DUI Defenses There's No Alternative

How to Identify Your Best DUI Defense

A police officer pulls you over, smells alcohol on your breath, asks you to perform field sobriety tests, arrests you for DUI, and gives you a breath test that you fail. What is your best defense to the charge?

Common DUI Defenses

A number of defenses are available to impaired driving offenses in California. Some defenses depend on why the police stopped your vehicle and arrested you. Other defenses may depend upon whether you are charged with driving under the influence (DUI) or driving with a prohibited blood alcohol concentration (0.08 or above). A capable lawyer will consider all possible defenses.

Unjustified stop

Any analysis of a DUI case begins at the moment the police decided to stop your vehicle. Although the police in California are allowed to set up sobriety checkpoints, detentions at checkpoints are valid only if the police follow established guidelines. The failure to follow those guidelines may give you a defense.

To stop a vehicle at any place other than a checkpoint, an officer must observe a traffic law violation (such as speeding) or witness enough bad driving to justify a reasonable suspicion that the driver is under the influence. When police rely on slow drifting within a traffic lane or the failure to signal a turn as the justification for stopping a vehicle, a careful cross-examination of the officer often reveals that they had no legal basis for performing the stop.

Prolonging the stop

If the stop was valid, the next question is whether the officer was entitled to prolong the stop by asking the driver to perform field sobriety tests. Many officers rely on the “odor of alcohol” even though pure alcohol has no odor. On cross-examination, they will admit that even one sip of beer could produce an odor they associate with alcohol. On the other hand, the smell of beer combined with glassy eyes and slurred speech probably entitles the officer to order the driver out of the car. If an officer who was eager to make an arrest cannot justify his or her request for field sobriety tests, that mistake might lead to dismissal of the charge.

Field sobriety tests

Your lawyer will next look at your performance on field sobriety tests. In some cases, they are recorded on the squad car’s video camera. That makes it difficult for the police to exaggerate mistakes that the driver made during the evaluations. If the video shows that you understood and followed the officer’s instructions and maintained your balance while performing the evaluations, a judge might conclude that they should not have arrested you.

Police often rely on a test of horizontal gaze nystagmus (HGN) as evidence that a driver is over the limit. The HGN test asks a driver to follow a finger or a pen with his or her eyes as it moves back and forth. If your eyes begin to jitter before they reach a certain point, the jittering is taken as evidence that you are over the limit. The HGN results will not show up on a video, but most officers have difficulty explaining when they are subjected to cross-examination. Some judges regard the HGN as having about as much scientific validity as voodoo and attach no importance to HGN tests when the police cannot recall the precise procedures that must be followed to achieve a valid result.

Breath and blood tests

In some cases, the officer will request a preliminary alcohol screening (PAS) test before making an arrest. When it is used to establish probable cause to arrest, the PAS is optional, although officers frequently fail to advise drivers of their right to refuse.

An officer’s conclusion that a driver failed field sobriety tests will generally result in the driver’s arrest. California’s implied consent law requires the driver to submit to a breath or blood test after an arrest if the officer requests one. If a PAS is administered after an arrest, the results may be admissible as evidence in a trial. When that happens, an experienced DUI attorney can call attention to problems with the device that might affect its reliability, including its inability to screen out mouth alcohol. Maintenance records sometimes show that the PAS device was not recently calibrated. In some cases the officer’s training was deficient, leading to improper examinations.

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Officers are supposed to watch the driver carefully for 15 minutes before giving any breath test that is intended to be used as evidence in court. The observation period is meant to assure that a burp does not bring stomach contents into the mouth, resulting in an artificially high result. Many officers will instead use that time period to make notes or chat on the radio. Again, careful cross-examination can undermine the test results.

A breath or blood test subsequently administered at a police station may be more reliable than a PAS, but significant time often passes between the time of driving and the time that test is administered. If a driver was stopped shortly after taking a drink, the driver’s blood alcohol level may have been lower at the time of driving than at the time the driver’s breath was tested at the police department. When blood is drawn, the delay involved in taking the blood sometimes precludes the use of the results in court.

Trial defenses

Even if a judge finds that the stop and arrest were justified and that test results can be used as evidence, the prosecution still needs to prove guilt beyond a reasonable doubt. All of the problems with test results mentioned above can be raised before a jury.

A lawyer experienced at cross-examination can often force a police officer to admit that the driver was functioning well. If you produced your driver’s license without fumbling through your wallet, answered questions correctly and promptly, exited from your vehicle without losing your balance, and performed the field sobriety tests reasonably well, minor flaws in your field test performance may not convince a jury that you were under the influence. A lawyer who knows how to undermine the validity of breath or blood test results can use your apparent sobriety to create reasonable doubt that produces an acquittal.

The Dangers Of A Common Defense

You should be concerned if a lawyer tells you that he or she has a DUI defense that never fails. Experienced attorneys understand that there is no “one size fits all” defense to charges involving impaired driving. A good lawyer will examine every aspect of the case, from the moment the arresting officer first noticed your vehicle or stopped you at a checkpoint to the moment you are released from custody.

It is dangerous to rely on one defense in a DUI case if a number of defenses can be raised prior to trial. It often makes sense to file several motions challenging the evidence that the police acquired. If those motions result in the suppression of crucial evidence, the case will be probably be dismissed.

Formulating A Winning Defense

Many cases are won by filing a motions before trial. On the other hand, if the case proceeds to trial, a skilled lawyer will formulate a more focused defense. A “shotgun” approach at trial may be viewed as a sign of desperation.

Fashioning a winning defense begins with a careful analysis of the facts. Deciding where to focus a trial defense requires knowledge that comes from experience. Trying to shoehorn the same defense into every case will rarely produce a good outcome. Seasoned lawyers understand that a winning DUI defense must be tailored to the unique circumstances of your case.

Arrested in Orange County? Call (888) 250-2865 to receive assistance in Orange County, Los Angeles, San Diego, or Riverside from a skilled DUI lawyer with years of experience defending alleged drunk drivers. Call today to obtain a free case evaluation.


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