Author of three DUI defense books
HERE ARE 50 WAYS TO BEAT A DUI
If you have been arrested for drunk driving, it is obviously cause for concern. Hiring a qualified DUI defense lawyer can help you challenge your DUI charge. The following are only a few of the available defenses our experienced DUI lawyers will investigate in order to defend your case. Even if your case involves marijuana, illegal drugs, medicine or alcohol, we will help.
1. ILLEGAL STOP OF PERSON OR VEHICLE – a driver cannot be stopped unless the officer has a reasonable and articulate basis to believe that a traffic law or other law has been violated. Similarly, a person cannot be seized unless a violation has occurred.
2. WEAVING INSIDE THE LANES IS NOT ILLEGAL – weaving without crossing any lines is not a violation of the law, and a vehicle cannot be stopped for that reason.
3. ANONYMOUS REPORT OF DRUNK DRIVING – a car cannot be stopped simply because an anonymous citizen reported that the driver was drunk.
4. STANDARD 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. Those persons with injuries, medical conditions, 50 pounds or greater overweight, and 65 years or older cannot be validly judged by these tests.
5. NON-STANDARDIZED FIELD TESTS ARE INVALID – neither the Federal Government (NHTSA) nor medical science considers touching your finger to your nose, or saying the alphabet, or counting backwards, as valid sobriety tests.
6. BREATH TESTING IS INACCURATE – virtually all experts concede that one breath test alone is unreliable. Breath testing is subject to various inaccuracies, including a variance as much s +/- 12.5%, non-specificity for ethanol, etc.
7. BOOKING ROOM VIDEOS – Many police stations videotape suspects at the police station, where their speech is clear and their balance is perfect, in spite of police testimony to the contrary.
8. IN-SQUAD VIDEOS – more and more often, the suspect’s driving and performance on field tests is being recorded; often contradicting police testimony.
9. FAILURE TO PROVIDE 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.
10. POLICE BLOOD TEST INACCURATE – Many times, police blood testing fails to follow prescribed rules of testing, analysis, or preservation recommendations.
11. HOSPITAL BLOOD TEST INACCURATE – Hospital blood tests overestimate a person’s true level by as much as 25% in healthy, uninjured individuals, and are not statistically reliable in severely injured persons.
12. BREATH TEST OPERATOR UNLICENSED – Most states require a Breath Test Operator to possess a valid, unexpired operator’s license, or the breath test result is inadmissible.
13. BREATHALYZER MACHINE MALFUNCTIONS – Most states specify that if there is a malfunction or repair of the breath test instrument within a certain period of time before or after a suspect’s breath test, the results of the suspect’s test are presumed invalid.
14. BREATH TEST DEVICE NOT APPROVED – A breath-testing instrument must be listed on the Federal List of Approved Breath Evidential Instruments and the ISP approved list of Devices, or the results are inadmissible.
15. FAILURE TO PROVE DRIVING UNDER THE INFLUENCE – A defendant’s admission to driving, without more, does not prove a charge of driving under the influence.
16. INDEPENDENT WITNESSES – Often times, independent witnesses to accidents, bartenders, hospital personnel and others can provide crucial evidence of the defendant’s sobriety.
17. FAILURE TO MIRANDIZE – Prosecutors may not use as evidence the statements of a defendant in custody for a DUI when the police have failed to properly issue Miranda Warnings.
18. FIELD SOBRIETY TEST IMPROPERLY ADMINISTERED – According to the National Highway and Traffic Safety Administration, improperly administered field tests are not valid evidence of intoxication.
19. OFFICER’S PRIOR DISCIPLINARY RECORD – A police officer’s previous disciplinary record can be used to attack the officer’s credibility.
20. PORTABLE BREATH TEST INADMISSIBLE – Most states prohibit the use of portable breath testing results as evidence at trial in a DUI case.
21. PORTABLE BREATH TEST IMPROPERLY ADMINISTERED – The manufacturers of portable breath testing devices require a minimum of two tests to consider the results evidential in nature.
22. FAILURE TO CONDUCT OBSERVATION PERIOD – Most states require that a driver be observed continuously for a minimum period, such as twenty minutes, prior to a breath test in order for the results to be considered admissible and valid.
23. EXPERT WITNESSES – Expert witnesses are available to review the validity of breath tests, blood tests and field sobriety tests.
24. MEDICAL AND HEALTH PROBLEMS – Medical problems with legs, arms, neck, back and eyes can affect the results of field sobriety tests. Further, other medical conditions can also affect the validity of breath test results.
25. BAD WEATHER – Weather reports establishing high winds, low visibility, and other conditions are available to explain poor driving or poor balance.
26. LACK OF PROBABLE CAUSE TO ARREST – A police officer must have specific and articulable facts to support any arrest for DUI, or the suspension will be reversed and the evidence suppressed at trial.
27. ILLEGAL SEARCH – The police are prohibited from searching a person or the automobile for a minor traffic offense, and may not search a car without a driver’s consent or probable cause. Any evidence illegally obtained is not admissible in court.
28. PRIOR INCONSISTENT STATEMENTS BY POLICE OFFICERS – Any statement made by a police officer, verbally, in police reports, or at previous court proceedings may be used to attack that officer’s credibility.
29. POST-DRIVING ABSORPTION OF ALCOHOL – The prosecutor must prove the blood or breath alcohol at the time of driving. Recent consumption of alcohol just prior to driving will cause the test results to be higher than what the true level was when the person was operating the automobile.
30. INTERFERING SUBSTANCES – Many items contain forms of alcohol, which may cause false results, such as asthma spray, cough drops, paints, fingernail polish. These items can cause the breath results to be invalid.
31. BREATH MACHINE NOT PROPERLY OPERATED – The manufacturers of breath testing devices have specified protocols, which must be followed for a breath result to be valid. Failure to follow these requirements will result in improper readings.
32. FAILURES TO PRODUCE DISPATCH TAPES – Most stops of vehicles are recorded on dispatch tapes, as well as recording police communications regarding an arrest of an individual. Failure to preserve such tapes upon request can cause all evidence, which could have been recorded to be suppressed.
33. MISLEADING STATEMENTS BY POLICE OFFICERS – Any misleading statement by the police regarding the consequences of taking (or refusing) a blood, breath, or urine test will cause the suspension to be reversed and removed from the driver’s record.
34. STATUTES OF LIMITATIONS – A misdemeanor charge of DUI must be filed within a certain period of time (which varies between states) of the date of offense, or the charges will be dismissed outright.
35. PRIVATE PROPERTY – A person who has not driven the car on a public highway cannot be suspended for drunk driving.
36. FAILURE TO DISCLOSE EXPERTS – The failure of the prosecutor to disclose the state’s expert(s) will cause those witnesses to be barred from testifying against the defendant.
37. LACTATE RINGERS – When hospital staff use lactate ringers during the treatment of a patient, the hospital blood serum results will report falsely elevated, and therefore invalid, readings.
38. FAILURE TO RECORD CERTIFICATION TESTS – the failure to include the value of the simulator solution used to test breath machines will cause the breath test results to be inadmissible in court against the driver.
39. BOOKING ROOM VIDEOS – Many police stations videotape the testing process. These tapes may establish that the testing procedure resulted in inaccurate or inadmissible tests due to burping, radio transmitters, and other improprieties.
40. FAILURE TO PERFORM ADDITIONAL TESTS – The failure of the police to perform any of the additional tests required by law will be grounds to exclude all test evidence from the trial.
41. IMPROPER OPTIONS NOTIFICATION – If the police fail to fully advise you of what types of independent tests you may take pursuant to state statutes and regulations, this will cause the state’s test results to be excluded from evidence.
42. IMPROPER MAINTENANCE – Attacking the breath testing machine’s accuracy based upon its record of failure during certification tests may cast sufficient doubt upon reliability of the machine to either cause the judge to exclude the test results or convince the jury not to believe the state’s BAC reading.
43. DENTAL WORK – Bridgework or false teeth may “trap” mouth alcohol and contaminate a breath machine sample. The failure of police to cause dentures to be removed before a test can be grounds for dismissal of charges, or at least grounds for excluding the state’s breath test results.
44. OBSERVATION – If a police officer fails to continuously observe a defendant for the required waiting period under state law, this can be the ground for excluding the state’s BAC results.
45. BREATH TESTS – Vomiting or burping delays the start of the breath test due to the contamination of your mouth by alcohol brought up from the stomach. The failure of the officer to restart the observation period will be grounds to exclude the state’s BAC results.
46. WITNESSES – Where the prosecution uses a witness to try to establish that you had a higher BAC at the time of driving (by using retrograde extrapolation techniques), such testimony should be attacked based on the witness’ lack of knowledge about your rate of elimination, timing of the drinking period, strength of the alcoholic beverage, and other variables which will affect the Widmark curve.
47. BLOOD TESTS – For blood tests, most states only permit highly-trained medical personnel to collect blood samples. Challenging the person’s qualifications or certification can result in the BAC test results being excluded.
48. LABORATORY AND HOSPITAL – The state must prove that the laboratory or hospital which analyzed your blood sample used properly trained personnel to collect the sample. Sometimes, winning on this point is as simple as filing a motion to dismiss or a motion for directed verdict as a result of the prosecutor failing to introduce the proper evidence of the technician’s training, which will cause the person’s testimony to be totally excluded.
49. CONSTITUTIONAL VIOLATION – Your experienced DUI attorney may be able to exclude evidence or have the case dismissed completely, if the police failed to read you your Constitutional rights or denied you your right to speak with an attorney.
50. VIOLATION OF TITLE 17. This law requires police must follow strict protocols in administering BAC breath tests, including the following:
Breathalyzers must be properly calibrated, maintained, and tested for functionality/accuracy on a regular basis.
Breath tests must be administered only by those specifically trained to do so with the particular device being used.
Police must observe the test subject for 15 minutes without interruption to ensure there is not burping, regurgitation, or anything else that would throw off the result.
Breath samples must be from deep-lung air. Thus, the subject must breathe deeply and blow hard into the device.
At least two samples must be taken, and they cannot differ significantly from each other when compared.