DUI Defenses
Increasingly, the police are under great pressure from advocacy
groups to make more DUI arrests. Understandably this has resulted in
a larger number of “borderline” cases, or, cases in which an arrest
should not have been made at all. The prosecutor’s burden in proving
DUI is governed by the same rules of law and evidence required by
the courts in most cases.
However, unlike most charges, the arresting officer’s
testimony relies on his “opinion” of your impairment relating to
your ability to drive and your normal faculties. In addition, there
may also be scientific evidence such as a breath test.
In a typical DUI prosecution the state presents evidence
regarding your driving pattern, your performance on “field sobriety
tests”, and the results of a breath test. Although the evidence
against a driver may seem strong at first glance, there are
good defenses to the different segments of the state’s case.
A lack of evidence can be brought to the prosecutor’s
attention to secure a reduction to a lesser charge such as reckless
driving, or possibly dismissal of the case.
Driving Pattern
Usually in a DUI case the
officer documents what you did wrong,
not what you did right.
For instance, the officer’s report may indicate you were weaving.
However, officers usually don’t document proper driving behavior
such as your speed, you were not following other vehicles too
closely, and you obeyed all traffic signs.
There may be other factors
to consider such as: road condition (i.e. lack of lighting, road
construction, adverse weather conditions, traffic congestion),
confusing road signs, you’re unfamiliarity with the area, and
mechanical difficulties with your vehicle.
In addition, if the officer
did not have a valid legal reason to stop your vehicle the court may
exclude all evidence against you. This could result in the dismissal
of your charge.
Field Sobriety Tests
As part of an officer’s DUI
investigation they typically request a driver to perform field
sobriety tests. These tests could include standing on one leg,
touching your finger to your nose, reciting the alphabet, and
walking each step with the heal of one foot touching the toe of
another. The officer then “scores” your performance on these tests
to determine whether a driver should be arrested. Most people are
surprised to learn the criteria for “scoring” is very strict on the
driver, i.e. more than one small mistake on a test is considered a
failure. For example, the “heal-to-toe” test has more than a dozen
scoring criteria. If a driver misses or forgets more than one step
the result is scored as a failure and the driver may be susceptible
to arrest. This may be the case even if the driver has physical
disabilities.
Generally, most police
agencies videotape your performance of the field sobriety tests. I
can order a copy of the videotape and we can review and evaluate
your performance of the field sobriety tests. We can determine if
your performance on the tests is consistent with the officer’s
version in his police report. The videotape can be compelling
evidence and a person who looks good performing the tests can often
be a good candidate for a reduction of the DUI charge regardless of
the “score” given by the officer.
The Breath Test
The breath test results may
be inaccurate or unreliable for a variety of reasons. Inaccurate
intoxilyzer readings could be caused by such things as the failure
of the police to observe you for 20 minutes before the test, the
lack of proper training and licensing of the operator, and hiccups
or burping. Occasionally, an exceptional performance of the field
sobriety tests on videotape can cast doubt on the accuracy of a high
breath test result.
I can secure the intoxilyzer maintenance records and review the qualifications of the breath test operator. We can explore possible defenses such as whether your actual blood alcohol level may have been below the legal limit at the time of driving (even though it was above the per se limit at the time of testing). My office also uses state-of-the-art software to check the accuracy of your breath test results.
To fully understand your options, a thorough evaluation of the
state’s case by an experienced attorney is critical.