Written by Scott Bischoff from Adams & Bischoff
DUIs can be expensive—from towing costs, bail, attorney’s fees, high-risk insurance costs, court costs, and reinstatement fees, your first DUI charge can cost in excess of $10,000. Aside from monetary costs, a DUI charge can jeopardize your career, health, future aspirations, and overall quality of life.
Consulting a skilled DUI attorney to help you can profoundly help limit the costs and consequences that could result from a conviction. With their help, you can get charges dropped or reduced, obtain acquittals, and prevent a driver’s license suspension.
Whether this is a first-time charge or a repeat offense, your lawyer can use several defenses to help your case. Here are 15 possible defenses broken into four categories: police misconduct, testing errors, mental and physical health status, and general innocence.
Ways To Fight A DUI Charge
While the phrase “police misconduct” brings up images of wrongful physical violence against civilians, things do not have to escalate that far to be considered police misconduct. Here are a few behaviors that fall under this category:
No Probable Cause
Police can only pull a traffic stop if they have reasonable suspicion that you are under the influence. They do this by checking drivers that exhibit NHTSA driving impairment patterns, such as sudden changes in speed or violating stoplights.
If there is no probable cause in your case, your lawyer may be able to file a motion to put out the evidence gathered from the illegal traffic stop, continued detention, or subsequent search of your car. This is often referred to as the “fruit of the poisonous tree.” Even if they have damning evidence, because the “fruit” was picked from the poisonous tree of an illegal act, it is automatically inadmissible at trial, thus limiting the evidence the government can use against you to obtain a conviction.
DUI Without Proof Of Driving
If a police officer walks up while you are sitting in a parked car, there sometimes is no evidence you were driving – an integral part of a DUI prosecution. So, regardless of your level of intoxication, such circumstances present a problem for the government. Similarly, if you were in a car accident, but no one saw you driving the vehicle, this limited circumstantial evidence is not always sufficient to successfully prosecute a DUI charge. An experienced DUI attorney will know how circumstances like this present problem for the government and can use these problems to your advantage during plea negotiations.
Police Report Errors
There are several examples of police report errors that can also delegitimize a case. Sometimes the report is missing information or police may fabricate evidence of intoxication. Additionally, if the evidence was illegally obtained (see No Probable Cause), this also classifies as a police report error.
Even though it is not part of the written report, testimony in court also can be considered a police report error. If a police officer lies while testifying in court, that can severely damage the government’s case against you. Likewise, omissions from a report compared to favorable evidence on video can call into question the officer’s credibility and improve your chances of a successful result in your case.
Testing errors are similar to police misconduct, as a failed positive can result from the incorrect use of equipment or equipment malfunction. If there is proof of operator error or machine error, which an experienced DUI attorney can detect in most cases, the reliability of the test result is called into question and can completely change the government’s perspective of the case. This section will go into more depth about how different types of testing used in DUI detection can fail.
Breathalyzer Test Error
DUI breathalyzers do not measure BAC directly. Instead, they rely on estimation within a certain margin of error. As a result, the machinery itself may report an incorrectly high BAC level. Improper calibration, improper instructions on how to blow into the machine, and misuse of the breathalyzer machine by the police officer can also lead to a false calculation. An experienced DUI attorney knows not to simply accept a breathalyzer reading as valid on its face. Obtaining the internal data from within the machine and reviewing the machine’s records from previous breath tests can sometimes reveal reliability errors that can help lead to a successful result in a case where the breath test result is over the legal limit.
Field Sobriety Test Error
Field sobriety tests are not as accurate as you would think. Horizontal Gaze Nystagmus – when the officer asks you to follow their finger with your eyes – has a 77 percent accuracy rate. The one-leg stand test is 65 percent accurate, while the walk-and-turn method is 68 percent accurate. But even these percentage rates are only valid when the proper instructions are given, as stated in the National Highway Traffic and Safety Administration (NHTSA) manual, to the DUI suspect.
These tests can be difficult to pass even when sober, especially for those who are nervous, have poor balance or wear inadequate clothing that interferes with the test. Individuals who are over the age of 65 or are substantially overweight should not be given the tests, according to NHTSA. Any hindrances to the testing procedure can lead to a false DUI charge, which an experienced DUI attorney can recognize and challenge during the representation.
Improper DUI Sobriety Checkpoint
At sobriety checkpoints, probable cause is not necessary for police officers to check drivers. However, officers are still subject to several strict requirements. For example, the roadblock has to be advertised ahead of the location, and they cannot hold you for an unreasonable amount of time. Police are also required to take safety precautions at the sobriety checkpoint. An experienced DUI attorney knows there is case law that lays out exactly what a law enforcement agency must do in order to lawfully set up a checkpoint. Similar to the fruit of the poisonous tree discussion above, if law enforcement does not follow these requirements, any discovery of evidence subsequent to an unlawful checkpoint will not be admissible in court, including evidence of DUI. A failure to follow these requirements can lead to trouble for the government in successfully prosecuting a DUI charge defendant.
Mental And Physical Health Status
This section does not only apply to illnesses. For example, some medications and diets can also lead to false-positive DUI tests. For this reason, anything dealing with mental and physical health is listed under this category.
When your body lacks carbohydrates, the body begins to burn fat cells instead. This process produces ketones, which convert into alcohol when they are exhaled. Ketosis can be caused by Diabetes or the Atkins Diet and can cause breathalyzers to inaccurately report high BAC levels.
Also referred to as gut fermentation, the auto-brewery syndrome is a rare medical condition where alcohol is naturally produced in a person’s digestive system without drinking any alcohol. This syndrome is usually linked to diets with high levels of carbohydrate consumption or overuse of antibiotic medication.
Breathalyzers may register ethanol (ethyl alcohol) as alcohol in your system. This is referred to as “mouth alcohol” and can be caused by some types of medicines, asthma inhalers, breath sprays, and even just burping.
Different medical conditions can also cause mouth alcohol. For example, Gastroesophageal Reflux Disease (GERD), Hiatal hernias, heartburn, or acid reflux can also be a source of mouth alcohol and lead to false positives on breathalyzer tests.
BAC VS Impairment Status
If there are no signs of impairment but a high BAC, this could be a sign of a faulty test. However, a high BAC may also be reported because of one of the medical conditions listed above. In either case, looking at the comparison between the reported BAC level and your behavior at the time may be a means of creating reasonable doubt.
Though an odd category, there are situations where your DUI is due to circumstance. Below are two ways this is possible:
Innocent Reasons For DUI Symptoms
There are a series of DUI symptoms that result from things out of your control. All of the examples listed below exclude some medical conditions that can also cause these symptoms:
- Slurred Speech: Tired or fatigued while driving or excess stress from being pulled over
- Red, Watery Eyes: Symptoms of Allergy
- Flushed Face: Sunburn or Rosacea
- Alcohol-Smelling Breath: oral medication or breath spray
- Unsteady Gait: literal physical injury
Someone may have drugged something you drank without your knowledge. For example, someone may put alcohol in a punch bowl at a party. If you drink from that punch bowl without knowing someone spiked the drink, you may drive home after the party thinking everything is okay.
These 11 defenses can be instrumental in your DUI case. Though consulting a lawyer is still highly recommended, this list can give you an idea of what to discuss with your lawyer and what defense paths may work best for your situation.