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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. 





I have represented clients througout the state of Caifornia.  There are certain defenses which are common between across the counties including Madera County, Fresno County, and Tulare County, and Monterey County. 

Below is a description of the common legal defenses in the state of Calfornia. 

1)  Accidents

2)  Allibi

3) Coerced Confessions

4) Double Jeopardy

5) Duress

6) Entrapment

7) False Accusation / Wrongful Arrest

8)  Insanity

9)  Lack of probable.

10) Mistaken Identity

11) Misatake of Fact

12) Necessity

13) Parents right to discipline childrene

14) Police Misconduct

15) Self Defense/Defense of Others

16) Unconsciousness

17) Vonuntary/Involuntary Intoxication

1) Accidents

If you accidentally commit a crime without ciminal intent then the law does not hold you criminally liabe.  If however, you act in a reckless I don't care attitude the law does not protect you.

2) Alibi

In its most basic form this defense means you could not have committed the crime because you were somewhere else at the time the crime was committed.  We were able to prove this once in a defense which saved our client a term of life in prison.

3) Coerced confession

If the police overcame your free will in an attempt to get a confession.  Then the confession is thrown out as evidence.

example continued questioning after you ask for a lawyer

food water or sleep deprivation

beating you

4) Double Jeopardy

This defense means that under the constitution you cannot be prosecuted a second time for the same offense. 

5) Duress

This defense applies if you only committed a crime because of anothers persons threats toward you

6) Entarpment

You would not have committed the offense excpet due to the harrassment or the coercion of the police

7) False accusation/ wrongful arrest

people often accuse people of crimes they did not commit due to revenge jelousy or attempts to cover up ones own criminal conduct.

8) Insanity

If you could not understand the nature of your act or

could not distinguish rigth from wrong.

9) Lack or Probable Cause

The law requires police to have probable cause before they can detain or arrest you.  proabable cause essentially means that a reasonable and cautious officer would believe that criminal activity is occuring.  

10) Mistaken Identity

This is the leading cause of wrongful conviction. IE the real perpetrator of the offense and you get blamed. 

11) Mistake of Fact

If you act under a reasonable mistake of fact you are not guilty of a crime.

This does not mean that just simply stating that you did not know something was a against the law is not a defense. rather

if you are accused of stealing a  power drill from your neighbor but you reasonably belived that it was your power tool that could be a mistake.

12) Necessity

An example of this defense is that you are being chased by someone and you break into someone elses house when you reasonably believe you must do that to escape the person that is considered necessity.

13) Parents right to discipline a child

Parents have the right to discipline there children, as long as it is done in a reasonable manner.

14) Police Misconduct

Its not at all uncommon to see acts of misconduct, abuse, and excessive force by police this could be

planting evidence

lying or embellishing police reports

15) Self Defense/ Defense of Others

if you injure or kill someoen in the reasonable belief that you must use force your conduct could be excused.

16) Unconsciousness

If you are while you commit a crime California law excuses your actions

this includes acts while



epileptic seizure

involuntarily intoxicated

17) Voluntary or Involuntary Intoxication

Typically voluntary intoxication does not act as a defense to a crime.

However voluntary intoxication could serve as a defense that you could not have formed the specific intent to commit a crime.

involuntary intoxation occurs when someone else gave you the agent that makes you act. 








Many people belive that if they failed there field sobriety test, they are certain to be convicted. 

That question is much more complicated. 

First Field Sobriety test are only one part of the reason you were arrested.

There is the initial stage meaning when you were pulled over. 

This could be at a DUI checkpoint or

Because of bad driving.

An officer needs a valid DUI checkpoint or Reasonable Suspicion that you have violated a law or traffic infraction in order to pull you over.

You leaving a bar at two a.m. is not reasonable suspicion.  It could even be argued that puting on your blinker accidentally when no one is around to be affected by that mistake is not reasonable suspicion.


Then the offcer will usually state he smelled the odor of alcohol eminating from your breath. ( I have never seen a police report without this language) and then he has you perfrom FST's.  

The FST's as you might have guessed can be difficult for people who are completely sober. 

Currently more and more officers have dash cam vidoes called MVERs and body cam videos we either get these from the District Attorney as part of our investigation or we will serve a subpeana to get the vidoes ourselves.  What is on the vidoes is important. Such as does what the officer wrote in the report actually happen on the video?

It will certainly hurt the credibility of the officer if he stated in his report that you were doing very poorly on FST's and that is not indicated on the vidoe.

If you have further questions please give us a call to discuss your options.

A Felony Domestic Violence charge Penal Code section 273.5 is a serious charge which could affect your right to own or possess a firearm. It can even affect your parental rights and visitation orders. 

First your right to own or possess a firearm.  Unlike the Misdameanor conviction of Domestic Battery IE 243 E1 which carries a consequence of a 10 year gun ban, if you are convicted of A Felony charge of 273.5 you will lost your right to own or possess a firearm in California permanently.  You will be a convicted Felon and therefore will not have right to own or possess a Firearm, unless or until the charge is either reduced to a Misdameanor per Penal Code section 17B or pled as a misdameanor, more on that later. 


First what are the elements of the charge of 273.5 that the prosecution must prove in order for you to be convicted under 273.5. 

1. Defendant willfully inflicted corporal injury on victim.

2. Victim was either

Defendant's spouse or former spouse

A person with whom her or she was cohabitation with.

Fiance or Fiancee or someone whith whom the offender has, previously had, an engagement or dating relationship.

The mother of father of his or her child

the corporal injury resulted in a traumatic condition


what are the defenses to this charge

False Accusation

The incident did not happen in the way the complaining witness is saying it happened.

The incident was really a Misdameanor and did not involve traumatic injury

This is that many times gets overlooked by some Attorneys there clients would be more than willing to accept a Misdameanor rather than a Felony yet the Attorney never argues this to the District Attorney or the Court. 

Either the court or the District Attorney has the power to reduce under Penal Code section 17B. 


No Priors

This is an effective defense in the case of Domestic Violence because under Penal Code section 1101 B prior evidence of domestic violence can be brought in the prosecutions case in chief.  Therefore is you have no prior convictions this works in your favor because the District Attorney knows they cannot bolster a weak case with prior offenses. 

There are several other defenses available and this is not meant to be a complete list.  I have handles close to 100 hundred domestic violence cases call us to schedule an appointment.




under Calfifornia Penal Code section 1203.4 provides that once an individuals criminal record is expunged the person is released from "all penalties and disablilities arising out of that conviction"


In many circumstances a criminal conviction can be expunged from your record under 1203.4 and in some circumstances you may even get your probation terminated early the court has the authority to do so under Penal Code section 1203.3.   I have had this occur on several occassion. 

You may even be able to get your Felony Coniction reduced to a Misdameanor, and then expunged under 1203.4 at the same time.  The crime must be what is commonly referred to as a wobbler in order for you to have relief under Penal Code Section 17B.

I will look at some of the frequently asked questions regarding expungements.  

Who is eligible to get a a Calfornia Expungement.  Generally you are entitled to an expungement in the following circumstances it should be noted that these general rules are discretionary, meaning up to the judgement of the court.

1. You successfully completed probation or were terminated early from probation by order of the court.

2. Attended all required court appearances

3.  did not commit any new offenses.

4. Your are not currently on Probation or Parole for another offense.


You must file the proper paperwork with the court usually at least 15 days before the hearing. 


What an expungement will do for you

For private employment your employer cannot discriminate against you for your conviction once the conviction is expunged.

Your employer cannot inquire about the fact you suffered a Misdameanor conviction.

Once an expungement has been obtained your character cannot be impeached with the conviction, unless you are the defendant testifying on your own behalf. 


An expungement will not

End your duty to register as a sex offender.

Restore Firearm rights

Completely destroy the records.  This can only be done through a sealing of records or destruction of records, which is a completely different code section with completely different rules.


As a General Rule you can only get your records destroyed if there was an arrest with no charges filed.

or a finding of factual innocense 851. 8 which requires a  hearing.

In Juvenile Court for non 707 B offenses unde new California Laws much of Juvenile Records are reviewed after two years for possible destruction. 

You must if you are applying for a Peace Officer position or other position requirieng licenseing by the State of California admit to and disclose criminal convictions that resulted in expungement. 

You cannot expunge a conviction if you were sent to state prision.  The proper way to proceed in this circumstance would be a certificate of rehabilitation. 


What must I do to obtain an Expungement?

First we review your criminal history to make sure you are eligible.

Than we fill out the Motion and set a court date.

We attend the court date and have an order ready for the Judge to sign.


What happens after the court date?

The Judicial staff will send the Order signed by the Judge to the Department of Justice where they will do what is called an update on your criminal history commonly referred to as a RAP sheet.  it should be noted RAP sheets are not public record if  someone does a live scan it will show the conviction; however it wil also show the expungement.

If you have any questions do not hesitate to call I have helped over One hundred people obtain expungements in four different counties I can get you through this.

The answer to that question is yes.  This can occur in several different ways.

One the blood or breath test analyis that you took came back as well below the legal limit.  


Also many times DUI motions can be filed they are typically of two kinds.

1. a motion to suppress.  A motion to suppress is typically done to suppress illegally obtained evidence.  And this motion is usually done when the defense attorney believes the stop was illegal.  To pull over a car there must be reasonable suspicion some law or traffice violation has occurred.  If the officer states in his report that you were crossing the line or driving erratically and video of the incident does not show those things.  Your Attorney could move to have the evidence gathered by the police suppressed as flowing from the illegal stop.

2. An ingersoll motion.  This motion is run to challenge the legality of a DUI check point.  There is a laundry list of things which must be done to properly conduct a DUI check point.  If these things are not done and you were arrested at a DUI check point you can move to have the arrest suppressed. 


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Gerald Schwab, Jr.


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Fresno Criminal Defense Attorney
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