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DUI Defense Strategies

According to the National Highway Traffic Safety Administration, roughly 1.5 million people are arrested for driving under the influence each year. However, with the help of an experienced attorney, many individuals have the opportunity to get their charges reduced or even dismissed.

There are seven key strategies commonly used by attorneys to successfully challenge a DUI charge:

1.  Improper breath, urine or blood test

Two-sample rule 

At least two breath samples should be collected in a short period of time, and the results must be similar. Additionally, the two samples collected must have a differential of no more than .02. If the officer fails to adhere to this administrative rule, any breath test evidence may be suppressed.

15 minute rule

The officer should wait 15 to 20 minutes before administering a breath test, making sure the suspect doesn’t burp, vomit, or place anything in the mouth. This could introduce stomach alcohol into the mouth, resulting in an inaccurate test result. Failure to follow this rule can result in the suppression of the breath test evidence.

Improper training or equipment 

Breath tests are often administered by unqualified personnel, or using a test machine that has not been properly inspected or calibrated. In both cases, the evidence may be suppressed.

Warrants for blood or urine tests 

Suspects are not legally required to submit a blood or urine test without a warrant. A clear chain of custody from collection to analysis must be proven, or bodily fluid test results can easily be challenged.

2.   Reasonable suspicion

In accordance with the Fourth Amendment of the Constitution, an officer must have reasonable, articulable suspicion — or reason to believe that a crime has already taken place, is currently taking place, or is about to take place — in order to pull someone over. If that cannot be established, an attorney may challenge the stop. 

3.   Illegal checkpoint

There are clear policies in place for running a sobriety checkpoint. If an officer does not follow proper protocol, the roadblock is considered illegal, and evidence may be suppressed under the exclusionary rule.

4.   Miranda warnings were not administered

As per the Fifth Amendment, Miranda warnings must be administered to a suspect upon arrest and prior to questioning. If an individual is arrested without being Mirandized, evidence obtained during questioning is inadmissible.

5.   Flashlight test was used

Many police officers test for horizontal gaze nystagmus (HGN) (involuntary eye jerking) by shining a flashlight directly into the driver’s eyes. If the officer is not a field sobriety HGN expert, results of the test may be considered non-expert testimony.

6.   Driver fatigue or involuntary intoxication

Many drivers who appear to be intoxicated are actually tired. If a blood alcohol test was not administered, or if the defendant suffers from certain medical conditions, the case may be dismissed.

Similarly, if a defendant can prove that a substance was taken against his/her will, by accident, or that a medically-prescribed drug unexpectedly caused intoxication, the defendant may be able to prove involuntary intoxication.

7.   Inoperable Vehicle

A driver must be in physical control of a fully operable vehicle upon apprehension. If the vehicle is broken or otherwise inoperable, he or she cannot be prosecuted. 

Authors: Steven Budke & Nicolas Leverson

Leverson Budke, PLLP

DISCLAIMER: This article should not be regarded as constituting legal advice in relation to particular circumstances. This article is merely a general comment on the relevant topic. 

Published on 22nd November 2017
(Last updated 21st March 2018)

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