If you are sober (and driving legally) those flashing lights behind you are a mere nuisance. The officer may ask to see your documentation, advise you about why he pulled you over and send you on your way. If you have a few alcoholic drinks in you, however, those lights may send dread through your bones. A DUI – i.e. driving under the influence – conviction is a financial, practical and social disaster. On the bright side, people successfully fight such charges every day.
No Probable Cause
Each state in the union has particular laws governing the apprehension od suspected drunk drivers. Yet the federal Constitution – namely the Fourth Amendment – prohibits “unreasonable searches and seizures.” Courts and legislatures must honor this proscription when writing and enforcing state regulations. It figures into how to fight a DUI.
Police officers must demonstrate and articulate the observations that lead them to intercept and detain a driver. They must furthermore – and this is important – explain why, once detained, the driver induced suspicion of drunk driving. Affected speech, glassy eyes, unstable posture and open containers of liquor are each sufficient for a sobriety test. Finally, they must show that the driver either failed a field sobriety test, a breathalyzer test or otherwise confessed to drinking. If the person refuses a sobriety test, the officer is empowered to arrest. Without these steps, probable cause is suspect.
Poor Field Sobriety Test
Although states are free to formulate their own criteria, the National Highway Traffic Safety Administration issues Standardized Field Sobriety Testing Procedures to law enforcement at every level of government. The test is actually a set of three exercises that reveal the possibility of intoxication. One tests visual focus; the next analyzes gait; and the last evaluates balance.
As finely tuned as this examination is, it is nonetheless open to challenge. If this is performed at night, poor lighting can affect the observation of the driver. Moreover, inclement weather can impede proper scrutiny. The surface upon which the movements are executed might be uneven. Then again, the driver’s nervousness or the officer’s daunting behavior can factor into a poor test result. Consequently, there are a number of ways in which to challenge a field sobriety test. They are weapons in the cause of how to fight a DUI.
Inaccurate Breathalyzer Test
Among the most vulnerable areas of how to fight a DUI are the instruments used to measure blood alcohol concentration levels (BAC). When a suspected drunk driver performs poorly in the field sobriety battery, he or she is given a breathalyzer test. Alcohol in the bloodstream turns to vapor which passes through the lungs. The device receives the breath sample, taking multiple readings per second. Once three seconds elapse with a consistent reading, the breathalyzer (or intoxilyzer) transmits that number to the constable. It is that measurement upon which the polics officer will decide to arrest or release.
No instrument performs flawlessly, though. The BAC in breath vapors is sometimes skewed by other elements. A low-carbohydrate diet, for one, will produce a greater level of ketones in the breath, ketones that convert to isopropyl alcohol. Certain medical conditions can do likewise. Acid reflux, for example, sends alcohol from the stomach to the mouth, yielding artificially high BAC in the breath sample. These distortions must be accounted for before a DUI conviction. In fact, they are integral in how to fight a DUI.
Timing of Alcohol Measurement
Whether the test is of breath, urine or blood, the appraisal of BAC does not always tell the whole tale. This is due to a gradual rise in BAC from the time you imbibe to the minutes and hours that follow. Therefore, it is a distinct possibility that–after answering officer questions, performing the field sobriety motions and waiting on the breathalyzer, your BAC is demonstrably higher than when you were operating the vehicle.
The absorption rate of alcohol into the bloodstream is not uniform. It is slowed by food in the stomach, among other impediments. Depending on the length of time it takes for an interception, detention and evaluation by police, a significant differential between driving BAC and roadside BAC might exist. Such a scenario can work to the driver’s defense.
Arresting Officer Misconduct
Police officers are only human. Hopefully, law enforcement agencies recruit and train intelligent and sensitive personnel. Yet stress and fatigue affect all of us, more so the stewards of public safety. For those wanting to know how to fight a DUI, this is a vulnerability that they do well to pursue. Common mistakes include:
1. Obtaining only one breath BAC sample. Most states require at least two, for good reason. A bedrock rule of science is replication. Achieving similar results again and again gives factual weight and credence to a scientific argument. A one and done gives little and is open to skepticism. The same truth applies when procuring scientific evidence to make a legal argument.
2. Failing to warn a driver who refuses to take a breathalyzer. In most states, acceptance of a driver’s license is an implicit acceptance of police instructions in the event of a pull over. Refusing to take the test for BAC warrants automatic arrest. Nevertheless, if the officer does not so advise the driver ahead of time, a serious breach of protocol occurs which can redound to the driver’s benefit.
3. Failure to maintain chain of custody for blood samples. When blood is drawn as evidence, the security and integrity of the sample must be above reproach. To avoid the potential for contamination or tampering, police departments are subject to strict documentation requirements. If a constable makes a mistake labeling or logging the sample in, the error may eliminate a major piece of evidence against the driver.
The determination and prosecution of a DUI charge falls under strict regulation by statutes and case law. Because of this, many who face charges receive acquittals. Between highly monitored police practices and the vagaries of alcohol consumption, DUIs are effectively avoided.