Not everyone who is stopped for DWI/DUI is guilty. There are several circumstances that an experienced and knowledgeable DWI/DUI attorney can argue are illegitimate for a successful DWI conviction.
Here are 12 of the most common strategies successfully used by DWI/DUI attorneys.
- The police stopped a motorist for no reason
Under the Fourth Amendment of the US Constitution, police must have a valid reason for stopping a motorist. Without a valid reason—such as probable cause that the motorist has committed, is committing, or is about to commit a crime, the individual may challenge the legality of the stop. Another common challenge to the legitimacy of a traffic stop is if the motorist was in a bad, high-crime neighborhood. Simply being in a high-crime area does not provide the necessary probable cause for police to pull someone over.
- A motorist was arrested and questioned without having been read his/her Miranda warnings.
Under the Fifth Amendment, police must administer the Miranda warnings before questioning any suspect to prevent self-incrimination. Even for a simple question such as how many drinks a stopped motorist may have had or whether the motorist felt impaired, once an individual is arrested, s/he must be Mirandized or any evidence obtained directly from the illegal questioning will be thrown out of court.
- The officer declared a motorist was drunk after shining a flashlight in his/her eyes.
One tell-tale sign of an intoxicated driver is horizontal gaze nystagmus—or involuntary eye jerking. When an officer shines a penlight into a suspected drunk driver’s eyes, this is what the officer is looking for, and a field sobriety expert can determine an approximate blood alcohol content (BAC) based on the angle at which the eyes begin to jerk. However, if a police officer who is not a recognized field sobriety horizontal gaze nystagmus expert makes such a determination, the evidence can be thrown out of court as non-expert testimony.
- The officer didn’t wait and observe the motorist for the required 20 minutes before administering a breath test.
Before administering a breath test, a police officer is supposed to watch the subject for 15-20 minutes to ensure s/he doesn’t burp, belch, vomit, or place anything into his/her mouth to ensure that any stomach alcohol isn’t introduced into the mouth. Because stomach alcohol is at a higher concentration, introduction of this alcohol into the mouth can result in a false high BAC. In many cases, officers do not actually observe the subject for the full 20 minutes to ensure that the above doesn’t occur. Non-compliance with this rule, in addition to additional evidence of contamination, can result in suppression of the breath test evidence.
- The officer didn’t administer a second breath test within a reasonable amount of time.
To ensure validity, at least two samples of a subject’s breath are collected. Not only must the results be relatively close, but they must also be given within a reasonable amount of time. Failure of the police to comply with this administrative rule may result in suppression of the breath test evidence.
- The breath test operator was improperly trained and/or uncertified to give the test and/or the breath machine was improperly maintained or calibrated.
If the breath test was administered by someone who is not properly certified to do so, the evidence can be suppressed. Further, all breath test machines must be inspected regularly to ensure they are properly calibrated. If the police department cannot prove it has properly maintained its breath machines then the breath tests may be suppressed.
- The officer took a blood/urine sample without a warrant.
Recent US Supreme Court case law has held that due to the intrusiveness of a blood or urine test for alcohol, a warrant is necessary. Thus, a suspect cannot be charged with refusing to adhere to the state’s implied consent law for not succumbing to a warrantless blood/urine test. This is not the case, however, with a breath test as the Court has held that a subject may not refuse a breath test.
- A motorist was stopped at an improperly run DWI checkpoint.
Police must adhere to policies and procedure when setting up and running sobriety roadblocks. If this isn’t the case, the checkpoint would be illegal and evidence seized as a result can be suppressed under the exclusionary rule.
- The vehicle was inoperable or otherwise broken.
Under state law, the defendant must be in actual physical control of a vehicle to be successfully prosecuted for DWI/DUI. If, however, the vehicle was broken or otherwise inoperable then this element cannot be proven adequately to obtain a valid conviction.
- The driver was not intoxicated, just tired.
Even though sleep deprivation can mimic the actions of a drunk driver, driving while tired is not a crime. Evidence that the defendant was tired and not drunk—such as lack of a BAC test—can result in an acquittal or dismissal. Similarly, if the defendant has a legitimate medical condition that may mimic drunk driving, then the case can be dismissed.
- The police did not follow proper chain of custody procedure for a blood/urine test.
Without a clear chain of custody from collection until analysis, a good attorney can successfully challenge fluid tests.
- The motorist was involuntarily intoxicated and, subsequently, arrested for DWI/DUI.
To bring a successful involuntary intoxication defense, a defendant must prove that s/he was compelled to take the substance in question, was innocently mistaken as to the nature of the substance, was drugged without his/her knowledge, or became unexpectedly intoxicated from taking a medically-prescribed drug. The burden of proof is on the defendant to prove involuntary intoxication.