DUI DEFENSE
STRATEGIES GUIDE
FIND OUT WHAT TYPES OF INFORMATION YOU
SHOULD BE GATHERING RIGHT NOW
TOP DUI DEFENSE STRATEGIES AND
INFORMATION YOU MUST KNOW!
Disclaimer: Ratek Group, Inc. is not dispensing legal advice and in no way represents any information offered
as legal advice. No legal advice is offered from this information guide in any way, shape or form. You should
consult a qualified attorney before making any legal decisions about your future. The information contained
herein is meant for educational purposes and the results and the performance of the information is the sole
responsibility of the reader.
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Table of Contents
TABLE OF CONTENTS............................................................................................... 3
FOREWORD WHAT YOU DON’T KNOW CAN HURT YOU ........................................... 4
CHAPTER 1 CREATE AN EVENTS JOURNAL ................................................................ 7
CHAPTER 2 LEGAL DEFINITIONS AND POTENTIAL TECHNICALITIES ............................. 10
CHAPTER 3 TOP DUI DEFENSE STRATEGIES ........................................................... 15
CHAPTER 4 OFFICER DISCIPLINARY ACTION & CHARACTER HISTORY ........................ 28
CHAPTER 5 POLICE DEPARTMENT COMMUNICATION RECORDS ................................. 30
CHAPTER 6 MONEY WINS CASES ........................................................................... 32
SUMMARY............................................................................................................. 34
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FOREWORD
What You Don’t Know Can Hurt You
Whether or not you intend to hire an experienced DUI lawyer to represent
you in your pending DUI case, plan on representing yourself in court or
qualify financially to have a court appointed public defender, it is
extremely important for you to learn as much as you possibly can about
your states drunk driving laws and how they relate to your situation.
Everyday drivers are wrongfully trapped and arrested under the
legislature’s broad and vaguely defined drunk driving laws. To presume
that a person is intoxicated at a prescribed blood alcohol concentration
level is not necessarily applicable to every driver. Driver’s who have a
higher tolerance level can drive without exhibiting any signs of
impairment, but this is extremely difficult to prove and very expensive to
fight.
In this day and age it is becoming more and more the norm for juries to
convict a person on a drunk driving charge based solely on the chemical
test results exceeding the legal limit, rather than full examining the
scientific evidence that has been presented to them that refutes the test
validity.
The proposed defense strategies outlined in this guide, if properly followed
and implemented, will improve every person’s chances of walking away
from a drunk driving charge without the stigma of a criminal conviction.
The first thing we recommend you do is to read the entire guide to get an
understanding for what is contained within these pages.
Then once you have read through the guide once, start thinking about
the various defense strategies that have been outlined and how they
might fit into your defense strategy.
Each and every DUI case is unique from both a legal and factual
standpoint. The DUI system is not a one size fits all scenario. It is impossible
to provide definitive solutions to every legal issue a person may face in
their case within this guide.
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A lot of people who have been charged with DUI take the standpoint of
“yeah I was drunk and I shouldn’t have been driving, I can’t afford a
lawyer to defend me in court, so I’m just going to represent myself and
plead guilty”. Sound familiar?
Pleading guilty to a drunk driving charge may seem like the quick and
easy way to get the situation over with, but that thought process couldn’t
be further from the truth. What most people don’t think about in this
situation is their future and the potential impact on their future if they
plead guilty.
Pleading guilty to a drunk driving charge in a lot of states can mark a
person for life. A large number of states DO NOT ALLOW EXPUNGEMENT IF
A PERSON PLEADS GUILTY TO A DRUNK DRIVING CHARGE.
If you care about your future and want to be able to expunge your DUI
charge from your criminal record after you have completed all of the
court appointed punishments, then you need to stop and think about the
potential ramifications of pleading guilty and whether or not your state
allows expungement of DUI records if a person pleads guilty.
Pleading guilty will result in the maximum penalties and fines being
assessed, whereas pleading not guilty can result in the penalties and fines
being reduced or even having the charge dropped. If you plead not
guilty and do not win, the worst thing that can happen is that you receive
the maximum penalties and fines, but you will still have the option of
expungement down the road depending on which state your DUI
occurred in.
Remember that asserting your legal rights and pleading not guilty does
have its consequences. It will require an extensive time commitment and
can be a very nerve-racking experience. However, this commitment is
nothing compared to the costs you may face if convicted.
As with any method or strategy, information alone won’t make you
successful. You have to put your mind and heart to work. To achieve
success, you must have knowledge, determination, and persistence.
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Please understand that the defense strategies that are outlined in this
guide are just that, an outline and overview of the possible defense
strategies. This guide in and of its self is not going to win your case; you
must put in the time and effort to learn as much as you possibly can in
order to help yourself.
What this guide will do for you, is to open your eyes to a lot of information
that you would never have known about if you hadn’t purchased this
guide.
We are not going to preach to you about why it is so important to hire an
experienced DUI lawyer to represent you in court. That is not the purpose
of this guide. The purpose of this guide is to give you an overview of
possible defense strategies that work.
It is up to you to research each of the strategies that have been outlined
that you feel might be viable defense strategies in your case. If you have
hired or intend to hire a DUI lawyer to represent you in your defense, then
good for you, you have taken a major step towards a successful defense.
But, even if you have hired a DUI lawyer to represent you in court, you still
owe it to yourself to learn as much as you can about the possible defense
strategies and how they might apply in your case. Don’t leave anything to
chance.
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Chapter 1
Create an Events Journal
The first thing you are going to want to do after being released from
police custody is to create a journal of the days events leading up to your
arrest and everything you can remember from the time you were stopped
until the time you were released from jail.
When I say everything, I mean everything. I recommend using a spiral
bound notebook as your journal. That way everything is organized in one
place and you won’t be hunting for loose notes. The smallest details can
make a difference. Start your journal entries approximately 24 hours
before the DUI stop.
Start by documenting your sleep pattern
1. When did you go to sleep the night before?
2. How many hours of sleep did you get?
3. How many hours had you been awake before the DUI stop?
Document your eating & drinking patterns
1. What did you have for dinner the night before?
2. Did you have any snacks before going to bed? What was the
snack?
3. What did you have for breakfast in the morning?
4. What did you have for lunch the day of the arrest?
5. What did you have for dinner the day of the arrest?
6. Did you have any snacks in between meals? What were those
snacks?
7. Don’t forget to include what you drank with each meal and in
between meals. How much milk, soda, juice, water?
Document who, what, when and where
1. Who were you with before the stop?
2. What were you doing before the stop?
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3. Was anyone in your vehicle during the stop?
4. Where did you go that day and what did you do at every place
that you went? (Write down the exact times of each event)
5. Were there any witnesses at the stop?
6. What are the names of the police officers you dealt with during the
stop and at the police station?
7. What was the name of the person who conducted the official
breath, blood or urine test at the police station?
8. Is the person who conducted the official test licensed by the state
and approved to administer a chemical test?
Journal layout
What I recommend doing instead of just jotting down a bunch of random
notes that you or your lawyer won’t be able to make heads or tails of later
on, try to write each of your journal entries using the same consistent
pattern.
Start by writing down the date, the time, the place and then below that
line write down a detailed description of who, what, where, when, etc.
Example:
Date: 02/20/2009
Time: 10:30 p.m.
Place: My apartment
Details: At 10:30 p.m. the night before the arrest I went to sleep and slept
until 5:30 a.m. the next morning. Seven hours of sleep the night before the
stop.
Date: 02/20/2009
Time: 5:30 a.m.
Place: My apartment
Details: Morning shower and shave routine.
Date: 02/20/2009
Time: 5:50 a.m.
Place: My apartment
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Details: Prepared 2 eggs, 2 pieces of bacon, 2 slices of wheat toast with
butter and had two 8 ounce cups of black coffee.
Date: 02/20/2009
Time: 6:30 a.m.
Place: Freeway
Details: Left my apartment at 6:30 a.m. and drove to work. Traffic was
fairly heavy this morning and I was quite tense by the time I arrived at
work.
Date: 02/20/2009
Time: 7:00 a.m.
Place: Work
Details: Arrived at work. Grabbed a cup of coffee from the vending area
and proceeded to my cubical….
I think you get the idea here. You want to be as detailed as possible. Do
not leave anything to chance. I know this may seem like a trivial thing
and a waste of your time, but when out of the blue your lawyer or worse
yet, the prosecuting attorney asks you what you did leading up to the
stop and you can tell them in detail as to what you did, that’s huge!
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Chapter 2
Legal Definitions and Potential
Technicalities
In this chapter you are going to learn the meanings to a number of legal
definitions that you are going to hear over and over, from both your
lawyer and during your trial.
Legal Definition of Driving
The first legal injustice is that actual physical control of a vehicle is not
always necessary for a drunk driving conviction. To constitute driving,
there is usually a requirement that the driver have sufficient control over
the vehicle.
Example:
A guy and his buddy drove their car into a ditch, burying it in mud. While
the two guys were trying to dislodge the car from the mud a police officer
arrived on the scene. The officer charged the person behind the wheel at
the time, while the car was in the ditch with DUI.
Even though the vehicle was inoperable at the time and there was no
proof that the person behind the wheel was the one who was driving the
vehicle while it was on the road, the court upheld the conviction claiming
that the driver had sufficient control of the vehicle.
Engine Running
In the eyes of the court, a running engine constitutes sufficient control of a
vehicle.
Example:
A person is driving down a highway when another motorist calls the police
and informs them of the potential drunk driver. An officer waits for the
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suspect vehicle to approach their position from down the road, the officer
then observes the driver’s behavior and if in his opinion the driver’s actions
warrant a stop, the officer will initiate a DUI stop.
Informants have become an important tool for police in the battle against
drunk driving, but it is not enough for someone to phone in and inform the
police of a drunk driver. The officer must observe first hand, actions that
are consistent with drunk driving in order to initiate the stop.
Witness Evidence
Another scenario involves the legal impact of not having corroborating
evidence to substantiate the motorist’s version of the events. The best
corroboration is eyewitness testimony or video recordings.
Example:
An officer arrives on the scene of a one-car accident; a cameraman from
a hit television show is along for the ride. The officer arrested the driver for
drunk driving. When the case went to court the officer was adamant
about the driver’s intoxication at the time of the arrest, but the videotape
from the in car camera and the cameraman’s camera was enough to
prove to the jury that the defendant was sober and the charge was
dismissed.
By excluding the witness from the list, the prosecutor basically allowed the
defendant to be acquitted in this case. If the witness had not been
excluded from the list, the defendant surely would have been convicted.
When you’re at the police station and you are given your one phone call,
the person that you called should be questioned. If for instance you
happen to have contacted your lawyer and if the lawyer’s testimony
would be favorable as evidence in the case, then the testimony should
be used in your defense. A testimony like this can be highly persuasive in
a trial.
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Place the Defendant at the Scene
In certain circumstances, the prosecution must place the defendant at
the scene and often behind the wheel, to be able to prove the “driving”
element of a drunk driving offense.
Example:
An officer arrives on scene to an accident where the alleged drunk driver
has left the scene of the accident. Even later when the driver is caught,
he volunteers incriminating information, but the prosecution must still
provide evidence that the person in question was actually driving the
vehicle at the time of the accident in order to charge the defendant with
DUI.
Note: Current drunk driving laws make it nearly impossible to disprove
driving, especially if the defendant is the sole occupant of the vehicle or
lacks any corroborating evidence to the contrary. Although the
prosecution may file drunk driving charges on these technicalities,
obtaining a conviction is entirely a different matter.
Proving Intoxication
Most states will use two methods of proving intoxicated driving, an
objective test and a subjective test. From a defense standpoint, it is much
easier to refute the subjective test evidence because the subjective test is
based entirely on non-scientific evidence. In either case, it is important for
you to understand both aspects of determining intoxication.
Objective Test
The objective test is the chemical test that you submitted to at the police
station. This test involves both scientific and medical evidence in order to
establish the defendant’s blood alcohol concentration level.
The equipment used to calculate your BAC level monitors the body
specimens of blood, breath or urine. Testing reliability depends on a
number of factors, but generally the breath test result is considered the
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least reliable and easiest to refute. The blood test is considered the most
reliable.
Subjective Test
The subjective test utilizes sensory perceptions to identify and describe
intoxicated behavior. Testimony from the arresting police officer is based
solely on his training in detecting the indicators of intoxication in a
defendant.
Subjective indicators are:
•
•
•
•
•
•
Bloodshot or watery eyes
Smell of alcohol
Unsteady balance
Flushed face
Slurred speech
Despondent or excited behavior
It is fairly easy for an experienced DUI defense lawyer to refute any
subjective evidence because the defendant can present logical
explanations for the alleged intoxicated behavior.
BAC Levels When Driving Occurred
The key to prosecuting a drunk driving case is proving the motorist’s BAC
level at the time of driving. For a conviction to happen, the driver must be
legally at or above the legal limit at the time of operating a motor vehicle.
From a defense standpoint this is referred to as the rising BAC theory.
For instance, if more than two hours lapse between the time you were
actually driving and the time of the official chemical test, your defense
lawyer can often show that your BAC level was below the legal limit at the
time of driving. Since the human body continuously metabolizes alcohol,
any extended delay can dramatically alter the BAC level.
Also any consumption of alcohol after the alleged driving will skew the
BAC readings.
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Example:
The police were called to the scene of an accident, but were slow in
arriving, so the defendant walked over to a nearby bar and consumed
some more alcohol. The BAC reading showed that the person was above
the legal limit, but some of the alcohol was consumed after the accident.
Even though the prosecutor will infer that the defendant consumed
alcohol in an attempt to distort the results of the chemical test, the
defendant can offer expert testimony to verify that many individuals resort
to alcohol to calm their nerves after a harrowing experience such as a an
accident.
No defense lawyer would ever advocate the consumption of alcohol
solely to avoid a drunk driving charge, but it has happened and
defendants have successfully used this defense scenario.
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Chapter 3
Top DUI Defense Strategies
Below is a list of top DUI defense strategies that you and your DUI defense
lawyer might use in your case. Not every one of these defense strategies
applies to every case. As you go through the list, think about which of
these strategies might apply to your case and make a note in your journal.
Once you’ve hired an experienced DUI defense lawyer to represent you
in your defense, you are going to want to meet with him or her and go
over your list of potential defense strategies that you feel might apply and
to also hear what your lawyer thinks your defense strategy should be.
Doing this will accomplish two things:
1. It will show your lawyer that you are doing research on your own
and are well informed when it comes to your options and that you
are very serious about winning your case.
2. You might very well give your lawyer a possible defense strategy
idea he or she hadn’t thought about until you brought it up.
Note: Create a separate page in your journal to list all of the possible
defense strategies that you think might apply in your case so that you can
discuss them with your lawyer. Title the page “Possible Defense
Strategies”.
Caveat: The DUI prosecutor is going to point to several pieces of evidence
that suggest that you were in fact driving under the influence:
1.
2.
3.
4.
5.
Poor navigation of your vehicle.
An odor of alcohol flowing from the vehicle and your breath.
You appeared to be intoxicated.
Poor performance in the field sobriety tests, if you took them.
The official result of the breath, blood or urine test.
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Each one of these pieces of evidence are ambiguous, subject to multiple
interpretations, unreliable and based on faulty assumptions and are open
to attack from the defense.
Top Defense Strategies
GERD or heartburn caused a false high reading on the breath test:
Suffering from acid reflux or heartburn can “fool” the breath machine,
causing an inaccurately high reading of the blood alcohol level. The
breath machine is supposed to receive and measure alcohol from the
deep lung tissue, a region of the lungs called the alveoli.
Breath alcohol concentration from this “alveolar air” is thought to
correlate with blood alcohol concentration. But acid reflux can cause
alcohol to travel from the stomach back to the throat and mouth. When
this happens, the DUI suspect blows this “mouth alcohol” (rather than
alveolar air alcohol) into the breath machine.
The machine then provides a reading much higher than the DUI suspect’s
true BAC level. A person with a true BAC of say .05 can read as high as
.20 in this situation.
Even if you don’t suffer from acid reflux, if you had consumed a large
meal, a greasy meal or a spicy meal, these can also cause false BAC
readings. Also if you happen to “burp” or “belch” prior to the test, the
officer is suppose to wait 10 minutes before administering the test
because “burping” or “belching” also creates this condition.
The officer failed to read you your Miranda Rights
By law the arresting officer must advise you of your Miranda Rights in a DUI
case if:
1. You are in custody
2. The officer questions you to try and elicit an incriminating response.
Basically any incriminating responses you gave prior to being read your
Miranda Rights will more than likely be excluded from evidence.
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Weaving within your lane does not justify a DUI stop
A large number of DUI stops occur because the officer claims to have
observed the suspect weaving within their lane of traffic, perhaps the tires
touched the lane divider, or you briefly encroached into the other lane.
Courts have ruled that this usually does NOT justify a DUI traffic stop unless
an “experienced officer” observed, “a pronounced weaving” for a
“substantial distance”. If the court finds that the traffic stop was not
justified, the entire DUI case will most likely be dismissed.
When the court says an “experienced officer”, that is open to contention.
You and your lawyer need to look into the officer’s background. What
qualifies him as an “experienced officer”?
Alcohol on your breath does not mean that you were under the influence
When the officer gives his explanation to the court as to why he believes
you were drunk, the officer almost always mentions smelling “a strong
odor of alcohol on the defendant breath”.
But on cross-examination, the officer will look foolish when he admits to
your lawyer that alcohol itself has no odor. Rather, it is the mixing agent or
flavoring that produces the odor people typically associate with alcohol.
Laboratory studies show that an officer’s perceptions of how strongly a
person’s breath smells of alcohol simply doesn’t correlate with the
person’s blood alcohol level.
The only assumption that the officer can make from the odor of alcohol
on the breath is that the suspect probably consumed some alcohol
recently. But it does not provide evidence that the person drank enough
alcohol to be “under the influence” or to have a BAC level of .08% or
greater.
The officer lacked probable cause for the DUI arrest
After conducting the roadside DUI investigation, the officer can only arrest
you, if he or she has probable cause for the arrest. This means that the
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evidence must rise to a level in which a reasonable police officer would
believe that the crime of drunk driving has been committed.
You are entitled to a special court proceeding called a “suppression
hearing” in which a judge decides whether or not the officer had
probable cause for the arrest. At the hearing, the officer testifies and is
cross-examined by your lawyer.
After all the testimony is heard from the officer, the judge will decide
whether or not the arresting officer lacked probable cause, then the
subsequent breath or blood alcohol test is excluded from evidence.
Often times in a situation like this the entire case is dismissed.
Typically a judge will side with the prosecution at the suppression hearing,
finding that probable cause did exist. That’s ok, what this hearing is really
about is allowing your lawyer to cross-examine the officer and confront
him about the problems with the DUI investigation.
This examination often leads to the prosecution either reducing the
charge or to settle the DUI case on terms more favorable to the defense.
Innocent explanations for your faulty driving
Perhaps the officer saw you swerving for a short distance or making a
wide turn or maybe drifting out of your lane momentarily. The reality is
that even sober drivers engage in these types of driving miscues all the
time.
Think about it for a moment, how often do you see a car drifting around in
the lane, only to look over and notice the driver on a cell phone or trying
to text message while they are driving? Everyone has been guilty of
behavior like this at one time or another.
The alleged signs of DUI are actually signs of fatigue
Many of the “typical” symptoms associated with DUI can just as easily be
explained by fatigue. Sheer exhaustion will cause you to drive poorly, to
have bloodshot and watery eyes, to respond slowly to some of the
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officer’s questions and to struggle with the field sobriety tests, which
require extreme vigilance and good coordination in order to pass.
Driving while exhausted can easily be confused with the symptoms of
driving under the influence of alcohol. Your lawyer must emphasize to the
court these non-alcohol-based explanations for the officer’s observations.
Your blood alcohol level was rising
It’s not uncommon for a DUI suspect to blow a .15 at the police station,
but to have only registered a .07 BAC when he got pulled over. How can
this be? Because alcohol takes anywhere from 50 minutes to 3 hours to
fully be absorbed into your bloodstream (the length of time depends on
the person) and create your peak blood alcohol level.
This is very critical if the DUI stop occurred relatively soon after you finished
drinking. You may have been a mile from your home when you were
stopped and blew a .07 blood alcohol level, but then over an hour later
at the police station you blew a .15 blood alcohol level. In a case like this
you would have been home before you reached the legal limit.
The prosecution must prove that your blood alcohol level was .08 or
greater at the time of driving. There is no law against having a .08 or
greater blood alcohol level while you were at the police station.
15-minute to 20-minute observation period not followed
Depending on the state, the officer must observe the DUI suspect
continuously for at least 15 to 20 minutes (varies by state) prior to
administering the roadside breath test. The officer must make sure that
during this period the suspect does not consume anything, burp, belch,
hiccup or regurgitate.
Officers rarely (and I mean rarely) follow this required observation
procedure. Officer’s usually perform paperwork, write reports, setup the
Breathalyzer and converse with any fellow officers who happen to be on
scene, all the time their attention is being diverted away from the suspect
who must be watched vigilantly during this period. Failure to follow this
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procedure casts doubt on the validity of the test result and can
sometimes get the test thrown out of court.
Inherent error rate in DUI blood and breath testing
Let’s assume that the maintenance and calibration of the machines are
perfect, the breath or blood test is administered exactly according to
procedure and no background or physiological factors exist that would
produce false results (the above scenario is extremely rare).
There is an inherent error that exists in both testing procedures. Most
experts agree that the inherent error rate is about +/- .02 for DUI breath
testing and +/- .005 for DUI blood testing.
So even if you blew a .09 at the police station, given the +/- .02% your
actual blood alcohol level could have been as high as .11 or as low as
.07; which is below the legal limit.
The officer had no baseline for your performance on the field sobriety tests
The officer will probably claim that you “performed poorly” on the field
sobriety tests and that this serves as evidence of your impairment. But you
performed “poorly” compared to what? This claim means very little
without knowing how you would perform the tests in a sober state.
How well a person performs the field sobriety tests depends on many
factors:
•
•
•
•
•
•
•
Natural level of coordination and equilibrium
Natural level of balance
Fitness level
Composure in the face of pressure
Injuries
Age
Weight
You get the idea; I could go on and on.
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Factors other than alcohol can cause poor performance on the field
sobriety tests
Even if you performed less than perfectly on the field sobriety tests, this
may be attributed to unfair test conditions such as:
•
•
•
•
•
The distraction of flashing lights and traffic whizzing past.
The test area being too dark or amidst glaring lights.
Cold temperatures rain or wind.
Unstable footwear such as boots, high heels or dress shoes.
Nervousness, anxiety or frustration.
Note: It should also be mentioned that a lot of times if a suspect is wearing
inappropriate footwear like high heels, the officer may suggest removing
the shoes to perform the tests. This can also invalidate the test if the
suspect is not use to being barefoot outdoors.
The standardized field sobriety tests were not properly administered
The National Highway Safety Transportation Administration devised the
national standards for how officers are supposed to administer the three
standardized tests:
1. The horizontal gaze nystagmus test
2. The walk-and-turn test
3. The one-leg stand test
But officers often fail to adhere to these national guidelines. Many never
even received official training as to the NHSTA guidelines. This opens up
their entire investigation against you to attack.
Often times an officer will say in their report that the DUI suspect “failed” or
“performed poorly” on the field sobriety tests, but when the performance
is judged according to NHSTA’s national standards, the person did
everything correctly!
This underscores a basic fact of DUI defense: the arresting officers are
biased and frequently do substandard DUI investigations. Their claims and
opinions should never be taken at face value.
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Any non-standardized field sobriety tests lack reliability
The non-standardized field sobriety tests include:
•
•
•
•
•
•
•
The finger-to-nose test
The finger count test
The hand pat test
The coin pickup test
The alphabet test
The reverse counting test
The Rhomberg test (tilting you head back and estimating 30
seconds of time)
The NHSTA has set no standards for how to administer, score or interpret
these tests and no studies have ever shown them to be reliable indicators
of DUI impairment. Therefore, they are not admissible as evidence of
impairment.
Field sobriety tests provide a poor measure of DUI impairment
Even when the standardized field sobriety tests are administered perfectly
(which is rare), they still provide a certain inaccurate measure of whether
a DUI suspect is impaired. According to the NHTSA, the one-leg stand test
has a 65% accuracy rate and the walk-and-turn test a 68% accuracy rate.
This means that if people were convicted based on these roadside tests,
one third of them would be incorrect and wrongly convicted. Or, viewed
another way, when officers arrest DUI suspects based on failing these
tests, one in three suspects are wrongfully arrested.
Mouth alcohol can contaminate the breath test results
DUI breath testing devices detect alveolar air of the deep lungs, which is
loosely correlated with blood alcohol level. But the breath-testing
machine can be “tricked” by latent alcohol in the mouth often caused by
burping, belching, or recent use of cough syrup, cold medicine and
mouthwash or breath spray.
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When the breath-testing machine picks up mouth alcohol rather than
deep lung air, it gives a BAC reading greatly higher than the true BAC
level. This becomes a particular problem for DUI arrestees with dentures,
denture adhesive, braces, cavities, food impactions, orthodontic work or
who have food particles trapped between their teeth (all of these
condition tend to produce mouth alcohol).
Blood-breath partition ratio is inaccurate based on individual differences
DUI breath testing assumes that “breath alcohol” accurately reflects
blood alcohol based on a 2100-to-1 ratio. This assumption rests on the
proposition that the average ratio across the population is 2100-to-1. But
studies have revealed that the ratio of blood to breath varies greatly
among individuals.
A DUI suspect with a ratio lower than 2100-to-1 will generate an
inaccurately high reading from a breath alcohol test. And there is no way
to determine what a given person’s ratio is, or what it was at the time of
the breath test.
The breath alcohol test yields excessively high results during absorption
Being given a breath alcohol test while alcohol is still absorbing into your
bloodstream often yields falsely high BAC readings. During the absorption
stage, which can last as long as three hours after you finished during, the
BAC in arterial blood is significantly higher, as much as 60% higher than the
BAC in venous blood.
Because the alveolar deep lung air blown into the breath machine is
bathed in arterial blood, NOT VENOUS BLOOD, a falsely high BAC is
generated.
Police have no “special ability” to judge intoxication levels
Police and prosecutors like to suggest that trained and experienced
officers have a “special ability” to discern when a DUI suspect is under the
influence (and therefore jurors should defer to the officer’s opinion that
the DUI defendant was, in fact, impaired).
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“Can you smell the crap they’re shoveling?”
A controlled study performed by Rutgers University’s Alcohol Behavior
Research Laboratory found otherwise. A police officer’s ability to judge
intoxication levels was no more accurate than that of bartenders or social
drinkers.
NONE of the three groups correctly judged levels of intoxication more
than 25% of the time.
No sign of mental impairment present
Being “under the influence” consists of two types of impairment: mental
and physical. Most police will admit that upon being pulled over, the
suspect was coherent, alert and responded appropriately to the officer’s
questions. Therefore no sign of “mental impairment” existed.
But as any DUI toxicologists will tell you, “mental impairment” always
precedes “physical impairment”. So if mental impairment was not
present, then, presumably neither mental nor physical impairment was
present.
Innocent explanations for symptoms of intoxication
Police officers almost always claim to have observed certain “objective
symptoms of intoxication” on the DUI suspect. The standard list includes:
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•
•
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Bloodshot and watery eyes
Slurred speech
A flushed face
An unsteady gait or walk
DUI police reports feature pre-printed boxes for these symptoms that
officers merely check off. And of course, the officers almost never
photograph, videotape or audiotape the DUI suspect so that jurors can
later judge for themselves whether or not and to what extent these
symptoms were present.
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The officer rarely takes these innocent explanations into account. Your
DUI defense lawyer must emphasize to the jury that the evidence is just as
consistent with non-alcohol explanations as it is with intoxication.
Speeding is not correlated with DUI
In many DUI cases, the officer pulled the suspect over for speeding. And
the officer alleges the suspect to be under the influence based (at least in
part) on the fact that the suspect was speeding.
But national studies demonstrate no correlation between speeding and
intoxication. A speeding driver is no more likely to be drunk than sober.
To be sure, speeding is often unsafe and a violation of the law in its own
right, but it is not evidence that the driver is drunk.
Breath testing machines often mistake other chemicals for alcohol
Breath testing machines also detect non-alcohol compounds, which they
frequently mistake for alcohol. Among the compounds most commonly
mistaken for alcohol are ethylene, toluene, nitrous oxide, diethyl ether,
acetonitrile and isopropanol.
The presence of any of these compounds in your lung tissue will likely
cause a false or falsely high blood alcohol reading. People frequently
ingest these compounds at work or in other environments where the
chemicals are commonly present.
Breathing techniques may alter breath test results
Most DUI breath test devices calibrate to test breath at 34 degrees
Celsius. Simulator solutions use the same temperature. But when a
suspect’s breath temperature varies – as is often the case – this can
produce a falsely high BAC result. Even a variation only one degree
higher can produce a BAC reading 7% higher.
A “Disconnect” may exist between your BAC reading and the symptoms
of intoxication
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Certain symptoms of intoxication can predictably be observed at each
successively higher blood alcohol level. Often times a person’s BAC
reading comes back very high, as much as two or three times the legal
limit.
However, the person’s driving; behavior and field sobriety test results were
only slight impaired. In a case like this it is assumed that the BAC reading is
wrong. The reading doesn’t match the other evidence.
This is called a “disconnect case” because the BAC reading does not jive
with the rest of the evidence. Anytime that the alleged blood alcohol
level does not match up with the symptoms you would expect to see at
the presumed BAC level, the prosecution’s whole case is called into
question.
Nondisclosure of expert witnesses
If the prosecutor plans on calling on expert witness’s to rebut your
defense, the prosecution is required to disclose the state’s expert
witnesses to the defense prior to the trial date.
Failure to do so can result in the prosecution’s expert witness’s testimony
to be barred from being heard by the jury.
Suspects right to a speedy trial
You have the right to a speedy trial. What this means is that you must
receive a trial within 120 to 160 days. Failure to be provided a speedy trial
can result in the entire case being dismissed.
Statue of Limitations has expired
This would be an extremely rare case. A charge for misdemeanor DUI
must be filed within a certain time period of the date of the offense or the
entire case will be dismissed.
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Not every one of the defense strategies listed above is going to apply in
every case. After you have gone through and made a list of possible
defense strategies that you feel might apply in your case, you are going
to want to do some further research into each of them.
Even though you have hired a DUI lawyer to represent you in court, you
have hired an experienced DUI lawyer, haven’t you? You are still going to
want to do some further in depth research into each defense strategy so
you know exactly how it might apply to your case. Don’t make the
mistake of leaving your entire defense to chance.
Knowledge is power.
There is no way I could provide you with a complete in depth analysis of
each defense strategy listed here and how to successfully use the strategy
in your defense.
If I did, this book alone would be several thousand pages in length and
cost a whole lot more. Not to mention, whatever I did present to you
would not be perfectly tailored to your case, which is what your DUI
lawyer is for.
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Chapter 4
Officer Disciplinary Action & Character
History
Another item that you and your lawyer are going to want to review is the
arresting officer’s background. Just because he is an officer, doesn’t
mean he has a squeaky clean history.
This may not seem like that big of a deal, but if your lawyer can show the
jury that the officer has had disciplinary actions taken against him for say,
lying, misrepresentation or violating the rights of a driver. Evidence like this
can discredit the officer in the eyes of the jury.
Also if the officer has given testimony previously about the reliability of
tests, or how to administer them, that prior testimony can be used to
challenge the officer’s skills when administering the field sobriety tests. If
your lawyer finds that the officer has been inconsistent in his testimony
regarding testing from trial to trial or that his character is questionable, this
can go a long way in helping your cause.
Now as far as collecting all of the necessary information to conduct a full
review of the arresting officer’s personnel records can be a little tricky. This
is definitely something your lawyer is going to need to do.
Most police departments are going to have a form that can be submitted
in order to request a specific officer’s personnel file. The officer’s
personnel file will usually include basic personnel information about the
officer such as:
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The officer’s employment application
Any promotions that he has received
Performance evaluations
Any accommodations he has received
Specifics on any additional training
Vehicle pursuits and crashes
Some use of force situations
And some disciplinary action reports
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(Notice I said “some disciplinary action reports”, that is because certain
disciplinary reports may be sealed as a way to hide certain information).
This is going to vary from department to department as to what
information they will actually place in the officer’s personnel file.
It will take the assistance of your lawyer in order to get a complete picture
of the arresting officer’s background.
Some of the things your lawyer is going to be looking for are:
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Does the officer have a history of disciplinary problems?
Does the officer have any character deviations that would affect
his credibility?
Is the arresting officer still employed by the same department and
working in the same division?
Has the officer received any special training that qualifies him to
spot the signs of someone under the influence?
What is the officer’s DUI arrest record versus DUI conviction rate?
Has the officer been properly trained to administer the standardized
field sobriety tests?
Has the officer worked for other police departments on or out of the
state and did he receive any disciplinary actions?
This list of items to look for in an officer’s background is not all
encompassing; it will vary depending upon the specifics of your case.
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Chapter 5
Police Department Communication
Records
Police Dispatch Tapes
The police dispatch tape is an audio recording of the communication
between police dispatch and the officer in the field. When an officer is
preparing to make a stop on a vehicle, the officer must report their
intention to police dispatch. During the stop the officer is also going to
keep police dispatch informed as to any imminent arrest they make.
Each police department has their own guidelines as to how long they will
retain the dispatch tapes. So it is very important that your lawyer request
a copy of the dispatch tapes early in his or her investigation of your case.
Failure by the police department to provide these recordings upon
request from your lawyer may cause all or most of the evidence against
you to be suppressed.
Computer Aided Dispatch (CAD)
Most police departments have automated systems that keep track of all
incidents reported to the police and the actions taken by them. This
automated system is called a “Computer Aided Dispatch” or (CAD). A
CAD printout is the summary of an incident and it will include the date,
time and type of incident.
A CAD printout will detail the times in which officers were dispatched to
an incident and the time they arrived on the scene. The CAD printout will
not, however, include everything that you hear on the police dispatch
tape.
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Mobile Data Terminal Printouts (MDTs)
Most police agencies have equipped their police cars with Mobile Data
Terminals (computers). Officers are able to communicate with other
officers and police dispatch through their MDT. Officers are also able to
run a suspect’s criminal history through the MDT.
Once you have determined through the CAD printout, which officers
responded to the scene, your lawyer will want to request a copy of the
officer’s MDT printout.
Mobile Data Video (MVR)
MVR is an audio and video recording from the camera that is inside the
police car. The camera is usually automatically activated when a police
officer activates the police lights.
Once your lawyer has determined which officers responded to the scene,
he can request a copy of their patrol car MVR(s). Once again a request
for MVR copies should be made as soon as possible since each
department will set time limits on how long this information is retained.
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Chapter 6
Money Wins Cases
It should come as no surprise to you that money is a vital factor to winning
a high percentage of drunk driving cases in this country. The reason that
money wins these cases is because when DUI lawyers have funds
available to them for your defense it allows them to pursue all avenues of
investigation, discovery and legal presentation.
It should be noted that people who end up having a court appointed
lawyer represent them in their DUI defense suffer some of the worst
injustices because court-appointed lawyers are not allowed to provide
equal justice to everyone.
Although judges and prosecutors claim there are no limitations when
representing the poor, they fail to reveal that court-appointed lawyers are
often denied fees if they spend too much time pursuing justice in a case.
In addition, most public defenders are over-worked, so they lack
adequate time to litigate every possible issue.
So if you are facing the above scenario where you have a public
defender representing you in your DUI defense, remember that if you
hope to have any chance of having the charges against you reduced,
you are going to have to play a key role in your own defense.
Hiring a DUI lawyer can have the same effects. If you do not have the
financial means to allow your lawyer to pursue the various avenues of
defense, then there will be limits to the level of justice you receive.
If all you’re going to do is find the cheapest lawyer you can to represent
you in court and then you turn around and tell your lawyer that you don’t
want to spend any more money than you have to, you can expect to lose
your case.
This is definitely one time where the old saying of “you get what you pay
for”, is certainly true.
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When someone gets arrested on a drunk driving charge, one of the first
things they start thinking about is the money (and for good reason, most
of us have budgets and extra expenses like this don’t fit into the budget).
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How much could my fines be?
How much are the court appointed alcohol treatment classes
going to be? (If you live in a state that requires these classes).
How much income am I going to loose when I’m in jail?
The list goes on and on.
Sound familiar? Cutting corners on your defense will most likely result in
your receiving the maximum fines and penalties. I know that’s not what
you wanted to hear, but it is the cold hard truth.
Lawyers know that the majority of people who come to them seeking
representation cannot afford to pay their fees up front, that is why all
lawyers will work with you on a payment plan.
The courts also know this and will allow you to make payments on the fines
they impose on you, just don’t get into a situation where you stop making
the payments, this opens whole new can of worms. Paying your fines
needs to come before the little luxuries in life like going out to dinner or the
movies.
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Summary
Ultimately the key to winning any drunk driving case is information. It is not
necessary to twist testimony into a pretzel or establish that the officer is
lying, nor is it essential to have verifiable proof of sobriety. Your defense
lawyer does not have to argue that the drunk driving laws should be
abolished because they are unfair, or that chemical testing is inaccurate.
Yours and your attorney’s goal is to provide competent, credible
information so the jury can see both sides of the story – often two
believable versions – yet feel compelled to vote for an acquittal because
reasonable doubt was created through conflicting evidence.
You need to work closely with your lawyer on your case and be aware of
what is going on, this is your future we are talking about here. Start right
here, right now. Grab a notebook and create your journal, if you don’t
have a spiral bound notebook, go to the store and pick one up, they’re
only a couple of bucks at Wal-mart.
As you create your journal, read through this guide again and start
thinking about the different defense strategies we discussed and write
down which ones you think might apply in your case and start learning as
much as you can about those strategies.
Nothing says “I am serious about beating my drunk driving charge” more
than for you to walk into a potential lawyer’s office to interview him or her
to possible represent you in your defense, sitting down and being able to
intelligently discuss the possible defense strategies that you’ve already
though about.
Not to mention that a potential lawyer is less likely to try and pull the wool
over your eyes knowing that you have done your homework.
Knowledge Is Power!
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