  Circumstantial evidence of driving is sometimes sufficient to establish this element.  Volitional movement of the vehicle must be proven.

Drunk Driving – A general reference to those San Diego California criminal cases that are called DUI, DWI, Drunk Driving, or other acronyms. Generally describes when driver is sufficiently under the influence or impaired by alcohol, drugs, or a combination of the two, and driver cannot drive safely.

DUI – Driving under the influence. Can reference driving under the influence of alcohol, driving under the influence of drugs, or driving under the influence of a combination of liquor and drugs. DUI is the most widely used acronym for drunk driving cases. The standard for what it means to be under the influence. It is important to contact a DUI Attorney deemed a Specialist by CDLA is the logical choice if dealing with a San Diego DUI charge.

DUI consultation – If arrested in San Diego county, complete this online consultation to get a quick, personal response from DUI Attorney Specialist Rick Mueller.

DUID – Driving under the influence of Drugs. For purposes of DUID, the drugs may be legal or illegal, prescribed or otherwise.

Duress – A San Diego DUI Defense lawyer can request, if prove:  1.  A reasonable person would have feared an immediate threat to his own life, and 2.  That California DUI defendant in fact had that fear.

DWI – Driving while intoxicated, or driving while impaired. Like DUI, DWI can refer to driving while intoxicated or impaired as the result of either drinking alcohol or taking drugs, or both. This is the second most widely used acronym for drunk driving cases. Like DUI, the question of how to define being intoxicated or impaired is at the heart of a drunk driving case in jurisdictions that use DWI. It is critical to consult with a San Diego California lawyer in your area that understands these sophisticated issues.

Enhancements – Those factors that can operate to increase penalties and punishment in a drunk driving, DUI, DWI, or San Diego California driving under the influence case. These enhancements may include driving above a certain speed while DUI, having minors in the car while drunk driving, having a BAC above a certain level (.20%, for example), refusing to take a chemical test after being arrested for DUI, being involved in a traffic accident while DUI or DWI, or having prior convictions for DUI, DWI, or a related drunk driving offense. Criminal defense attorneys seek to avoid enhancements.

Excessive Speed – DUI Enhancement allegation requiring consecutive 60 days custody in San Diego County jail for any person who drives a vehicle 30 or more miles per hour over the speed limit on a freeway, or 20 or more miles per hour over the speed limit on any other street or highway. [California Vehicle Code Section 23582]

Expungement – A DUI expungement is a legal petition usually filed an attorney in a San Diego or California Court to review a DUI-related conviction to determine:

  • If the term of probation was successfully completed & concluded;
  • That all fines, restitution and reimbursement ordered by the court have been paid and everything ordered  by the court was completed in a timely manner;
  • That the petitioner is not now on probation for another offense;and
  • That the petitioner has no new pending cases.
  • The Court then may allow the petitioner to withdraw his or plea or finding of guilt or no contest, and thereafter orders the DUI case dismissed.

Extrapolation – The method of computing BAC at a given time using physical characteristics of the drinker, the quantity of alcohol consumed, the period of time over which alcohol is consumed, and when the alcohol was last consumed.

FatigueLack of enough rest is an alternative reason explaining why a person drove bad or drowsy, got in an accident, or performed poorly on FST’s.

Field Sobriety Test (FST) – Any number of field tests, acrobatics & gymnastics used by law enforcement officers, usually on the roadside, to determine whether a driver is impaired, a basis for an opinion whether one was DUI. Most San Diego California FSTs test balance, coordination and the ability of the driver to divide his or her attention among several tasks as once. Other tests, such as the horizontal gaze nystagmus test, are used to measure a subject’s impairment level.  These subjective tests do not take a number of things into consideration including age, nutrition & fitness.

Felony drunk driving – Under certain circumstances the misdemeanor offense of driving under the influence of alcohol will be treated as a felony, such as when drunk driving results in great bodily harm or death or where the accused has three or more prior San Diego California DUI convictions. (Note that certain related charges, such as “wet reckless” driving may count as a prior DUI conviction for this purpose.)

Fifteen (15) Minute Continuous Observation Requirement for San Diego DUI Breath Testing – A breath sample shall be expired breath which is essentially alveolar in composition. The quantity of the breath sample shall be established by direct volumetric measurement. The breath sample shall be collected only after the subject has been undercontinuous observation for at least fifteen minutes prior to collection of the breath sample, during which time the subject must not have ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten, or smoked. [California Code of Regulation, Title 17, Section 1219.3 Breath Collection]

Fixation – The ability of the eye to focus on one point.

Horizontal Gaze Nystagmus (HGN) – Gaze nystagmus that occurs when the eyes gaze or move to the side along a horizontal plane.

High BAC – Threshold blood alcohol content for which maximum penalties and fines may apply, even on a first offense. In San Diego, California, DUI court may consider a BAC of .15% as a special factor in imposing enhanced sanctions and determining whether to grant probation and may give high BAC heightened consideration in ordering an ignition interlock up to three years. San Diego DUI offenders convicted with high .20% BAC must participate in program for at least nine months (vs. three months).

Ignition Interlock Device – Located inside a vehicle and near the driver’s seat, an ignition interlock device is an in-car alcohol breath screening device that prevents a vehicle from starting if it detects a blood alcohol concentration (BAC) over a preset limit of .01 (i.e., 10 mg of alcohol per 100 ml of blood). The device is connected to the engine’s ignition system. Required for those convicted of a California DUI.

Impairment or Intoxication – Those states that refer to Driving While Intoxicated (DWI) or Driving While Impaired (DWI) usually have definitions that are similar to being under the influence. It is extremely important to contact a drunk driving lawyer in San Diego California if arrested for DUI.

Implied Consent – The requirement of a driver in San Diego to submit to a chemical test (usually blood or the big breath test machine) if suspected of a DUI.  There is no right to speak to an attorney in California before deciding which test to take.  When one drives on San Diego roads, he or she gives his legal consent to a chemical test if arrested for drunk driving.

Interstate Compact Multi-state agreementamong states to exchange driving record data to take similar action, including DMV license suspension actions & San Diego DUI convictions.
License Restriction – A license provisionally allowing someone to drive to and from work, during work and to or from program classes.  Restrictions are only allowed in certain San Diego DUI situations and after certain conditions have been met including but not limited to proof of enrollment in a proper program, filing of SR-22 with DMV, payment of reissue fees and/or installation of ignition interlock device.

License Revocation – A license revocation means your driving privileges have been canceled. You will likely need to reapply for a driver’s license after a designated length of time.

Military Consequences of a San Diego DUI – NJP punishment including reduction in rank, forfeitures of pay, restrictions on liberty, and extra (fatigue-type) duty; Court Martial; Immediate Suspension of all Favorable Personnel Actions (”Flagged”).

Miranda Rights Admonition – Voluntary in California DUI cases and therefore not usually given by police.   Click here to see why.

Motions – Legal proceedings by lawyers asking a San Diego California court to do something. Drunk driving defense lawyers can file motions with the court in defending a driver accused of DUI. Examples of DUI motions  include discovery motions (compelling the prosecuting attorney to provide evidence) or motions to suppress evidence based on illegal cause to stop/detain or a warrantless arrest.

National Highway Traffic Safety Administration (NHTSA) – The agency within the United States Department of Transportation that administers traffic safety programs. NHTSA’s duties include funding studies on field sobriety tests and training law enforcement officers in the administration of the standardized field sobriety test battery.

Natural Nystagmus – Nystagmus that occurs without any apparent physiological, vestibular, or neurological disturbance. Natural nystagmus occurs in approximately 2%-4% of the population.

Necessity – DUI Defense law attorneys can request, if prove:  1. The accused acted in an emergency to prevent a significant bodily harm or evil to himself or somebody else; 2. He had no adequate legal alternative; 3. The defendant’s acts did not create a greater danger than the one avoided; 4. When the defendant acted, he actually believed that the act was necessary to prevent the threatened harm or evil; 5. A reasonable person would also have believed that the act was necessary under the circumstances; and 6. The defendant did not substantially contribute to the emergency.

Not Guilty – The verdict acquitting you in your San Diego California DUI / drunk driving case after your Superb DUI criminal defense lawyer takes the case to jury trial.

Nystagmus – An involuntary bouncing or jerking of the eye caused by any number of vestibular, neurological or physiological disturbances.

Odor of Alcohol on Breath – Recurring symptom in an officer’s report upon arresting a San Diego California DUI for suspected DUI. While alcohol itself has little or no odor, the odor of the flavorings can be deceptive as to the strength or amount consumed.

One-Leg-Stand (OLS) Test – One of the three tests that make up the Standardized Field Sobriety Test Battery. This test requires a subject to stand on one leg, look at his or her foot and count out loud to thirty (or until told to stop). The subject is assessed on the ability to understand and follow instructions, as well as the ability to maintain balance for thirty seconds.

Preliminary Alcohol Screening (PAS) Test – Hand-held, portable DUI breath test gadget used by roadside police in San Diego California to assist in estimating one’s BAC.  Blowing in it is voluntary unless driver is under 21 or on DUI probation. See here to view attorneys’ discussion of its numerous limitations and unreliability.

Passenger Under 14 Years – DUI Enhancement mandating additional San Diego jail time [California Vehicle Code Section 23572]

Per Se Laws – Laws that declare it illegal to drive a vehicle with a blood alcohol level content above a certain alcohol level, as measured by a blood or breath test. In most states, the per se limit is .08% or greater. Violating the per se law has nothing to do with one’s ability to drive a car safely; it is based solely on body chemistry. The only question is whether the driver was above the legal limit at the time of driving. NOTE: Since breath or blood testing always takes place after the time of driving, it does not directly answer the question of BAC at the time of driving. The alcohol level at the time of testing may be higher, lower, or the same, when compared to the time of driving.

Probation – Persons usually on probation for five years after having been convicted of California Vehicle Code Section 23152 may not drive with a measurable amount of alcohol (with a level of 0.01% or greater), without a valid license or without insurance, and must submit to a DUI chemical test upon request of a peace officer. One’s driving privilege will be suspended for one year if BAC is .01% or higher or refusal to take the preliminary alcohol screening (PAS) test.

ProgramInformation about Alcohol Classes in San Diego County.

Public Defender You can only apply for a “public defender” if you show you are unemployed & have no assets.  If you do meet the financial eligibility criteria for a public defender for the Criminal Court side of your DUI case: (a) public defenders do not handle DMV license suspensions with action required within 10 days of DUI arrest; and (b) a court appointed attorney will not be available to discuss your DUI case with you until they have been officially appointed by the Judge no sooner than the date of your first court appearance, or arraignment.

Reasonable Doubt – The definition varies from state to state. Before someone may be found guilty of DUI or DWI, the jury (or judge in those states that do not allow a jury trial for drunk-driving cases) must be convinced in the defendant’s guilt beyond a reasonable doubt. It represents the highest legal standard in our country; it generally requires an abiding conviction (long-lasting belief) of the truth of each and every element of the charges.

Rebuttable Presumption of Reliability of the Test Results – San Diego DUI test results recorded on official forms were obtained by following the regulations and guidelines of CCR Title 17 and therefore are presumptively valid.  Once a defense attorney shows official standards were in any respect not observed, the presumption is rebutted and the burden of proof shifts to DMV to establish the reliability of the test.  If DMV does not then sufficiently meet the shifting of the burden, DMV is required to set aside the suspension action.

RefusalRefusal to submit to testing, triggers consciousness of guilt jury instruction requested by DUI attorney prosecutor in trial.  If convicted, mandatory or additional San Diego County jail and/or 6-9 month alcohol program, as a DUI Enhancement and/or a 1 to 2 year license suspension by DMV. [California Vehicle Code Section 23612/23577]

Reckless Driving – Operating a motor vehicle in a dangerous manner, including but not limited to speeding, risky road manuevers, weaving in and out of traffic, and similarly hazardous driving. Reckless driving is one of several potential grounds for enhanced or increased DUI penalties.

Retrograde Extrapolation – This is the scientific term for the ability to look at an individual’s alcohol level at the time of testing, and look backwards to determine what the alcohol level was at the time of driving in San Diego.

Rising Alcohol Defense – This defense is based on the idea that alcohol levels change over time, as the body absorbs alcohol, reaches a peak level, and then eliminates alcohol. Breath or blood testing is done after driving (sometimes long after); these test results tell us what the alcohol level is at the time of testing, not at the time of driving. The rising alcohol defense is simply that at the time of driving (the critical time in a drunk-driving case), the alcohol level was below the legal limit, even if it continued to rise until the time of testing.

Standardized Field Sobriety Test (SFST) – A set of DUI tests selected as the best field sobriety tests to increase the claim of San Diego area police officers to detect driver impairment.  The tests include the horizontal gaze nystagmus, walk-and-turn and one leg stand tests. The results of this these FST’s, usually administered along the roadside, contribute to a San Diego county officer’s DUI opinion and decision to arrest a person for drunk driving.

Suspension – The temporary withholding of driving privileges. A San Diego California DUI arrestee’s license is taken and then depending on the success of one’s attorney at the APS hearing, suspended or withheld for a given period of 4 months to 3 years.  After that, the driving privileges are restored when and if specific conditions have been met including enrollment/completion of California licensed provider alcohol program, filing of SR-22 proof of insurance certificate,payment of DMV reissue fees and/or installation of ignition interlock device.

Symptoms – Signs including odor of alcohol, slurred speech and red/bloodshot/glassy eyes. California DUI attorneys fairly break down the subjectivity of purported signs which are often caused by non-alcohol sources or other factors.
Tolerance – A theory, as it pertains to DUI, of one’s ability to adapt and maintain their behavior to purportedly disguise the effects of alcohol consumption.

Underage DUI “Zero Tolerance Law – Anyone under 21 years of age with a Blood Alcohol Content (BAC) of 0.01% or greater face a California Vehicle Code Section 23136 charge.  Underage drivers with a BAC of 0.05% or greater face a California Vehicle Code Section 23140 charge.  One’s driving privilege will be suspended for one year if (a) BAC is .01% or higher or (b) refusal to take the preliminary alcohol screening (PAS) test.

Under the Influence – A person is under the influence of intoxicating liquor when as a result of drinking such liquor his (or her) physical and mental abilities are impaired so that he (or she) no longer has the ability to drive a vehicle with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances. It is not necessary for someone to have an alcohol level that is above the legal limit to be under the influence. If a driver provides a reading at or above the legal limit at the time the test was taken, and if the test was given within 3 hours of the time of driving, then the trier of fact may presume or infer the driver is under the influence at time of driving, but such presumption or inference is rebuttable. [California Vehicle Code Sections 23152(b) and 23610(a)(3)] The manner in which the vehicle is driven is relevant, but not usually determinative in and of itself.

Vehicle – A motor vehicle, car, truck, motorcycle. A DUI or drunk driving conviction can result from driving an ATV, a golf cart, a tractor, a snowmobile or a motorized wheelchair, bike or scooter.

Vehicle Impound – If you are driving with a suspended or revoked driver’s license, the vehicle you are driving may be impounded for thirty days and possibly even forfeited.

Voir Dire – Jury selection when a San Diego California lawyer or judge, or both, will question potential jurors about their background and qualifications to sit as jurors in the case. Both the prosecuting attorney and defense lawyer are entitled to fair and unbiased jurors. Voir dire is the process by which the parties learn about the potential jurors, and determine whether or not the DUI case is an appropriate one for the potential juror to participate in.

Walk-and-Turn (WAT) Test – One of the three tests that make up the standardized field sobriety battery. This test requires a person to take nine heel to toe steps down a straight line, turn and take nine heel-to-toe steps back up the line. The subject is assessed on the ability to understand and follow instructions as well as the ability to maintain balance during the instruction stage and walking stage.

Wet Reckless – Plea to a charge of reckless driving, “alcohol-related.” A wet reckless may result from an attorney’s pretrial negotiations and one’s plea bargain to reduce a charge of DUI. There may be a number of complicated reasons for such a reduction, including but not limited to a relatively low BAC, no accident, no prior record, etc. It usually comes with a lower fine, no jail time, no record of a DUI conviction and frequently other advantages. If the person gets a DUI conviction later in life, within the statutory time (now is 10 years), the “wet reckless” will be considered a “prior” DUI or drunk driving conviction, meaning higher penalties and a sentence required for a second DUI conviction.  A wet reckless is important to anyone seeking to have his or her DMV print-out show only a reckless driving conviction.

Witness – A person who testifies on behalf of the prosecuting lawyer or San Diego DUI defense attorney.

DUI Glossary April 17, 2015

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