If you have been charged with a DUI offense there are many ways in which you can attack the charge. Although the laws are generally the same, each individual DUI arrest will bring up certain challenges and factual patterns. It would be impossible for us DUI lawyers to give advice about what to do on a case without looking at the police reports and interviewing clients. In this article, I will cover the top 10 ways that DUI lawyers beat cases.
Fighting an Illegal Seizure or Stop
One common way to beat a DUI case is to challenge the reason for the stop in the first place. A police officer has to have a reasonable suspicion that you have or are currently committing a crime when he pulls you over. The Fourth Amendment of the United States Constitution protects against unreasonable searches and seizures.
A “stop” of a vehicle begins whenever a police officer detains an individual. When the police officer signals to pull you over, you are being detained and it is considered a seizure of your person and vehicle. The officer will need to show some specific reason that he pulled you over that he believed constituted a crime.
Some common examples of an illegal stop for a DUI are when a police officer pulls you over for leaving the parking lot of a bar. If you have not committed any traffic infractions, then there is no reason to pull you over. The police officer would simply be making an assumption that you were drinking and that would be an illegal stop. If a judge determines that the stop was illegal, then any evidence obtained from that stop will be thrown out and the prosecutor will have to dismiss the case.
Contesting Observations of the Police Officer After a Stop
When you are being pulled over for a DUI investigation, most police officers are trained to look for certain clues and observations to determine if you have been drinking. Some of the observations that a police officer will look for are; a slurred speech, odor of alcohol, bloodshot/glassy eyes; slowed response, disheveled clothing, and/or confusion about what is going on. Police officers will make notes of all of these observations and record them in their police reports.
When it comes time for trial, the police officer will testify that the clues he observed were reasons that he believed that you were drinking and that is why he arrested you. One common way to beat a DUI is to challenge the police officer on the truthfulness of these observations.
For example, an odor of alcohol cannot determine when an individual drank alcohol, how much they drank, or even what type of alcohol they drank. Bloodshot eyes can be an indication that an individual may be tired and is sleep-deprived. Slurred speech and slowed response can also be an indication of someone who is sleep-deprived. Remember that the point here is to challenge the officer's assumptions based on all the observations. There are sometimes logical other explanations for why a person may exhibit some of these clues and observations.
Fighting Statements Made by a Driver That has Been Detained by Police
One of the most common ways that a prosecutor and police officers will try to prove you guilty of a DUI offense is to use an admission against you. After the police arrest you, they will often question you as to the extent of your drinking. More often than not, people will always be cooperative with the police officers and give them that information.
While it is usually good to be cooperative with the police, what you don't know is that they will use that admission against you later on in court. Because of a landmark case called Miranda v. Arizona all police officers are required to read you your rights before they question you. It is important to know that your rights to remain silent and have a lawyer present will only start when you have been arrested.
If you were arrested then the police have to read you your rights. If you are merely being questioned by the police and investigated, then your rights will not be violated if they didn't read your rights. If a police officer does not read you your rights against self-incrimination and you admit to drinking, then the prosecutor will not be able to use that evidence against you in trial. Knowing your rights and when a police officer violated them is a very important part of any DUI investigation.
Attacking Field Sobriety Exercises
The ability to impeach a police officer on the field sobriety tests is probably the single most important aspect of defending a DUI trial. There are three field sobriety tests that are universally accepted under the NHTSA guidelines. The three tests are the horizontal gaze nystagmus test, the one-leg stand test, and the walk and turn test. Each of these tests has specific instructions and specific ways to score on how well a person has performed on the test.
The field sobriety tests are designed to determine if someone is intoxicated. A field sobriety test will test your mental functions and your physical functions at the same time. When someone is intoxicated, their ability to balance mental and physical functions is decreased. The best way to impeach a police officer is to attack the field sobriety tests and show that either the police officer gave bad instructions or did not score the test correctly.
Contesting the Beath Testing Procedures
A Lot of people believe that if you blow that the case is automatically over. That is simply not true, the police still need to prove that the machine was certified and in working order. As a former prosecutor and currently as a defense attorney I have seen many cases where police did not follow procedures for the breath test and the results were thrown out.
One example I saw was when a police officer did not change the mouthpiece for the person taking the breath test. The client was having a hard time blowing in the machine and the client ended up blowing 6 times using the same breath piece. The police officer is required to change the mouthpiece after three attempts because alcohol particles can get trapped in the mouthpiece and throw off the breath test. There are many ways to attack the breath testing procedure and show that the tests are not valid. Remember that just because you blew does not mean the case is over!
Attacking the Blood Testing Procedures
Another way to attack a DUI case is to contest the results of a blood draw. Often times when a person is involved in a car accident they will be taken to the nearby hospital and that person's blood will be drawn by a nurse or doctor. Once the blood results are in, a prosecutor can subpoena the blood results and use the blood draw against you. Furthermore, a police officer can request that you take a test to determine blood alcohol concentration and send your blood off to a lab to determine the results.
Attacking blood results will usually start with what's known as the chain of custody. Basically, you would contest the blood results by arguing that the prosecutor cannot prove that the blood results are not your blood results. Remember that a police officer himself does not test the blood, he ships the blood off to someone else, and that person will test it and ship it back.
Attacking the chain of custody is saying, how do we know that this is even my blood results? Police officers are required to follow a specific chain of custody procedures to ensure that they are using and testing your blood sample and if they do not follow these procedures, then the blood results can be thrown out.
Fighting a DUI Case Where the Driver refuses a Breath, Blood, or Urine Test
If a police officer takes your blood, breath, or urine without your consent and without a valid warrant then you will have a good argument to get the results thrown out before trial. Remember that you have constitutional rights against any illegal searches and seizures.
The police do not have the right to force you to consent to a blood test or breath test. It is your test to refuse any and all tests and if the police officer violates that right then you can get the results of those tests thrown out as if it had never even happened.
Contesting a DUI Case Where There has Been An Anonymous Report of Drunk Driving
There are plenty of times where police will get an anonymous call about a drunk driver and based on this tip, the police will then pull over a vehicle. Remember that before you can be pulled over, the police officer will need some reasonable suspicion to believe that you have committed or are committing a crime.
If the tip was not reliable and the police officer does not see any bad driving then you can challenge the stop of your vehicle based upon the unreliability of the anonymous report. This happens all the time and what a police officer should do is to follow the vehicle and wait to see if there are any reasons to believe that the person may be drunk and driving (i.e. swerving).
Attacking a Case Through the Right of Speedy Trial
A common way to beat a case is to invoke your right to a speedy trial. In Illinois, if you demand a speedy trial then the prosecutor has 160 days to take the case to trial or the case will be dismissed. If you are stuck in jail during and awaiting trial, then the prosecutor has 120 days to take the case to trial.
This approach is more common when there are multiple witnesses or if you find out that a key witness is missing or sick. Typically, in hospital blood draw cases or accident cases where the officer never saw the drivers of the vehicles, you can a speedy trial demand and if the prosecutor does not get the witnesses in time or the witnesses refuse to show up the case will get dismissed.
Fighting a DUI Case by Negotiating With the Prosecutor
Remember that taking a case to trial will alwasy be risking losing the case and the judge sentencing you to jail time or your licenses getting revoked. DUI cases come with steep penalties and every single person is different and can accept a different level of risk. Sometimes negotiating to get an acceptable or a good deal for you is much better than the risk of losing the trial.
Some common ways to negotiate are to negotiate to get the charges reduced to a reckless driving charge or to get your license back if you plea guilty. Typically a prosecutor will be more willing to negotiate if you have a clean background and have never gotten in trouble before. It is important to at least negotiate with the prosecutor so that you know what the offer from them is and then from there you can still fight the case. It is always a good idea to get an offer from a prosecutor so that you have more options.
Contact Our Attorneys to Review How You Can Beat a DUI Case
As you can see, there are many ways that you can fight and beat a DUI case. These ten are by far the most common ways that you will see DUI cases fought on a day to day basis. It is important to consult with your attorney and give them all the information about what happened.
After your criminal defense attorney has all the facts, they should be able to determine which way is the best to take your case. Sometimes you can try a few of these methods in one case and sometimes you may want to just take the case straight to trial or try to work out a good deal.
Every case is different and your attorney should be getting your background information to better determine your acceptable risk levels. If you or a loved one has been charged with a DUI and you would like to further discuss how we can attack your DUI charge feel free to call our offices at (312) 756-8652.