The Alameda County District Attorney’s Office announced yesterday the decision not to bring criminal charges against Oakland City Council Member Ignacio De La Fuente, who was arrested for a DUI last month. To many this smacks of favoritism, including me.

The facts of De La Fuente’s case read like so many DUI cases that have crossed my desk over the years. It’s around holiday time, and some guy, who may have had too much to drink, gets into his car and is pulled over for something totally routine, speeding. The officer says he smells alcohol and so administers field sobriety tests. The guy fails the field sobriety tests. He measures over .08% on the preliminary alcohol screening test and the chemical test at the station. The rest is history.

Except, that Ignacio De La Fuente is a City Council Member. The reasons offered by a spokesperson at the District Attorney’s Office for not bringing charges reads like a criminal defense lawyer’s primer. Sure, the numerical result of the preliminary alcohol screening test might not be admissible at trial. But that’s the argument that the defendant would make, not the district attorney. Sure, when the blood alcohol level is higher in the chemical test taken after the fact than it was on the preliminary alcohol screening test given when the person was pulled over, it might be that the person’s blood alcohol level was rising, and that it was below the legal limit at the time of driving. But, again, that is an argument ordinarily advanced by the defendant’s own attorney!

People are frustrated that this politician got a bye when the rest of us would probably have gotten the book. This summer, Alameda County (of which Oakland is a part) became one of several pilot counties to require people to install an ignition interlock device in their car on even a first DUI conviction. It’s nice to know that Oakland is cracking down harder on DUIs – unless you happen to be a city councilman.

The silver lining for the rest of us I suppose, is that in a legal strategy called “eat your words,” defense attorneys should remind the Alameda District Attorney of her eloquent defense of Mr. De La Fuente, in future DUI cases.