And, in many cases the charges against you might be dropped due to one simple error on the part of the arresting officer or the criminalist or due to a deficient piece of equipment used to test your alcohol level. In other cases, your attorney may have to explore several defenses to lessen the impact that the evidence may have on a jury as he/she tries to execute a winning strategy.
If you are charged with driving while intoxicated, you might find the following useful when you interview for an attorney to represent you in this serious matter. These aren’t by any means the only defenses available, but probably cover the majority available in most states.
Were you under the influence at the time of driving?
The officer’s observations and opinions as to intoxication can, and should, be disputed. They have a built-in bias and want to present information in their police report that supports why you were arrested. Importantly, a good attorney will generally always find fault with the circumstances under which the field sobriety tests were given. Remember, these tests do not evaluated objectively! And, if you had a witness to how these were administered and how you did, all the better because they can testify to the fact that you appeared to be sober.
Where you driving the vehicle?
In order for you to be convicted, it is usually not sufficient for you to simply be intoxicated. The prosecution also needs to prove that you were actually driving. This may prove difficult for prosecutors in many situations. For instance, while waiting for roadside assistance due to a flat or running out of gas, the officer may not be able to determine who was driving the car or when the car was last driven. The same may be true in accident situations where there are no witnesses to point a finger at the driver.
Was the alcohol still being absorbed into your system?
If you were drinking just prior to when you were stopped and tested for BAC, then the blood, breath or urine test will likely be an unreliable measure of your true level. It does take anywhere between 45 minutes and 3 hours for a drink to be completely absorbed into your blood system. And, if you were also eating at the time, this can be stretched out even further. In many cases, defendants were under the legal limit while driving, but over the legal limit hours later when they were tested. Only an experienced driving under the influence attorney can make this work in your favor!
Was there probable cause to stop you, detain you, or arrest you?
A good attorney will always look to suppress evidence if he feels that you were not stopped for a reason that can be easily articulated or if the officer did not have sufficient reason to detain you. And, if the officer did not have reasonable suspicion or probable cause to arrest you, then again you may be able to prevent the prosecutor from using evidence of the arrest and blood alcohol test against you. Also, if you were stopped at a sobriety check point or other form of roadblock, there are rules that officers needed to follow and in many cases they are the ones caught making mistakes that can send you home free.
Warnings! Implied Consent Law:
First of all, you should know that all 50 states have enacted implied consent laws. However, they may vary by state in what needs to be said to you regarding the warnings. So, despite what you might have heard, implied consent laws provide that any person who operates a motor vehicle has implicitly consented to a chemical test of his or her blood, breath, urine, or saliva for the purpose of determining the alcohol content of the blood. Therefore, you DO NOT have the right to refuse a breathalyzer without consequence (such as automatic suspension of your license) so long as a police officer has arrested you or taken you into custody for operating a motor vehicle while intoxicated or under the influence. If the officer did not advise you of the consequences of refusing to take a chemical test, or gave it incorrectly, this may affect admissibility of the test results — as well as the license suspension imposed by the motor vehicle department.
BAC at time of driving-what is Retrograde extrapolation?.
This refers to the requirement that the BAC be “related back” in time from the test to the time of driving and therefore the courts make the assumption that blood-alcohol levels always drop after a citizen stops drinking. The presumed level of blood-alcohol, at the time of the traffic stop or collision, is theoretically equal to the blood-alcohol test result plus approximately 0.015% for every hour that had passed between the time of the incident to the time of the BAC test. Other experts recommended 0.20% BAC drop per hour, which is even more damaging to an accused driver. This is to allow time for the liver to metabolize the alcohol. One legal textbook on DWI law points out that:
“One should not lose sight of the requirement that the prohibition is for driving or being in physical control ‘while ‘under the influence’ of an intoxicant or prohibited drug.”
Was your Blood-alcohol Concentration (BAC) over the legal limit at the time of driving?
This is one of the most disputed issues in any DUI/DWI case. A good defense attorney will always search high and low in the wide range of potential problems that can exist with blood, breath or urine testing. for example, most breath machines will register compounds other than alcohol that are found on the human breath. In some cases, medication or working around certain chemicals, like paint, can exaggerate the readings of these machines. And breath machines assume a 2100-to-1 ratio in converting alcohol in the breath into alcohol in the blood; in fact, this ratio varies widely from person to person (and within a person from one moment to another). These and other defects in analysis can be brought out in cross-examination of the state’s expert witness, and/or the defense can hire its own forensic chemist to give the jury a more unbiased evaluation of the true readings of the testing equipment.
Warnings! The Miranda Rule:
This is a Federal Law and applies in all 50 states! You have the right to the presence and advice of an attorney before any custodial interrogation takes place by law enforcement. Thus, incriminating statements may be suppressed if warnings were not given at the appropriate time. This defense isn’t often invoked in DUI/DWI cases since most of the damaging evidence is obtained prior to your arrest or as the police say, “during their investigative stage”. However, in most cases, attorneys are limited to preventing statements from coming in against you at trial, rather than using this rule to get your case thrown out of court.
For persons under legal drinking age, for commercial drivers, or for persons who are under probation for a prior DUI/DWI the laws for Implied Consent are different and you need to consult an attorney to better understand the State by State differences here.
There are a number of complex physiological problems involved here and the individual circumstances surrounding your case may bring this analysis into play and to play in your favor! Remember, if you have not yet digested all of the alcohol consumed, or had eaten a meal, the government’s extrapolation of your blood-alcohol level could be over-estimated by huge amount. This government error does not even include possible errors in the mechanical testing equipment or its machine operation. Other factors that can delay alcohol absorption are severe crash trauma, emotional disturbance, some drugs, individual physiology and the person’s activity level.
Were state regulation laws for blood-alcohol testing equipment and procedures followed?
The District Attorney who prosecutes your case must prove that the blood, breath or urine tests complied with your individual state requirements as to calibration, maintenance, procedures. This leave a wide range of defensive tactics for your attorney to pursue. Through the requirement of discovery, an attorney can uncover irregularities which might lead the prosecution to reclassify your case, drop it entirely, or cause the state’s case to be severely damaged at trial.
This is the process whereby the accused and the prosecutor negotiate a mutually satisfactory disposition of the case!
However, driving under the influence has become a hot issue in politics as a result of the work of MADD and other organizations that are bound and determined to get everyone off the road who even sniffed alcohol. As a result, it has become a focal point when electing judges and district attorneys. And, these are the elected officials that stand in your way of making a plea bargain to reduce the charges or reduce the sentence in these cases. Having said this, it should also be pointed out that each state, and each county or bureau or each court has its own set of rules that they use to appease the political machine that elected them. We cover a few basics here, but must rely on your Legal Defense Network attorney to advise you of the or desirability or possibility of making an appropriate Plea Bargain.
A plea bargain usually centers around the defendant pleading guilty to a lesser offense, or to only one or some of the counts in a multi-count indictment. In return, the defendant seeks to obtain concessions as to the type and length of a sentence or amount of fine that their case would normally bring. When a plea bargain is reached, it must be placed on the record in open court at the time a guilty plea is entered.
First time offenders charged with driving while intoxicated frequently ask if there is any chance they can plead guilty to “a couple of traffic tickets” and thus avoid suspension or revocation of their driver license. Unfortunately for these drivers, there are usually strict statutory limits on plea bargaining in these cases which make it highly unlikely that they will be able to plead to a non-alcohol related offense. However, where your attorney can point to substantial issues of contention on the primary facts in the case and the district attorney then recognizes that the alcohol related charge is not warranted, then dry reckless or other vehicle code violations might be substituted for the drinking charge.
In any case, if the prosecutor thinks that a key piece of evidence like the breath test will not be admitted in court, he/she may to want to cut a deal that will let you avoid a DUI. When this happens, you may be offered a plea to a lesser charge, including negligent driving first degree or even, in some cases, a traffic infraction like a speeding ticket.
Other motivations for plea bargaining in DUI/DWI cases are heavy trial schedules of prosecutors, the motivation to see you in alcohol or drug treatment, the unwillingness of, or unavailability of witnesses to testify. If the cop that arrested you was set to retire the next week and is moving to Alaska, you stand a substantial chance of getting a good (if not great) deal.
Some prosecutor’s offices flat out refuse to cut deals in some DUI cases because they are new lawyers and want the jury trial experience they will gain by taking your DUI case to trial. While a jury trial is a defendant’s right in any state, some prosecutors are now demanding a jury trial even if the defense wants a judge to decide the case.
If the prosecutor thinks that there is a good chance of winning a DUI conviction at trial, he/she is not likely to cut a deal. Therefore, sometimes it is advantageous to go through motions’ hearings (which determine whether key pieces of evidence will be allowed to be used against you at trial). If you win the motions, then good plea bargains often materialize, where before there were none.
A good DUI defense attorney will be able to give you a better idea of what kind of bargain might be reached in your case.
ADMINISTRATIVE LICENSE HEARINGS
License suspension or revocation
Several years ago, our federal government began pressuring each state to pass new or stricter laws to punish drivers that are suspected of driving under the influence of alcohol or drugs or both. What resulted was the administrative license suspension or administrative license revocation hearing. A procedure conducted by your state’s licensing bureau. And, the result of loosing at this hearing is punishment added on to what might occur in the courts. That’s why officers take your license when they arrest you, even before you’re pronounced guilty by a court of law. So, whatever happened to being “innocent” until proven “guilty”? It’s not fair, but it’s something that you need an attorney to deal with immediately.
There are very short time limits, between 5 and 30 days, for requesting a hearing, appeal or motion to rescind a suspension or revocation in you state. And if you miss that window of opportunity, then you are SOL and the hearing will go on without your input.
Some states even look more favorably upon drivers who take the state blood, breath or urine tests and score over the legal limit, than for those who refuse all testing. And, the penalties, just like in the court system, will vary depending upon whether this is your first, second, third or fourth offense. Still other states will penalize your license driving privileges for refusing to take the BAC tests than if you are convicted at the criminal DUI/DWI trial.
You need to consult with an attorney who specializes in this type of practice, to be able to determine what you should do about your license hearing because your right to drive may hang in the balance.
Using the Driver’s License suspension hearings to your advantage!
A number of issues can be raised during an administrative hearing on your driver’s license suspension or revocation. These hearing are conducted with your state’s Department of Motor Vehicles (DMV), Department of Public Safety (DPS) or Bureau of Motor Vehicles (BMV). These hearings can lead to penalties that are in addition to the court determinations. It is important that you be represented at these hearings to not only win here, but to assist in the preparation of your case with the court system. Remember, these hearings can often expose weaknesses in the officer’s criminal case, which will be heard later. Your lawyer may use transcripts from these sworn ALR/ALS hearings to impeach or contradict the officer’s testimony at a later hearing or trial.
Limited license use for work & school
State also vary in the way they determine if or when you can drive a motor vehicle for attending school or going to work or for other necessities or emergencies. This can be particularly devastating for someone who relies on driving to earn a living. Make sure the attorney you hire is capable at handling these administrative issues for you. Most criminal attorneys who don’t specialize in DUI/DWI defense may not be familiar with all the issues and complexities of administrative law in this area. Get appropriate representation and you can WIN these hearings despite what others may tell you!