Prosecution Approach

Prosecution Approach in DUI Cases: What You Should Know

Law Enforcement and the prosecutors have different roles to play in the criminal justice system. The police officer is responsible for enforcing the laws of the state, and arresting those that they believe violated one or more laws.  The officer is responsible for arresting the individual and then to write a report that specifies the reason he/she contacted the individual, and the logical steps taken from first observation of the defendant, to placing him/.her under arrest.  For a police officer, they just need to have probable cause to believe a crime occurred and the arrested person did it.  

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After the person is arrested, the police reports are reviewed by a filing deputy (person in the District Attorney’s Office or City Attorney’s Office) who will review the case, and determine whether or not a crime has been committed.  For a prosecutor, they are supposed to only file charges if they believe the evidence will prove each element of the crime beyond a reasonable doubt.  This is a very high standard, so the prosecutor may reject some suggested charges, if the prosecutor does not feel that there is enough evidence to prove the charge beyond a reasonable doubt, the prosecutor may send the case back to the arresting agency and suggest they conduct additional investigation.  The prosecutor will also determine what charges to file, and whether they are a felony or a misdemeanor. 

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A prosecutor’s goal in DUI cases is to secure convictions that carry significant consequences such as fines, license suspension, jail time, and more, but it is also a priorable offense, meaning that if the person is arrested for another DUI within 10 years, the DUI Punishment may increase. Having an understanding of the prosecution strategy can help defendants and their legal teams build a strong defense case. Below is a breakdown of how prosecutors typically approach DUI cases in California.

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Driving: Did the accused cause the vehicle to move?

The first element required to be proven for a DUI in California is that the accused was driving a motor vehicle.  The Courts define driving as, “the volitional movement of a vehicle,” and they have clarified that the movement can be slight.  Other states have a physical control law, but they do not require that the vehicle be driven. For example, in a physical control state, it may be enough for the driver to be seated in the driver’s seat and have the keys in his pocket.  In California that is not enough.  There are exceptions to the “volitional movement” requirement, such as the driver being involved in an accident, or the vehicle blocking a lane of travel.  These seem obvious, since the driver who had been in an accident must have driven.  In contrast, if the driver is seated in the driver’s seat of a vehicle legally parked, and he has the driver’s seat fully reclined and he is sleeping, he should not be arrested for a DUI, since he did not drive in front of the officer and his vehicle being legally parked and not blocking a lane of travel, the officer has no probable cause to arrest him for driving under the influence, but that is not to say that the driver will not be arrested.  

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Establishing Impairment: Blood Alcohol Concentration (BAC)

One of the prosecution’s primary goals is to establish that the defendant was driving under the influence of alcohol or drugs. An important piece of evidence they heavily rely on is the Blood Alcohol Concentration (BAC). In California, it’s illegal to drive with: 0.08% or higher for most drivers. 0.04% or higher for commercial drivers or Uber or Lyft drivers; 0.01% or higher for drivers under 21.  You should understand that if your blood alcohol. Level is 0.08 or higher, the prosecutor does not have to prove that you were impaired by the alcohol.  The jurors will be told that if the prosecutor has proven that the driver was driving and at the time of driving had a blood alcohol level of 0.08 or higher, you must find him guilty of the charge.  

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Alternatively, the prosecutor can also prove a driver was impaired by alcohol and/or drugs even if the BAC is below the legal limit, or the blood alcohol level was never obtained.  In order to prove this charge, the prosecutor must prove (generally by circumstantial evidence), that the driver “was unable to drive with the same care and concern as a sober driver.” This is vague, but the prosecutor will generally prove this case with circumstantial evidence such as: how was the person driving, how did they respond to the officer when the officer turned on the lights and siren; how did the driver provide the registration and insurance; what were the objective signs of intoxication, objective symptoms  (red/watery eyes; slurred speech, odor of alcoholic beverage; unsteady gait, etc.); how did they perform on the field sobriety tests, and any chemical test results.  The jury would have to determine if there was sufficient evidence to prove the driver was impaired when they were driving.  

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Physical Evidence and Field Sobriety Tests

The prosecutor will make a filing decision based on the police reports alone generally.  The filing deputy assumes that everything in the police report is accurate and that the officer would testify to what is written in the report.  The arresting officer’s description of performance on Field sobriety tests will play a key role in the filing deputies’ mind when deciding whether or not to file charges. These tests, such as walking in a straight line or balancing on one leg, provide evidence of impairment based on the officer’s observations of the driver’s movements or failure to follow instructions.  Though there are no “pass/fail” results, the officer will state the particular performance was consistent with someone who is under the influence or impaired by drugs or alcohol based on the totality of the circumstances.

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The prosecution may also use video footage from the officer’s dashboard or body camera, highlighting signs of intoxication such as slurred speech, bloodshot eyes, the smell of alcohol, and erratic driving behaviors like weaving or speeding.

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Law Enforcement Testimony

The prosecution will rely on law enforcement’s testimony to describe the reason for the stop, the defendant’s behavior, and the results of sobriety tests. If the testimony supports the claim that the defendant was impaired, it will significantly strengthen the prosecution’s case. The officer’s observations, especially when aligned with other evidence like breathalyzer or blood test results, may persuade the jury that the defendant was unable to safely operate the vehicle, leading to a higher likelihood of conviction.  It is important to note that jurors are told to judge each witness the same, but some jurors believe that officers are more truthful.

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The National Highway Traffic Safety Administration (NHTSA) provides law enforcement agencies with guidelines to detect impaired drivers. Their guide, The Visual Detection of DWI Motorists, lists 24 driving cues that may indicate impairment, categorized into four areas: lane position, speed and braking, vigilance, and judgment. Common examples include weaving, swerving, stopping erratically, and following too closely. While these cues are used to identify impaired drivers, it’s important to remember that sober drivers may also exhibit these behaviors. If pulled over, the officer must have probable cause, and your DUI lawyer can challenge whether this existed to potentially reduce or dismiss charges.

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Challenging the Defense’s Arguments

Prosecutors will be ready to challenge the defense strategies that bring doubt on the validity of the evidence. They may counter by emphasizing the officer's training and experience in administering Field Sobriety Tests, the consistency of the suspect’s behavior with signs of intoxication, and the reliability of video evidence. Additionally, they might argue that any irregularities in the tests or procedures do not negate the overall evidence of impairment.  They may also imply that the officers are arresting people for DUIs to protect the rest of society.

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Use of Prior Convictions and Aggravating Factors

If there are any prior DUI convictions, the prosecuting team will bring it up as well as any other details related to the crime to seek harsher penalties for repeat offenders. Aggravating factors, such as high blood alcohol concentration (BAC), causing injury or death, or having minors in the vehicle, will justify more severe consequences. Prosecutors will highlight these details to argue for stronger penalties from the court, including longer license suspensions, higher fines, mandatory alcohol education programs, and extended jail time. 

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Drug-Related DUIs

 In drug-related DUI cases, prosecutors prefer to rely on Drug Recognition Experts (DREs) to testify about indicators of impairment, supported by chemical test results. The prosecution must prove the defendant was impaired by drugs and therefore unable to drive with the same care and concern as a sober driver.  The legislature has not yet set a particular concentration of each drug as conclusively indicating impairment.  

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Plea Bargains

In some cases, especially for first-time offenders with no aggravating factors, the prosecution may offer a Plea Bargaining in DUI. A common offer is to plead guilty to a lesser charge, such as “wet reckless”, which involves less severe DUI penalties than a full DUI conviction. However, the prosecution typically reserves this option for cases where their evidence may be weaker or where the defendant shows willingness to accept responsibility.  Some prosecutors offices have policies forbidding them from offering a wet reckless on a DUI case.  

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Chemical Tests and Refusal

California's implied consent law requires drivers lawfully arrested for DUI to submit to a chemical test (breath or blood) to measure Blood Alcohol Content (BAC). Refusing to take the test can result in penalties, including a one-year or longer license suspension, additional jail time, and extended DUI school requirements. Law enforcement has to inform drivers of these consequences prior to them deciding which test they will submit to.  If, knowing their license will be suspended or revoked for an entire year at least, they still choose to refuse to take a chemical test, the arresting officer, may ask a judge to sign a warrant authorizing the officer to remove blood from the driver.  Some agencies will physically restrain the driver to obtain a blood sample.  

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Summary:

Hiring an experienced DUI attorney is crucial when fighting DUI charges or any other criminal offenses.. Attorneys can challenge various aspects of the case, such as the legality of the traffic stop, the accuracy of field sobriety test results, or potential flaws in the chemical testing process. A skilled attorney can identify weaknesses in the prosecution’s case and help reduce or dismiss charges.