When you’ve been arrested and charged with a DUI, you probably can come up with a list of reasons in your head why you should just give up and plead guilty. But if you want to see a real list from a real professional – someone who has seen just about every kind of drunk driving case imaginable – then consider just twenty issues that we have put together showing why you should indeed fight. The common thread you’ll see in the list below is that there is very little that is in fact objective about a drunk driving case; pretty much every element is up to interpretation and subject to scrutiny. That is where the skill set of an experienced DUI attorney comes into play.
So without further ado, please consider the following 20 elements of a DUI case we would examine and pursue on behalf of our clients (though, mind you, even this is far from an exhaustive list):
1. Other Variables That Call Into Question Accuracy of Field Sobriety Test
- 1. Other Variables That Call Into Question Accuracy of Field Sobriety Test
- 2. Other Explanations For Physical Signs of Intoxication
- 3. Inaccuracies Even In A Perfectly Administered Field Sobriety Test
- 4. Non-Alcoholic Chemicals That May Produce Positive Breath Test Results
- 5. Mouth Alcohol That May Also Produce A False Positive in The Breath Test
- 6. Increased Blood Alcohol Level Measured Later May Not Reflect BAC at Arrest
- 7. Officers May Not Do Due Diligence During 20 Minute Observation Period
- 8. The Inherent Inaccuracy of the Blood-Breath Partition Ratio
- 9. The Officer Failed To Read You Your Miranda Rights
- 10. The Meaninglessness of the Phrase, “I smell alcohol on your breath”
- 11. The Vehicle Was Initially Stopped Without Justification
- 12. Anonymous Citizen Reports That Led To Being Pulled Over
- 13. Misleading or Contradictory Statements from Police Officers
- 14. Independent Witnesses That Corroborate Your Side of the Story
- 15. Officer Who Administered Tests Was Improperly Trained or Uncertified
- 16. Videos That Contradict Police Testimony
- 17. Officers That Fail To Produce Dispatch Tapes
- 18. Breath Test Device Was Poorly Calibrated or Maintained
- 19. Failure to File Within Statute of Limitations
- 20. Inaccuracy of Hospital Blood Tests
As experienced DUI attorneys, one of the elements of the case we always examine is the location of the arrest and field sobriety test, because frankly, there is nothing scientific about a roadside test. There are just two many other factors that come into play that could contribute to a poor test result, but that have absolutely nothing to do with your sobriety. Obvious examples include the terrain, the weather, the lighting conditions, etc.
2. Other Explanations For Physical Signs of Intoxication
The arresting officer is not a doctor. He or she doesn’t know if you have bloodshot and watery eyes because you are drunk, or because you have allergies. He or she doesn’t know if your face is flushed because of alcohol consumption or because you are distressed at having just been pulled over and ordered to get out of your car. It is our job, and just one of many areas in which our particular skills come into play, to make this case before the jury.
3. Inaccuracies Even In A Perfectly Administered Field Sobriety Test
Oftentimes the arresting officer fails to properly administer the field sobriety test, either because he is not trained well enough or prepared well enough for the task. But even when the test is administered correctly, statistics from the National Highway Traffic Safety Administration show it still wrongfully convicts a large percentage of DUI suspects.
4. Non-Alcoholic Chemicals That May Produce Positive Breath Test Results
Breath test devices can detect non-alcoholic chemicals and produce a false positive. Such compounds include, among others, ethylene, toluene, nitrous oxide, diethyl ether, acetonitrile and isopropanol. Studies even show that smokers in particular are more likely to get exaggeratedly high BAC readings from breath tests!
5. Mouth Alcohol That May Also Produce A False Positive in The Breath Test
The first thing that probably comes to mind is mouthwash, but in fact things like cough syrup, cold medicine and a whole host of other things can contaminate the test results.
6. Increased Blood Alcohol Level Measured Later May Not Reflect BAC at Arrest
It takes time for blood to absorb into your bloodstream and reach your peak blood alcohol level. Therefore, it is possibly that your BAC could below .08 (the legal limit) when you were pulled over, but higher when you are tested later at the hospital or police station. Nevertheless, that later test should be irrelevant; it is not illegal to have a BAC above .08 at a police station. What matters is your BAC at the time you were driving.
7. Officers May Not Do Due Diligence During 20 Minute Observation Period
Before the arresting officer gives you a breath test, Alabama law requires that he observe you for 20 minutes, during which time the officer must make sure you do not do anything to cause alcohol to travel from your stomach to your mouth (e.g. burp, throw up, etc.). If you do, it will dramatically increase the results of your breath test (perhaps putting you over the legal limit when really you are not). Unfortunately, many officers are not vigilant during this observation period, and that allows room for reasonable doubt (or sometimes even grounds for having the test thrown out as evidence completely).
8. The Inherent Inaccuracy of the Blood-Breath Partition Ratio
The accuracy of the breath test rests on the basic assumption that the average blood-breath partition ratio throughout the population is 2100-to-1. But studies show that just isn’t so. Chalk up one more reason why there’s nothing written in stone about breath test results, and why it’s so important to have an experienced DUI attorney well-versed in the relevant science.
9. The Officer Failed To Read You Your Miranda Rights
If the arresting officer continues to interrogate you after taking you into custody – and hasn’t advised you of your Miranda rights, or done so and obtained a valid waiver from you – then your post-custodial statements will likely be deemed inadmissible in court.
10. The Meaninglessness of the Phrase, “I smell alcohol on your breath”
Do not be intimidated by the arresting officer who brings out the old hackneyed line of “I smell alcohol on your breath.” If the officer puts something like that about the offender in their report, an experienced DUI defense attorney will tear it apart at trial. Why? Because alcohol itself (ethanol) is odorless. It’s the mixing agent or flavoring that produces the odor, so the only conclusion that can be drawn from “smell of alcohol on your breath” is that you probably consumed alcohol at some point recently. But it tells the arresting officer absolutely nothing about your blood alcohol level, which is the salient issue when it comes to being charged with drunk driving.
11. The Vehicle Was Initially Stopped Without Justification
The police officer has to have a particular, reasonable basis upon which to believe you have broken a traffic law or some other law. If that standard is not met, and you are pulled over anyways, your rights have been violated and evidence collected as a result can be thrown out.
12. Anonymous Citizen Reports That Led To Being Pulled Over
An anonymous call to police is not sufficient grounds in and of itself for a vehicle to be pulled over. If the police fail to provide further reason for why the stop was made, then again it is an unjustified stop and the door is wide open for us to challenge any and all evidence gathered afterward.
13. Misleading or Contradictory Statements from Police Officers
We appreciate the hard work of the police department. But in our roles as aggressive defenders of our clients, nobody’s word is sacrosanct. Anything a police officer says at the time of the arrest, in the police report, or in court proceedings may be used to by us to place his credibility in doubt in the minds of the jury.
14. Independent Witnesses That Corroborate Your Side of the Story
Events involving DUI charges usually don’t happen in a vacuum. There may be a bartender, or perhaps witnesses to an accident, who can attest to specific details supporting our argument that you were sober at the time.
15. Officer Who Administered Tests Was Improperly Trained or Uncertified
Was the arresting officer sufficiently trained to conduct the field sobriety test? In the case of the Breath Test, is the arresting officer licensed to administer the test? Has his or her license expired?
16. Videos That Contradict Police Testimony
Whether they be dash cams on the police cars or booking room videos at the police station, these may in fact provide footage that exonerates you (and embarrasses the police). For example, the police report may say you were unsteady on your feet and slurring your words when you came into the station, but on the booking room video you are physically steady and unimpaired in your speech.
17. Officers That Fail To Produce Dispatch Tapes
Most DUI stops these days are recorded on dispatch tapes. If these tapes are requested and it turns out they weren’t preserved, that’s something we can use to challenge the case.
18. Breath Test Device Was Poorly Calibrated or Maintained
The Breath Test is conducted with a mechanical device and like any device it has to be properly maintained and calibrated. If we find any sign that it wasn’t, we can have the test results thrown out.
19. Failure to File Within Statute of Limitations
With regard to DUI misdemeanor charges in particular, if they are not filed within a certain period of time following the arrest, the charges must be dismissed.
20. Inaccuracy of Hospital Blood Tests
Blood tests taken at a hospital can produce exaggeratedly high BAC results. This is in part because of the blood absorption process mentioned above, but it’s also worth noting that blood tests taken from severely injured people are not statistically accurate.