DUI Lawyer | Joel Brand, Esq.

“Drink After Drive” Defense to a DUI

In California DUI cases, the “Drink After Drive” defense is an uncommon but potentially effective strategy. This defense hinges on the claim that the defendant consumed alcohol only after driving but before law enforcement’s arrival or before the administration of the breathalyzer or blood test. By employing this defense, the defendant seeks to challenge the accuracy and timing of the blood alcohol concentration (BAC) results, arguing that they do not reflect the defendant’s BAC at the time of driving. This article delves into the intricacies of the “Drink After Drive” defense, exploring its legal foundation, application, and challenges in California DUI cases.

Legal Foundation of the “Drink After Drive” Defense

The “Drink After Drive” defense is grounded in the requirement that the prosecution must prove the defendant’s impairment or illegal BAC level at the time of driving. According to California Vehicle Code Section 23152, it is unlawful to drive under the influence of alcohol or with a BAC of 0.08% or higher. However, the BAC measurement typically occurs after the defendant has been stopped and arrested, introducing a potential discrepancy between the BAC at the time of driving and the BAC at the time of testing.

Application of the “Drink After Drive” Defense

To effectively use the “Drink After Drive” defense, the defendant must establish several key elements:

  1. Timing of Alcohol Consumption:
    • The defendant must convincingly demonstrate that they consumed alcohol after driving but before the police conducted the BAC test. This often involves providing a credible account of events that includes details about when, where, and how much alcohol was consumed post-driving.
  2. Witness Testimony:
    • Witnesses who can corroborate the defendant’s account of post-driving alcohol consumption can significantly bolster this defense. These witnesses might include friends, family members, or anyone present at the time of the alleged post-driving drinking.
  3. Scientific Evidence:
    • Expert testimony from a forensic toxicologist or another qualified professional can be crucial. These experts can explain the science of alcohol absorption and metabolism, illustrating how the defendant’s BAC could have risen to the measured level after driving.

Challenges and Considerations

While the “Drink After Drive” defense can be compelling, it faces several challenges:

  1. Credibility:
    • The defense hinges on the defendant’s credibility and the plausibility of their account. If the defendant’s story appears contrived or inconsistent, it may be difficult to persuade the court or jury.
  2. Prosecution’s Counterarguments:
    • The prosecution will likely challenge the defense by presenting evidence that suggests the defendant’s BAC was above the legal limit while driving. This might include the timing of the stop, the defendant’s behavior, and any statements made by the defendant at the scene.
  3. Implied Consent Law:
    • Under California’s implied consent law, drivers implicitly agree to submit to chemical testing if suspected of DUI. Refusing to take a test can result in license suspension and may be used against the defendant in court.

Case Law and Precedents

Several California cases have addressed aspects of the “Drink After Drive” defense, providing valuable insights into its application and limitations:

  1. Mercer v. Department of Motor Vehicles (1991):
    • In Mercer, the California Supreme Court ruled that the timing of alcohol consumption is crucial in determining BAC at the time of driving. This case underscores the importance of establishing a timeline that supports the defense’s claims.
  2. People v. Najera (1972):
    • This case highlighted the role of expert testimony in DUI defenses. The court recognized that forensic toxicology could provide essential insights into the effects of alcohol on the human body, including absorption rates and the impact on BAC readings.

Steps to Implement the “Drink After Drive” Defense

To mount an effective “Drink After Drive” defense, a thorough and strategic approach is necessary:

  1. Immediate Legal Counsel:
    • Defendants should seek experienced DUI attorneys who understand the complexities of this defense and have a track record of success in similar cases.
  2. Gather Evidence:
    • Collecting and preserving evidence that supports the defendant’s account is crucial. This includes identifying and securing witnesses, obtaining surveillance footage if available, and documenting the timeline of events.
  3. Engage Experts:
    • Enlisting the help of forensic toxicologists or other experts who can provide scientific evidence to support the defense’s claims is essential. These experts can offer testimony on alcohol absorption, metabolism, and the effects of post-driving consumption on BAC levels.
  4. Prepare for Cross-Examination:
    • Anticipating the prosecution’s arguments and preparing to counter them during cross-examination is vital. This involves rehearsing the defendant’s testimony and ensuring consistency in their account.

Conclusion

The “Drink After Drive” defense offers a nuanced and scientifically grounded strategy for challenging DUI charges in California. While it presents unique challenges, with the right evidence, expert testimony, and legal representation, it can effectively cast doubt on the prosecution’s case and potentially lead to a favorable outcome for the defendant. Understanding the legal foundation, application, and intricacies of this defense is essential for anyone facing DUI charges and considering this approach.

Citations

  1. California Vehicle Code Section 23152
  2. Mercer v. Department of Motor Vehicles, 53 Cal.3d 753 (1991)
  3. People v. Najera, 8 Cal.3d 504 (1972)