A first time driving under the influence (DUI), or in some jurisdictions DWI (driving while intoxicated) conviction, commonly has punishments including: the suspension of your license for six months with some states offering a work permit after one month, court fines of $500 to $1,500, a required alcohol program taking six months and costing hundreds in additional fees, increased auto insurance of hundreds of dollars a year, the misdemeanor stays on your driving record for seven years, and the case can put you back one to several thousand dollars in attorney's fees depending on the quality/greed and degree of involvement (pleading you out at arraignment or representation through jury trial). The author is a former prosecuting attorney who has both tried and defended hundreds of DUI cases.
The question arises - under just what circumstances may you have a defense worth fighting? DUI attorneys will tell you they're always worth it, if for nothing else to scrutinize the police report and give you an informed decision on the viability of the case against you. This article should help inform you whether you should "lawyer up" and pony up expensive attorney fees by addressing the most common defenses to DUIs.
Generally there are two charges in a DUI case. One charge is for having a blood alcohol level of .08 at the time of driving; and one charge is for being under the influence of alcohol while driving. The difference can be highlighted by someone's tolerance for alcohol. Some people, usually those accustom to drinking, can drink more heavily and not be impaired by the drinking as compared to a drinking novice.
Therefore, there are some who with a .08 blood alcohol level (BAC) or more, may not be impaired by the alcohol, but still be in violation of the law against driving with a BAC of .08 or more. So, that high tolerance person may be found guilty of the .08 law, but not guilty of the driving under the influence law.
Conversely, a drinking novice with low tolerance for alcohol may be impaired with an alcohol level under .08, and therefore may be found not guilty of driving with a BAC of .08 or more, but may be found guilty of driving under the influence with a BAC under .08. If you are guilty of either offense, the punishment is the same as being guilty of both.
The first potential defense is whether the prosecutor can prove driving. That's easy when you're pulled over by the police. It's much more complicated if your car is stopped due to an accident, or the police encounter did not permit the officer to witness the driving. I have successfully defended cases where my client and his wife both exited the driver's side and disputed the officer's understanding of who was driving.
A police response to an accident is fertile ground for driving defenses. There are issues of whether any confession of driving can be admitted without some driving evidence first presented. If there are multiple passengers, if the owner of the car is not the suspect of the DUI, if the keys are in the ignition and not on a suspect, if someone fled the scene to get help, and if there is the presence or absence of other clear witnesses of driving, all of these circumstances add to the possibility of a driving issue not able to be proved.
Personalized DUI Defense Case Review - $67
The closer a BAC test result is to .08, the more credible defenses emerge. The prosecution must prove you were .08 at the time of the driving, not the time of the test. Depending on whether you took a blood, breath, or urine test, the test would be administered anywhere from 20 minutes to several hours after the driving. BAC changes over time. A rising BAC defense involves a situation where a significant amount of drinking ( e.g., a shot with a beer tracer) took place shortly before the driving, and the test occurred after the driving.
In a rising BAC case, the alcohol already consumed shortly before the driving, does not enter the blood stream until the driving is completed and until the test is administered. Reasonable doubt may exist with a BAC test of over .08 at the time of the test, but where the diver may be under .08 at the time of the driving. Therefore, the defense goes, both the high test level and any impairment occurred after the driving. The charge is driving under the influence or with .08 or more, not merely taking a BAC test in that condition.
Commonly, police use two breath tests. A highly accurate machine usually kept at the police station, and a less accurate hand-held device used in the field. Discrepancies between these two tests results can bolster a rising BAC defense if the field hand held test is lower than the subsequent, higher accuracy, police station test.
Again, an accident scene is fertile ground for defenses. I have had several cases where the driver allegedly drank alcohol, or drank additional alcohol, after the accident had occurred, but before the police arrived. Clients allegedly drank at the scene, or left a note at the scene and were at a bar or their home drinking. It becomes highly problematic with "post accident drinking" for the prosecution to prove sufficient pre-driving drinking to a sufficient degree to convict.
If you were taking medication at the time, or have a medical condition, that very unlikely will have an effect on the accuracy of the BAC test, but may have a substantial effect on your body's ability to metabolize alcohol which may give rise to a defense in some states. I have seen one medical condition where evidence was provided, and the judge concurred in a judge trial, that the person was producing alcohol in her body without consuming any alcohol beverages at all! Not guilty.
With much lesser success the accuracy of the BAC tests may be attacked. Blood tests are the most accurate, however, they require procedures including the cleaning of the area with an non-alcoholic swab. Breath tests are the next accurate BAC test, that is, the more accurate police station machine (usually Inoxilyzer 5000) with slope detection and other fail safes to guard against mouth alcohol (mouth regurgitation with potentially higher concentrations of alcohol than BAC). Procedures for the breath tests include a 15 minuet, uninterrupted observation period prior to the test administration. Further, manufactures require calibration of the machines twice a week. The least accurate is the urine test. Procedurally two samples are required, one to clear the urinary system, and a second which will measure the alcohol level currently in your system. If only one urine sample is taken, it will measure the average BAC level from the last time one has urinated and will not reflect current BAC levels, and therefore will not be accurate nor probably admissible as evidence.
One big caveat for any failures in these procedures, except the urine test which requires two extractions to be accurate at all, any deficiency in procedures will likely not result in the suppression of the test as evidence. The judge will most likely allow the test, allow the evidence of procedural shortcomings, and allow the jury to decide the weight to be given to the test.
UNDER THE INFLUENCE
This is the most subjective element of a DUI case, and does not need to be proved for the .08 or more charge. The officer's training and experience will lead to objective observations (commonly weaving within a lane and other minor driving irregularities) and field sobriety tests to form the subjective conclusion that a driver is impaired. This is usually the most successful part of a defense cross examination to raise doubts about the police officer's conclusion.
BLOOD, BREATH, OR URINE TEST CHOICE
Most states require the police officer to give the driver a choice between BAC tests. The easiest for the police to administer, and therefore their favorite, is breath. The failure to give a choice has NOT, in most jurisdictions, resulted in suppressing (throwing out) the BAC test. Regarding choice, I have had many defendants go back and forth between test choices to the point that the test occurs several hours after the driving, and has given the body a chance to metabolize alcohol out of their system (which occurs very generally about the equivalent of one drink per hour).
DRIVERS' LICENSE SUSPENSION
Most states have a separate administrative proceedings through their department of motor vehicles to suspend driving privileges upon a DUI arrest. I have found that procedural problems with choice and/or administrative regulations regarding the various tests, and described above in the BAC .08 OR MORE section, have greater weight and success in these administrative hearings. These hearings have nothing to do with the court.
Generally you have a short time period (10 days in some states) to opt for a telephonic hearing. The police report will include a declaration regarding the choice and waiting periods, and other BAC procedures. The hearing may proceed without the officer. Unless the declaration evidences a procedural problem, you should request at the hearing that the officer appear telephonically as is your right, and lead the officer into answers that often show that these procedures, although checked off on the form, were not really followed.
Nine times out of ten the 15 minuet waiting period for the breath test is violated. I am commonly asked if the failure of the police to give Miranda warnings (your rights being explained to you prior to questioning) will result in the dismissal of a case. It will not.
The remedy of any failures to give the warnings will be the suppression (throwing out) of any statements you have given in response to incriminating police questions, after you are under arrest. I hope this article helps those involved in a DUI arrest understand their major defenses.
Personalized DUI Defense Case Review - $67
