Contact Us

Send us a quick email


There are  several defenses to California DUI charges as part of the process of assesing whether to take your case to a Jury we always look through the charges and decide if based upon some of the factors below it is advisable to go to trial.  There are actually more defenses to DUI cases, and DUI cases have become more complex over the past 5 or six years.  When consulting an Attorney you should be clear as to whether you want to go to trial to challenge every aspect of the case or whether you want to take a plea agreement with the District Attorney.  Either way it is advisable to hire an Attorney to establish all defenses to your underlying case. 

There is no such thing as an open and shut DUI case.  There are a number o DUI defenses that could result in reduced or even dismissed charges by either the prosecution a Judge or a Jury. 

Some of the Defenses to a charge of DUI are as follows. 

1. California DUI breath test are subject to a wide variety of errors.  These include but are not limited by the following.

malfunction improper handling by the police

DUI breath testing is the most common way of to measure BAC ; however it is not the only way of testing, and is not necessarily accurate.  the DUI breath test does not measure the amount of alcohol in your blood it only measures the amount of alcohol in youur breath which is then converted to measure the amount in your blood stream.  Therfore DUI breath testing is succeptible to several influences that could affect its accuracy. 

Mouth alchol could alter the accuracy of your DUI breath test.  Residual alohol in your mouth could affect the accuracy of the testing.  You suffer from GERD or acide reflux this could defenitely affect the test. 

What is a “Rising Blood Alcohol” and how does that affect your DUI

What Rising Blood Alcohol means is that your BAC was higher at the time you took the test than at the time of driving. 

Alcohol takes a certain amount of time (typically between 50 minutes and three hours) to absorb into your system.  If for example you just had recently finished drinking and wer investigated for DUI shortly thereafter your alcohol may not have reached its peak absorption rate.  When this is the case your blood alcohol is still rising, which can cause a false high DUI BAC result.  

This is becasue your BAC at the time of your blood or breath test is irrelevant what is relevant is what your BAC was at the time of driving.  Just because you have a BAC that is above the legal limit when you submit to a DUI chemical test, does not mean that what your BAC was at the time of driving.  particularly if you were “on the rise”

Prosecutors like to assume that everyone is beyond their peak absorption phase when they submit to California DUI chemical testing, we know, however, that this isn’t the case and that rising blood alcohol is a very legitimate DUI defense.  This defense is applicable to both blood testing and breath testing. 





Gerald Schwab, Jr.


Schedule a Free
Case Evaluation

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