DUI Glossary Terms

Commonly heard attorney language pertaining to San Diego DUI circumstances:

Absolutely Not Guilty – What The San Diego County DUI Law Center strives for.

Absorption – Process of alcohol entering the blood.  An “absorptive” phase consists of the extensive period during which time alcohol continues to enter into one’s bloodstream after drinking.  Peak absorption is the highest level of blood alcohol content (BAC) absorbed that has risen to when in one’s bloodstream (and just before BAC begins to decrease.)

Administrative Action – San Diego DMV’s administrative per se (APS) license suspension action against a driver after a DUI.  An attorney has only 10 calendar days to request an APS hearing to challenge the DMV’s attempt to suspend one’s driving privileges. This DMV APS action is different from San Diego court criminal proceedings.

Acetone – Organic compound which could be part of one’s breath and which is frequently incorrectly interpreted as “alcohol” by San Diego Police Department’s DUI Intoxilyzer machine or San Diego Sheriff’s Department’s DUI Intoximeter machine.

Alcohol – The central nervous system depressant known as “ethanol” with various side effects. The quantity and facts relating to consumption contribute in determining an extent of intoxication.  Drinking alcohol subsequent to a big meal makes alcohol absorb slower.

Arraignment – Court date given when you get out of jail. This initial San Diego county court date is where a DUI criminal defense lawyer enters a not guilty plea and the case is continued allowing the attorney to thereafter conduct discovery proceedings.

Attacking and Defending Drunk Driving Tests Best DUI Book for lawyers dealing with all facets: voir dire, cross-examination questions, and science to fairly level the playing field for someone accused of a DUI.  By Don Bartell, Mary McMurray and Anne ImObersteg.

Attorney – A Hired Gun who can protect your rights, save your license and preserve your liberties.

BAC – Blood Alcohol Content.

BAC .15% or > DUI – Level which allows San Diego DUI Judge to enhance terms & conditions of probation including but not limited to possible Jail, Impound, considerable Public Work Service Program, Ignition Interlock Device, Elevated Fines and License Penalties. [California Vehicle Code § 23578]

BAC .20% or higher – Level requiring completion of minimum 9 month alcohol program for probationers convicted of first San Diego DUI offense. [Vehicle Code § 23538(b)2]

Black-and-White Fever – The police-driven phenomenon originating from a typical reaction of typical drivers followed by a marked police car often painted “black and white”.  Driver notices a cop car coming towards driver.  Naturally apprehensive, driver focuses on police car in the rear view mirror.  Ensuing stress on driver causes focus on pure driving to be distracted.  Driver more and more looks in mirror rather than the road.  As driver moves eyes, vehicle may drift.  Driver tries to correct travel of vehicle back to center of lane. Such persistence of officer itself generates probable cause for a DUI stop due to possible cop-caused weaving, erratic driving, or speed fluctuations obviously created by tension of making driver’s foot lift up & push down on the accelerator.

Blood Test DefensesPossible defenses to Blood Tests reasonably advanced by attorneys.

Breath Test DefensesDefenses which may be presented by San Diego lawyers.

Breathalyzer – Breath test machine used to estimate BAC of a person tested after San Diego DUI arrest.  Machines usually seen in San Diego County are Intoximeter’s EC/IR or CMI’s Intoxilyzer.  This test is susceptible to multiple attacks of credibility by attorneys.  Administration, operation and maintenance are further subject to inquiry.

Burn-off – Person’s body metabolizes alcohol, eliminates it from one’s system through the vital organs’ functioning. One’s rate of burn-off varies from person to person.  Burn-off can be different for the same person depending on a number of variables. Due to burn-off differences, a prosecuting lawyer’s theory of retrograde extrapolation is quite speculative.  Burn-off is part of why breath numbers lack certainty as the numbers only estimate one’s possible BAC.

California Drunk Driving Law – The most comprehensive reference book for California DUI law.  Known as the “Bible of Drunk Driving Defense”, it is regularly referred to by both judges and lawyers.

California DUI Lawyers Association “Specialist” – A Specialist member of California DUI Lawyers Association (CDLA) is the highest DUI lawyer. CDLA, as a DUI / Drunk Driving Defense Bar Association, has been around the country the longest .So many lawyers claim to be specialists; yet there are only a small handful CDLA “Specialist” Lawyers in San Diego County.

Checkpoints – Police get big money grants to set up DUI checkpoints, using cleverly placed cones, expedient signs and undeniable force.  This interactive map shows locations in San Diego and other parts of California.  Many are unconstitutional so contact a lawyer to find out.

Chemical Test –  DUI test for alcohol or drug concentration in a person’s blood.  San Diego breath tests are chemical tests for Implied Consent purposes. Blood or urine tests, if drugs are suspected, can also be required.

Comatose – Experts say most San Diego people are comatose with a BAC of 0.35% and certainly with a BAC of 0.40%.

Community Caretaker – For there to be a legal and proper detention based on community caretaker exception to the rule requiring warrants before making an arrest, the San Diego officer should establish a substantial risk to life or the possibility of major property damage.

Consequences – San Diego DUI penalties if convicted in court or suspended at DMV.

Court LocationsCourt Information for entire county of San Diego.  Location depends on where arrest took place.

DMV Deadline – Your attorney has to request a hearing at San Diego DMV only 10 days after a DUI arrest in order to stop/stay suspension of driving privileges.

Discovery –  Evidence.  The State’s documents are the arrest report, DUI test record and DS 367 (sworn Officer’s Statement).  The State has the burden of proof so the state must provide to the attorney. Drivers jumping the gun to schedule DMV hearings without a lawyer sometimes unknowingly forget to ask for “Discovery.”

Driving – Actual act of operating a moving vehicle. San Diego area police do not need to see someone actually driving in order to arrest him or her for DUI but that does not mean the person will be convicted.  Circumstantial evidence of driving is occasionally establishes this element.  Volitional movement of the vehicle must be shown.

Drunk Driving –  San Diego criminal cases known as DUI, DWI or Drunk Driving.  Often refers to when a driver is shown to be under the influence – impaired by alcohol, drugs, or a combination of the two, and when the driver did not drive safely.

DUI – “Driving under the influence.” Pertains to driving while under the influence of alcohol, driving under the influence of drugs, or driving under the influence of a combination of liquor and drugs. DUI is the most widely used acronym for drunk driving cases. The standard for what it means to be under the influence.  A lawyer considered a Specialist by CDLA can best defend a San Diego DUI charge.

Duress – A San Diego DUI lawyer jury instruction based on some evidence that:  A.  A reasonable person would have feared an immediate threat to his own life, and B. That California DUI defendant in fact had that fear.

DWI – Driving while intoxicated, or driving while impaired.  DWI often pertains to driving while intoxicated or impaired as the result of either drinking alcohol or taking drugs, or both.  Like DUI, the question of how to define being intoxicated or impaired is at the heart of a drunk driving case.

Enhancements – Critical circumstances which enhance penalties or increase punishment in DUI case. Enhancements include driving excessively in connection with a DUI, minors in vehicle, BAC of .15% or .20%, refusal to submit to a blood or breath test upon arrest, traffic accident, or prior conviction for DUI on record. Lawyers always try to minimize enhancements.

Excessive Speed Enhancement – Statute imposes mandatory consecutive 60 days custody in San Diego County jail for any person proven to have driven 30 or more miles per hour over the speed limit on a freeway, or 20 or more miles per hour over the speed limit on any other road. [Vehicle Code § 23582]

Expungement –  DUI dismissal following a petition filed by lawyer in a San Diego Superior Court to expunge a DUI-related conviction:

  • Term (period) of probation must be successfully terminated;
  • Fines & fees must be paid in full and everything ordered by the court must be completed;
  • Person is not currently on probation for any other conviction; and
  • Person is not facing any new pending case.
  • San Diego Court then usually permits petitioner to withdraw plea or finding of guilt or no contest, and orders case dismissed.

Extrapolation – Tenuous method of guessing BAC at a certain time purportedly based on physical characteristics of the drinker, quantity of alcohol drank, period of time alcohol was drank, and when alcohol was last drank.

Fatigue – Lack of enough rest or being tired as a reason or cause explaining how or why a person drove poorly or drowsy, involved in an accident, or did not do so satisfactorily on field sobriety tests.

Field Sobriety Test (FST) – A field test or acrobatic exercise overused by officers, on the roadside, to try to assist with a determination of whether a driver is impaired.  Used in connection with cop’s opinion if a person is DUI or not. San Diego California FST’s often try to test balance, coordination and the ability of the driver to divide his or her attention among several tasks as once.  None of these tests are offered when the driver applied for a license in California. Others, such as the horizontal gaze nystagmus test, are used to test for presence of alcohol but cannot truly measure a subject’s impairment level.  The tests are pretty subjective and do not take into consider a performer’s age, nutrition and fitness.

Felony DUI – When the offense of DUI or driving under the influence of alcohol and/or drugs is prosecuted a felony, such as when a San Diego drunk driving offense causes great bodily harm or death or where defendant has 3 or more prior DUI convictions. (Alcohol-related charges e.g. VC 23103 per 23103.5 aka “wet reckless” driving conviction counts as a prior San Diego DUI conviction for this purposes of counting priors.)

Fifteen (15) Minute Continuous Observation Requirement for San Diego DUI Breath Testing – A breath sample shall be expired breath which is essentially alveolar in composition. The quantity of the breath sample shall be established by direct volumetric measurement. The breath sample shall be collected only after the subject has been under continuous observation for at least fifteen minutes prior to collection of the breath sample, during which time the subject must not have ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten, or smoked. [as required by the California Code of Regulation, Title 17, § 1219.3]

Fixation – Ability of eye to focus on 1 point.

Horizontal Gaze Nystagmus (HGN) – Nystagmus occurring when eyes gaze or move to the side along a horizontal level.

High BAC – Threshold blood alcohol content for which maximum penalties and fines may apply, even on a first offense. In San Diego, California, DUI court may consider a BAC of .15% as a special factor in imposing enhanced sanctions and determining whether to grant probation and may give high BAC heightened consideration in ordering an ignition interlock up to three years. San Diego DUI offenders convicted with high .20% BAC must participate in program for at least nine months (vs. three months).

Ignition Interlock Device (“IID”) – Installed inside a vehicle and near the driver’s seat, an ignition interlock device is an in-car alcohol breath screening device which stops a vehicle from starting upon detecting BAC of a preset limit of .01 (i.e., 10 mg of alcohol per 100 ml of blood).  Connected to the engine’s ignition system.  Required for those convicted of a San Diego DUI.

Impairment or Intoxication – That condition or state the Prosecutor will always you claim the Driver was in.  Also, those states that refer to Driving While Intoxicated (DWI) or Driving While Impaired (DWI) usually have definitions that are similar to being under the influence. It is extremely important to contact a drunk driving lawyer in San Diego California if arrested for DUI.

Implied Consent – San Diego drivers are required to complete a chemical test (typically blood or breath test) upon arrest for a DUI.  No right to first talk to a lawyer in California before taking test or deciding which one to do.  Upon driving on San Diego roads, drivers impliedly give their legal consent to submit to a chemical test if suspected of drunk driving.

Interstate Compact – Multi-state agreement among states to honor & reciprocate driving record data and comparable actions, including San Diego DUI convictions & DMV license suspensions.

License Restriction – A license provisionally allowing someone to drive to and from work, during work and to or from program classes in San Diego and elsewhere.  Restrictions are only allowed in certain DMV situations and after certain conditions have been met including but not limited to proof of enrollment in a proper program, filing of SR-22 with DMV, payment of reissue fees and/or installation of ignition interlock device.

License Revocation – Driving privileges canceled.  One probably will have to reapply for a driver’s license after a certain period.

Military Consequences of a San Diego DUI – NJP punishment including reduction in rank, forfeitures of pay, restrictions on liberty, and extra (fatigue-type) duty; Court Martial; Immediate Suspension of all Favorable Personnel Actions (”Flagged”).

Miranda Rights Admonition – Voluntary in California DUI cases and therefore not usually given by police.   Click here to see why.

Motions – Legal papers filed by DUI criminal defense attorneys making various legal maneuvers, prayers or demands in a San Diego California Superior Court or at DMV. Motions can be filed by lawyers for a driver accused of DUI. Illustrations of DUI motions are motions to suppress evidence based on illegal cause to stop/detain or a warrantless arrest, or discovery motions (compelling prosecuting lawyer to come forward with certain evidence).

National Highway Traffic Safety Administration (NHTSA) – The agency within the United States Department of Transportation that administers traffic safety programs. NHTSA’s duties include funding studies on field sobriety tests and training law enforcement officers in the administration of the standardized field sobriety test battery.

Natural Nystagmus – Nystagmus that occurs without any apparent physiological, vestibular, or neurological disturbance. Natural nystagmus occurs in approximately 2%-4% of the population.

Necessity – San Diego DUI Defense Lawyers may request, if facts establish:  1. The accused acted in an emergency to prevent a significant bodily harm or evil to himself or somebody else; 2. He had no adequate legal alternative; 3. The defendant’s acts did not create a greater danger than the one avoided; 4. When the defendant acted, he actually believed that the act was necessary to prevent the threatened harm or evil; 5. A reasonable person would also have believed that the act was necessary under the circumstances; and 6. The defendant did not substantially contribute to the emergency.

Nystagmus – An involuntary jerking or bouncing of eye because of any of various vestibular, neurological or physiological disturbances or reactions.

Odor of Alcohol on Breath – It’s not against the law to drink & drive.  Odor is the most common, initial symptom leading to a San Diego DUI arrest, but that does not mean the person is under the influence of alcohol or over the limit.  Because alcohol really possesses no odor itself, the odor of a drink’s ingredients causes the smell.

One-Leg-Stand (OLS) Test – 1 of 3 standard tests known as part of the Standardized Field Sobriety Test Battery. The subject is asked to stand on just 1 leg, look at his or her foot, count loudly to 30 (or until instructed to cease counting). Assessment hinges on an ability to understand, to follow instructions and to maintain balance for 30 seconds.

Preliminary Alcohol Screening (PAS) Test – Portable, handheld breath test gadget police ask suspects to blow into in order to assist in estimating one’s BAC during a San Diego DUI investigation.  Voluntary (optional) test unless person is less than 21 years of age or on California DUI probation.  Visit here for lawyers’ explanation of its unreliability and inaccuracy.

Passenger Under 14 Years – DUI Enhancement imposing additional San Diego county custody. [Vehicle Code § 23572]

Per Se Laws – Laws making it unlawful to drive a motor vehicle with a BAC level at or above a threshold alcohol level, as measured by a blood or breath test. In every state, the per se limit is presently .08% or greater. Violating the per se law has nothing to do with whether a person is under the influence or a person’s ability to drive a car properly. Germane issue is whether the driver was at or above the legal limit at the time of driving. Because blood & breath testing happens after time of driving, the number does not resolve the true issue of one’s BAC at the time of driving.  A BAC number at time of testing may be more or less than true BAC at time of driving.

Probation – Probationers typically must abide by terms and conditions for 5 years after a conviction for DUI –  California Vehicle Code Section 23152:  not drive with a measurable amount of alcohol (with a level of 0.01% or greater), without a valid license or without insurance, and must submit to a DUI chemical test upon request of a peace officer.  Driving privilege suspended for 1 year if BAC is .01% or higher or refusal to take the preliminary alcohol screening (PAS) test.

Program Information re: Alcohol Courses throughout San Diego County, for license restriction and/or court.

Public Defender –  A “public defender” is a San Diego county employed lawyer. If accused proves unemployed & has no assets, application may be made. If accused does qualify per financial eligibility criteria, attorney is assigned for the Criminal Court side of your DUI case, but: (1) Public defenders do not appear in DMV suspension actions or help with the 10 day deadline.  (2) Such a court appointed lawyer is usually not available to examine a DUI case until officially permitted by a Court no earlier than date of arraignment or first court appearance.

Reasonable Doubt – Before you can be found guilty of DUI, the jury must be convinced of guilt beyond a reasonable doubt. This is the highest legal standard in San Diego California and the USA.  The level means an abiding conviction of the truth of each element of the DUI charges.

Rebuttable Presumption of Reliability of Test – DUI test results recorded on official San Diego forms obtained by following the regulations and guidelines of CCR Title 17 are therefore presumptively valid.  Of course, if and when a DMV lawyer provides evidence that official standards were in any respect not observed, the presumption is rebutted and the burden of proof shifts to DMV to establish the reliability of the test.  If DMV does not then sufficiently meet the shifting of the burden, DMV must take no action in .08% suspension cases.

Refusal – Refusal to complete a test. It triggers a damaging consciousness of guilt jury instruction at trial.  If convicted, mandatory San Diego jail and/or extended alcohol program, as a DUI Enhancement and/or a one to two year license suspension by DMV. [Vehicle Code § 23612/23577]  Start by having attorney examine boxes checked at top of pink order of suspension served upon DUI arrest.

Reckless Driving – Operating a vehicle in a reckless or dangerous manner.  Often involves hazardous driving, weaving, speeding, unusual maneuvers or other observations. It may be a basis for increased or enhanced DUI punishment.

Retrograde Extrapolation – Fancy DUI term for claim to guess one’s BAC level at time of testing, by going backwards to determine what BAC level was at time of San Diego driving.

Rising Blood Alcohol Level – A potential defense arising due to the notion that alcohol BAC levels constantly change over time.  One’s body absorbs alcohol, then reaches a peak level, and then eliminates alcohol. Testing is done after driving, indicating what BAC level may be at time of testing, not at time of driving. A rising alcohol defense is often premised on the fact that at the time of driving (the critical time in a San Diego DUI prosecution), one’s BAC level was actually below the legal limit, even if the BAC level continued to rise until time of the test.

Standardized Field Sobriety Test (SFST) – Set of DUI tests used by San Diego DUI cops.  Supposedly the best field sobriety tests to support an opinion of any driver impairment.  The big three are horizontal gaze nystagmus, walk-and-turn and one leg stand tests. Results of FST’s, typically done roadside, are used in cop’s decision to make a DUI arrest.

Survey – Upon arrest in San Diego area, online Survey filled out for fast evaluation & personal emailed response & proposal from DUI Attorney Specialist.

Suspension – DMV’s withholding of driving privileges after San Diego DUI suspect’s license is taken.  Attorney appears at the APS hearing to try to avoid.  Period suspended ranges from 4 months to 3 years. Then privileges are restored if and when strict conditions met including alcohol program, SR-22, remittance of DMV reissue fees and/or installation of IID.

Symptoms – Purported signs – odor of alcohol, slurred speech and red/bloodshot/glassy eyes.  San Diego DUI lawyers break down the subjectivity of symptoms frequently resulting from non-alcohol sources or other factors.

Tolerance – San Diego DUI Attorney Prosecutor’s theory of one’s ability to adapt or maintain her or his behavior to disguise effects of alcohol.

Underage DUI “Zero Tolerance Law” – Anyone in San Diego less than twenty-one years of age with BAC of 0.01% or more charged with California Vehicle Code Section 23136 offense.  Underage drivers with BAC of 0.05% or more charged with California Vehicle Code Section 23140 offense.  Driving privilege suspended for one year if DMV properly establishes issues including: (a) BAC is .01% or higher or (b) refusal to take the preliminary alcohol screening (PAS) test.

Under Influence – Under the influence of intoxicating liquor happens when the drinking of alcohol affects one’s physical and mental abilities such as to impair, meaning one no longer has ability to drive a vehicle with caution characteristic of a sober person of ordinary prudence under the same or similar circumstances.  Accused need not have BAC level of .08% to allegedly be under the influence. If a driver provides a reading at legal limit at time the test was taken, and if the test was given within 3 hours of the time of driving, then trier of fact may presume or infer the driver is under the influence at time of driving, but such presumption or inference is rebuttable. [California Vehicle Code § § 23152(b) and 23610(a)(3)] The manner in which vehicle is driven can be relevant, but not necessarily determinative.

Vehicle – Motorized vehicle, car, truck, motorcycle. DUI conviction may happen upon driving an ATV, a golf cart, a tractor, a snowmobile, motorized scooter, motorized wheelchair or motorized bike.

Vehicle Impound – If caught driving on suspended license, vehicle may be impounded for 30 days and even forfeited.

Voir Dire – Jury selection involving San Diego attorneys or judge, or both, questioning possible jurors regarding background and qualifications to sit as jurors. Both prosecutor and defense attorney entitled to fair and unbiased jurors. Voir dire is process to learn and determine whether DUI case is appropriate for possible juror to sit on.

Walk-and-Turn (WAT) Test – 1 of 3 tests comprising standardized field sobriety battery.  Person takes 9 heel to toe steps down a straight line, turn and takes 9 heel-to-toe steps back up the line.  Person assessed on ability to understand and follow instructions, and to maintain balance during instruction and walking portions.

Wet Reckless – Plea bargain to charge of reckless driving, “alcohol-related” per Vehicle Code Section 23103 per 23103.5.  A wet reckless may result from lawyers’ pretrial negotiations reducing charge of DUI.  Various considerations may lead to such a reduction:  relatively low BAC, no collision, no priors, good driving record and other factors.  Lower fine, no jail time, no record of a DUI conviction and often other bonuses. If person gets subsequent DUI conviction within statutory time (presently 10 years), “wet reckless” considered a “prior” DUI conviction, leading to increased penalties and mandatory jail.   A wet reckless often a factor for one needing DMV driving record to reflect only a reckless driving conviction.