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If you or a loved one has been arrested for a DUI you will have many questions as to what will happen and what defenses you may have to the dui.  With alist two Decades of experiennce and having both prosecuted and defended DUI cases,  I can help you get through this.  If after reading this blog you still have questions give us a call at 559 441-1418.  We can help you get through this.  Experience and results matter.  

Below I will go through some of the defenses to a DUI case this is not meant to be an exhaustive list and you should definitely seek legal help as soon as possible before the longer you wait before seeking legal counsel the worse things may get for you.  

1.  There could be errors in the DUI breath testing.  There could be maintenence errors or an operator that is not used to using the machine or using it in the right way can cause problems.  Sometimes even gerd or other problems can affect the accuracy of this machine. 

2.  So called mouth alcohol could affect the accuracy of the test. Such as burping or even recent dental work could affect the amount of the breath alcohol and affect accrucy of the instrument.  The key is to prove these things and be able to show to the district attorney of the jurors. 

3. Rising blood alcohol defense  This defense means that your blood alcohol was higher when you took the test than when you were actually driving. 

Alcohol takes a certian amount of time to go into the blood stream.  between 50 minutes and three hours.  to absorb into you system.   For example if you had just finished driking, and were investigated for DUI shortly thereafter your bac may not have reached peak absorption rate.   When this is the case your blood alcohol rate is still rising and may give rise to rising blood alcohol rate.  And an elevated BAC.  This is bacause your bac at the time of the test is irrelevant it is your bac at the time that you were driving which is the relevant factor.  

prosecutors will often overlook this fact when they are prosecuting a DUI.  

4. There are innocent reasons you showed the objective symptoms of DUI  There could be many reasons that you have objective symptoms of a DUI

such as being out late at night having allergies and many other reasons many times we have officers who simply recite in there reports the exact same information as to every case.  We have to make sure there is no innocent explanation for the facts of the case and go into a defense based upon those facts many times the facts stated in the report do not make any sense and should be examined thorroughly.  


Now all of these factors wont necessarily mean that the prosecutor will dismiss the case. It is up to the District Attorneys office what cases they will prosecute and which cases will be dismissed.  Many times with the above factors we will meet with the client and then make a determination as to whether the client wishes to go to trial if the prosecutor refuses to either dismiss the case or reduce the charges.  If you show many mistakes or irrgularites in the stop arrest and gathering of evidence by the police then either the District Attorney can either reduce the charges dismiss the case or refuse to do any of those things ask that you go to trial. This is a determination made after we gather all the evidence and through the discovery process gather all the evidence the prosecutor has. 


If you have quetions call us at 559 441-1418.

Gerald Schwab, Jr.


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Law Office of Gerald Schwab, Jr.
Fresno Criminal Defense Attorney
5588 N Palm Ave,
Fresno, CA 93704 View Map
Phone: 559.441.1418