DWI and DUI charges can hurt your driving record, your pockets, your career and even get you jail time. If you have been recently charged for DUI or DWI, it is not something to take lightly, but it also does not mean the case is closed before you step into the courtroom.
By hiring a decent defense attorney, one who knows what the DUI and DWI laws actually are in different areas, there are many ways that your case can go in your favor and can even get dismissed all together.
There are three categories that arresting officers and district attorneys can fall short in for DUI and DWI cases. Police Officer Procedures, Court Technicalities, and Testing Issues are all avenues that can help you win your case.
Here is a list of topics that may get you out of DWI or DUI hot water:
IMPROPER PROCEDURES BY POLICE OFFICERS
FAILURE TO OFFER MIRANDA WARNING – When the police have failed to properly issue Miranda Warnings, prosecutors cannot use statements from the defendant in custody for a DWI or DUI.
ILLEGAL STOP OF DRIVER – you can’t be pulled over unless your officer has reasonable to believe that a law has been violated.
ILLEGAL SEARCHING – Any evidence illegally obtained from improper searching is not admissible in court. Police cannot search a suspect or their automobile for a minor traffic offense without a driver’s consent or probable cause.
CONDUCT OBSERVATION PERIOD FAILURE – Most courts require that a driver be observed continuously for a minimum period of 15 minutes or more, before a breath test can be given.
WEAVING WITHIN THE LANES IS LEGAL – moving a little bit without crossing any lines is not breaking any law. A vehicle can’t be stopped for that reason.
ANONYMOUS LEAD OF DWI – when an anonymous citizen reported that the driver could be drunk, this is not reason enough to be pulled over in the first place.
POST-DRIVING ALCOHOL IMBIBING – The officer must prove the blood or breath alcohol at the time of driving and of the arrest. Consumption of alcohol after driving would increase results and were not the true levels when the person was operating the vehicle.
Police Procedure has to be followed, or the case could be dismissed in its entirety.
COURT ISSUES
FAILURE TO PROVE DUI – A defendant’s admission to driving does not prove a charge of DUI.
NO SPEEDY TRIAL – If a client is not provided with a trial within a certain period of time, which varies between states, through delays of the court or prosecutor, the charges must be dismissed.
INDEPENDENT WITNESSES ACCOUNTS – In many cases, independent witnesses can have the charges dropped. Witnesses to accidents, bartenders who served the suspect, and even hospital personnel provide testimonies that prove the defendant’s sobriety in court.
PRIOR DISCIPLINARY RECORD OF THE OFFICER – To attack the officer’s credibility for a suspect’s case, a police officer’s previous disciplinary record can be used in hopes of dismissal.
MEDICAL & HEALTH PROBLEM FACTORS – Many factors can affect the outcome of intoxication test results. Medical problems having to do with eyes, arms, neck, back and legs often throw off the results and validity of many field sobriety tests.
BAD WEATHER – Weather reports that show evidence of low visibility, high winds, and other various extreme conditions are often admissible to explain poor driving.
LACK OF PROBABLE CAUSE – Sometimes the arrest itself is in question. The suspension of a license can be reversed, when a police officer doesn’t have specific facts to support any arrest for DWI or DUI.
INCONSISTENT POLICE STATEMENTS – Statement made by police both verbally and in written reports, may be used to attack officer credibility in a particular case.
MISLEADING POLICE STATEMENTS – Confusing or exaggerated arresting officer statements regarding the consequences of taking or refusing a blood, breath, or urine test, can have the case thrown out of court.
INTERFERING SUBSTANCES – Many items such as mouth wash, asthma spray, cough drops, paints and even fingernail polish contain forms of alcohol. These artificial means of alcohol can hinder proper blood level results and render the test invalid.
STATUTES OF LIMITATIONS – A DWI or DUI misdemeanor charge must be filed within a certain period of time, or the charges can be dismissed.
DWI ON PERSONAL PRIVATE PROPERTY – Often, the court will say that a person who has not driven the car onto a public street, road or highway cannot be charged for drunk driving.
DISCLOSURE OF EXPERT FAILURE – If prosecutor cannot disclose the identity of the state expert, this can be a cause for dismissal.
DUI and DWI TESTING ISSUES
USE OF LACTATE RINGERS – If hospital staff use lactate ringers during the treatment of a suspect, the hospital blood serum results will report elevated readings that are invalid.
TEST EXPERT WITNESSES – Are often required to inspect the validity of blood tests, breath tests, and also field sobriety tests.
FAILURE TO RECORD CERTIFICATION TESTS – the failure to provide the value of the simulator solution used to test validity in breath machines can cause the breath test results to be invalid.
FIELD SOBRIETY TESTING IS INACCURATE – in healthy individuals, the one-leg stand test is only 65% accurate, and the walk-and-turn test is only 68% accurate in determining if a person is under the influence. People with outstanding injuries, weight conditions, medical conditions, and those who are 65 years or older cannot be validly judged by these tests.
NON-STANDARDIZED FIELD TESTS ARE NOT LEGAL – touching your finger to your nose, or saying the alphabet, or counting backwards, all fail as valid sobriety tests.
BREATH TESTING IS INACCURATE –experts believe that one breath test alone is not valid. Breath testing is includes a variance as much s +/- 12.5%, non-specificity for ethanol, etc.
INADMISSIBLE PORTABLE BREATH TESTS – Many states and counties prohibit the use of portable breath testing. They do not allow such results to be used as evidence in DUI trials.
IMPROPERLY ADMINISTERED PORTABLE BREATH TEST– Typically, two tests need to be administered to consider the results evidential in nature. The manufacturers of many different portable breath testing devices require this for accuracy in testing.
BLOOD TEST IS INACCURATE – Police-issued blood tests often fail to follow prescribed rules by labs for proper testing, proper analysis, and/or proper recommended guidelines.
HOSPITAL BLOOD TEST IS WRONG – Sometimes a hospital can be wrong. Hospital blood tests can be wrong from time to time and overestimate a person’s actual blood alcohol levels by as much as 25%. Injured patients also throw off the blood results, due to blood loss and other chemical factors.
UNLICENSED BREATH TEST OPERATOR – Many states require the operator of the breath test to hold a valid operator’s license. If they do not, the breath test result can be deemed inadmissible in court.
BREATHALYZER MALFUNCTION – Most state rules declare that malfunction or repair of the instrument within a certain period of time can allow for the results of the suspect’s test to be presumed invalid.
BREATH TEST LICENSE EXPIRED – Most states require an unexpired operator’s license, or the breath test result is invalid and deemed inadmissible in court.
BREATHALYZER NOT APPROVED – The testing instrument must be listed on the Federal List of Approved Breath Evidential Instruments and the ISP approved list of Devices, or a court can find the results of the said instrument to be inadmissible.
IMPROPERLY ADMINISTERED FIELD SOBRIETY TEST – Field tests that are improperly administered are not valid evidence of intoxication, according to statements made by the National Highway and Traffic Safety Administration.
VIDEO ISSUES
FAILURES TO PRODUCE DISPATCH VIDEOS – Many counties record everything as a standard today. Failure to produce video proof upon request can sometimes cause all evidence to be suppressed in many courtrooms.
BOOKING ROOM VIDEO PROOF – Many police videotape drivers at the station, where their speech and balance appear, in spite of police testimony to the court.
IN-SQUAD VIDEO PROOF – Quite often, driver performance on field tests is being recorded and these tapes sometimes contradict police testimony.
For additional blogs on this topic and other similar legal issues, feel free to visit http://www.carbonelawyer.com/
Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law
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Interesting. One could argue that, "they shouldn't do it in the first place," but I understand why you are writing this. My cousin Alex Riley was arrested for this, and he was innocent.
ReplyDeleteHe had only used Listerine before driving, as he is quite the ladies man, and enjoys pleasing, fresh breath. Soon after, what do you know, but the fuzz busted him and he was, once again, held back by the man.