Defending a drunk driving case will depend on the specific circumstances surrounding your individual situation. These are complex offenses and require the full attention and expertise of a seasoned DUI/DWI professional. The specific defenses are almost without limit!
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.
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 evaluate 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.
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.
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!
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 checkpoint or another 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.
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 the admissibility of the test results — as well as the license suspension imposed by the motor vehicle department.
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.”
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.
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 the 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 a 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.
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 leaves a wide range of defensive tactics for your attorney to pursue. Through the requirement of discovery, an attorney can uncover irregularities that might lead the prosecution to reclassify your case, drop it entirely, or cause the state’s case to be severely damaged at trial.