IMPROPER “STOP” OF VEHICLE – A driver cannot be stopped unless the officer has a reasonable and articulable basis to believe that a traffic law or other law has been violated. Simply put, the officer must have Probable Cause (or “PC”) for the stop. Additionally, the officer has to see it. It is not lawful to stop a vehicle based on the report of an anonymous citizen that someone is “driving drunk.”
IMPROPER FIELD SOBRIETY TESTING – According to reliable research, the “Standard Field Sobriety Tests” (which are a collection of three (3) tests accepted based on studies of the National Highway Traffic Safety Administration, or NHTSA) are widely inaccurate. For instance, the “one-leg stand test” has been shown to be only 65% accurate, and the “walk-and-turn test” is only 68% accurate – - when it comes to determining a person’s level of “impairment.” These figures are much more inaccurate as a determination of impairment in the case of a person with joint injuries, medical conditions, excess weight (obesity), or of advanced age. Moreover, many NON-standardized tests are still widely used by some members of law enforcement. Neither the NHTSA, nor medical science, considers these tests, such as touching your finger to your nose, counting or reciting the alphabet as valid sobriety tests.
“DRIVER” IS NOT IN ACTUAL, PHYSICAL CONTROL OF THE VEHICLE - The first question in a DUI case is often “can the prosecutor prove the Defendant was driving?” Just because a member of law enforcement assumes a person is driving a vehicle, doesn’t mean there is admissible evidence that can be used in Court to prove the person charged was actually driving. A defendant’s admission to driving, without more, does not prove a charge of driving under the influence. Many people are charged with DUI when they are simply found in a car (sleeping it off for instance). Often, independent witnesses can provide crucial evidence of the defendant’s sobriety and lack of physical control of the vehicle while in an intoxicated state.
BREATH TESTING IS INACCURATE – Virtually all “experts” will concede that one breath test alone is unreliable. Breath testing is subject to various inaccuracies, including a variance as much as plus/minus – 12.5% in identifying something that is not “alcohol” as we think of it (as an intoxicating liquor or ethanol). Sometimes, tests are administered by unlicensed Breath Test Operators, or who have had their license expire prior to the time of testing. Many States specify that if there is a malfunction or repair of the breath test instrument within a certain period of time before or after a suspect’s breath test, the results of the suspect’s test are presumed invalid. There is also a period of time, called an “observation period” in which time a testing police officer must observe a suspect to ensure that the test is valid. If the officer does not abide by the rules of the observation period, the test may be unreliable.
BLOOD TESTING IS INACCURATE – Many times, police blood testing fails to follow prescribed rules of testing, analysis, or preservation recommendations. There can be errors with the preservation of the sample, the way a person’s blood sample is collected or impounded or a break in the “chain of custody” that prevents the sample itself from being admitted at Trial.
EXPERT WITNESSES ISSUES– Many good DUI defense lawyers are able to locate and retain expert witnesses who can review scientific issues in a case and disprove the prosecutor’s theory. These experts are sometimes in the best position to address issues related to the validity of breath tests, blood tests and field sobriety tests. Additionally, in many cases the failure of the prosecutor to disclose the state’s expert(s) will cause those witnesses to be barred from testifying against the defendant. Because scientific evidence in the form of expert testimony is required in almost every DUI case, the inability to call such a witness often means the prosecution cannot prove their case.
CONSTITUTIONAL ISSUES – Every person charged with a crime in our criminal justice system is afforded certain constitutional rights. These include the right to be free from illegal search and the right to remain silent. The police are prohibited from searching a person or the automobile for a minor traffic offense, and may not search a car without a driver’s consent or probable cause. Any evidence illegally obtained is not admissible in court because it is termed to be tainted as “the fruit of the poisonous tree. A good DUI lawyer will know how, and when, to move to suppress such a search. Likewise, a prosecutor cannot elicit into evidence any responsive statements of a suspect made while they are in custody for a DUI and subjected to police questioning UNLESS the police have failed to properly provide Miranda Warnings (the right to remain silent, the right to an attorney prior to questioning, etc.).
POST-DRIVING ABSORPTION OF ALCOHOL – The prosecutor must prove the blood or breath alcohol in a person accused of DUI at the time of driving – - not necessarily the time of testing. Recent consumption of alcohol just prior to driving, or during driving will cause the test results at the time of testing to be higher than the true level was when the person was operating the automobile.
INTERFERING SUBSTANCES – Many items contain forms of alcohol, which may cause false results, such as asthma spray, bad breath treatments, cough drops, paints, fingernail polish, even medical conditions (such as GERD) cause false readings on evidentiary breath tests. If a defense attorney can point out these issues, there are potential issues to aid in resolution of a case or success at Trial.
FAILURE TO MEET DEADLINES – A DUI charge must be formally filed in Court within a certain period – referred to as “the Statute of Limitations” – following the date of the arrest or offense, or they prosecuting agency (the State or City prosecutor’s office bringing the charges) loses the right to proceed. If the charging document – called a criminal complaint – is not filed within the statute of limitations, the prosecutor will be forever barred from bringing charges. Additionally, If a person requests, and is not granted their right to a “speedy trial” they may be able to prevail on a Motion to dismiss the case in its entirety. In some cases, a person who is not provided with a speedy trial, through delays of the court or prosecutor, the charges must be dismissed.
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