Fighting a DUI or DWI case - when it's worth it and when it's not.
89See my DUI Defense Review to order my expert review of your DUI case.
A first time driving under the influence (DUI), or in some jurisdictions DWI (driving while intoxicated) conviction, commonly has punishments including: the suspension of your license for three months with some states offering a work permit after one month, court fines of $500 to $1,500, a required alcohol program taking six months and costing hundreds in additional fees, increased auto insurance of hundreds of dollars a year, the misdemeanor stays on your driving record for seven years, and the case can put you back one to several thousand dollars in attorney's fees depending on their quality, greed and degree of involvement (pleading you out at arraignment or representation through jury trial). Most states do not require jail time for a first offens, even when they scare the hell out of you with references to maximum jail sentences. The author is a former prosecuting attorney who has both tried and defended, and otherwise handled thousands of DUI cases.
The question arises - under just what circumstances may you have a defense worth fighting? DUI attorneys may tell you they're always worth it, if for nothing else to scrutinize the police report and give you an informed decision on the viability of the case against you. This article should help inform you whether you should "lawyer up" and pony up expensive attorney fees by addressing the most relevant defenses to DUIs.
Generally there are two charges in a DUI case. One charge is for having a blood alcohol level of .08 at the time of driving; and one charge is for being under the influence of alcohol while driving. The difference can be highlighted by someone's tolerance for alcohol. Some people, usually those accustom to drinking, can drink more heavily and not be impaired by the drinking as compared to a drinking novice.
Therefore, there are some who with a .08 blood alcohol level (BAC) or more, may not be impaired by the alcohol, but still be in violation of the law against driving with a BAC of .08 or more. So, that high tolerance person may be found guilty of the .08 law, but not guilty of the driving under the influence law.
Conversely, a drinking novice with low tolerance for alcohol may be impaired with an alcohol level under .08, and therefore may be found not guilty of driving with a BAC of .08 or more, but may be found guilty of driving under the influence with a BAC under .08. If you are guilty of either offense, or both offenses, the punishment is the same.
See my DUI Defense Reiview to order my expert review of your DUI case.
DRIVING
The first potential defense is whether the prosecutor can prove driving. That's easy when you're pulled over by the police. It's much more complicated if your car is stopped due to an accident, or the police encounter did not permit the officer to witness the driving. I have successfully defended cases where my client and his wife both exited the driver's side and disputed the officer's understanding of who was driving.
A police response to an accident is fertile ground for driving defenses. There are issues of whether any confession of driving can be admitted without some driving evidence first presented. If there are multiple passengers, if the owner of the car is not the suspect of the DUI, if the keys are in the ignition and not on a suspect, if someone fled the scene to get help, and if there is the presence or absence of other clear witnesses of driving - all of these circumstances add to the possibility of a driving issue not able to be proved.
BAC OF .08 OR MORE
The closer a BAC test result is to .08, the more credible defenses emerge. The prosecution must prove you were .08 at the time of the driving, not the time of the test. Depending on whether you took a blood, breath, or urine test, the test would be administered anywhere from 20 minutes to several hours after the driving. BAC changes over time. A rising BAC defense involves a situation where a significant amount of drinking ( e.g., a shot with a beer tracer) took place shortly before the driving, and the test occurred after the driving.
In a rising BAC case, the alcohol already consumed shortly before the driving, does not enter the blood stream to cause impairment until the driving is completed and until the test is administered. Reasonable doubt may exist with a BAC test of over .08 at the time of the test, but where the diver may be under .08 at the time of the driving. Therefore, the defense goes, both the high test level and any impairment occurred after the driving. The charge is driving under the influence or with .08 or more, not merely taking a BAC test in that condition.
Commonly, police use two breath tests. A highly accurate machine usually kept at the police station, and a less accurate hand-held device used in the field. Discrepancies between these two tests results can bolster a rising BAC defense if the field hand held test is lower than the subsequent, higher accuracy, police station test (usually a intoxylyzer model 5000).
Again, an accident scene is fertile ground for defenses. I have had several cases where the driver allegedly drank alcohol, or drank additional alcohol, after the accident had occurred, but before the police arrived. Clients allegedly drank at the scene, or left a note at the scene and were at a bar or their home drinking because of the stress of the accident. It becomes highly problematic with "post accident drinking" for the prosecution to prove sufficient pre-driving drinking to a sufficient degree to convict.
If you were taking medication at the time, or have a medical condition, that very unlikely will have an effect on the accuracy of the BAC test, but may have a substantial effect on your body's ability to metabolize alcohol which may give rise to a defense in some states. I have seen one medical condition where evidence was provided, and the judge concurred in a judge trial, that the person was producing alcohol in her body without consuming any alcohol beverages at all! Finding: not guilty.
With much lesser success the accuracy of the BAC tests may be attacked. Blood tests are the most accurate, however, they require procedures including the cleaning of the area with an non-alcoholic swab.
Breath tests are the next accurate BAC test, that is, the more accurate police station machine with slope detection and other fail safes to guard against mouth alcohol (mouth regurgitation with potentially higher concentrations of alcohol than true BAC). Procedures for the breath tests include a 15 minute, uninterrupted observation period prior to the test administration. Further, manufactures, and some state regulations (like Title 17 of the California Administrative Code) require calibration of the machines twice a week.
The least accurate is the urine test. Procedurally two samples are required, one to clear the urinary system of stale alcohol consumption, and a second which will measure the alcohol level currently in your system. If only one urine sample is taken, it will measure the average BAC level from the last time one has urinated and will not reflect current BAC levels, and therefore will not be accurate nor probably admissible as evidence.
One big caveat for any failures in these procedures, except the urine test which requires two extractions to be accurate at all, any deficiency in procedures will likely not result in the suppression of the test as evidence. The judge will most likely allow the test, allow the evidence of procedural shortcomings, and allow the jury to decide the weight to be given to the test.
UNDER THE INFLUENCE
This is the most subjective element of a DUI case, and does not need to be proved for the .08 or more charge. The officer's training and experience will lead to objective observations (commonly weaving within a lane and other minor driving irregularities) and field sobriety tests to form the subjective conclusion that a driver is impaired. This is usually the most successful part of a defense cross examination to raise doubts about the police officer's conclusion.
BLOOD, BREATH, OR URINE TEST CHOICE
Most states require the police officer to give the driver a choice between BAC tests. The easiest for the police to administer, and therefore their favorite, is breath. The failure to give a choice has NOT, in most jurisdictions, resulted in suppressing (throwing out) the BAC test. Regarding choice, I have had many defendants go back and forth between test choices to the point that the test occurs several hours after the driving, and has given the body a chance to metabolize alcohol out of their system (which occurs very generally about the equivalent of one drink per hour).
See my DUI Defense Review to order my expert review of your DUI case.
DRIVERS' LICENSE SUSPENSION
Most states have a separate administrative proceedings through their department of motor vehicles to suspend driving privileges upon a DUI arrest. I have found that procedural problems with choice and/or administrative regulations regarding the various tests, and described above in the BAC .08 OR MORE section, have greater weight and success in these administrative hearings. These hearings have nothing to do with the court.
Generally you have a short time period (10 days in some states) to opt for a telephonic hearing. The police report will include a declaration regarding the choice and waiting periods, and other BAC procedures. The hearing may proceed without the officer. Unless the police suspension declaration evidences a a problem, you should request at the hearing that the officer appear telephonically as is your right, and lead the officer into answers that often show that these procedures, although checked off on the form, were not really followed.
Nine times out of ten the 15 minuet waiting period for the breath test is violated. I am commonly asked if the failure of the police to give Miranda warnings (your rights being explained to you prior to questioning) will result in the dismissal of a case. It will not.
The remedy of any failures to give the warnings will be the suppression (throwing out) of any statements you have given in response to incriminating police questions, after you are under arrest. I hope this article helps those involved in a DUI arrest understand some of the major defenses, and procedures.
See my DUI Defense Review to order my expert review of your DUI case.
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I am sorry for your condition.
However criminalizing a defense to charges by your government are only appropriate for totalitarian regimes like Nazi Germany and Stalin's Soviet Union. In this country you have a Constitutional guarantee to confront and disprove charges against you. May freedom and Constitutional protections of individual liberty continue forever!
The fact is the government took a social norm and made it public enemy number one overnight.That is the equation of madness.We all watched are moms and Dad's and grandparents drive happily down the road with a drink in their hand(most were pillars of society) in the 1940's, 1950's, 1960's ,1970's. Then everything changed abruptly.You can not change a social norm that has been going on for eighty years in the good ol USA and expect everyone to just go along.
The fact is the government took a social norm and made it public enemy number one overnight.That is the equation of madness.We all watched are moms and Dad's and grandparents drive happily down the road with a drink in their hand(most were pillars of society) in the 1940's, 1950's, 1960's ,1970's. Then everything changed abruptly.You can not change a social norm that has been going on for eighty years in the good ol USA and expect everyone to just go along.
I admit drunk driving is wrong but the police are out to serve and protect not park outside liquer store's waiting for someone to drive away and pull you over. That is wrong! I had 2 beers at a resturant with dinner with the family 1 block away from my home and stopped a the corner liquer only 300 feet from my home and got pulled over inside my own parking structure. I had to let them out with my own gate control. I past the vision test and took the breath test and read .07 and got taken in about 40 minutes later because they had to wait for trasport for me and I ended reading .09 at the station and never seen it for my self I was just told it was a .09 and got release about 4 hours later with a promise to apear in court. It is all about the police making there quota for the month or something!
I had an experience that when asked to take a breath alizer i faild. This was a shock to me because i was not drinking at all!! Since i was on probation how ever the breath alizer was valid in my case. Even the sworn statements by the other members in my house did sway the prosocution, I was charged. It ruind my life and beacause I coud not afford a decent lawyer there was nothing i could do about this situation
I was in a motorcycle accident a few weeks ago going about 40-45mph that involved farm animals. There was an entire heard of sheep covering the road. I dodge two of them and hit the third one because they started scrambling on me. Even I would have missed it, I still probably would have it the fourth one in. After I was done rolling I noticed a cop was already there because he was responding to sheep on the road. I insisted on standing up. Probably due to the amount of adrenaline going through me. One of the first few questions I was asked was have you been drinking. I wasn't in the right state of mind, and told him I had two drinks at my place. Long story short, he feels the need to give me a sobriety test even after the ambulance states that I have a concussion to a possibly severe concussion. Then they have me blow. Field test was a .112% and back at the station it was .089% 15 minutes later. According to that, I had a burn off rate of .01% every 10 minutes.
As it turns out, I had a subural hematoma. Have you ever had to do a sobriety test with bleeding in the brain? Or how about being in custody for nine hours with with big abrasions on your knees, hip, and all over head? Not to mention you feel this pressure in your head that is truely a 9 or a 10 out of 10 on the pain scale.
Not to mention the cop calls me sometime in the next two weeks. Hard to say because I was really out of it. Saying that I need to go to the station to provide my insurance information so he could finish his report. He never asked me for my insurance that night, nor did he bother to look through my wallet when they had it for 9 hours. Yet he feels the need to state that he was going to cite me for not having insurance because I never provided it for him.
Talk about a very frustrating situation....
Fantastic hub with great information. I think most people believe that they cannot fight a DUI charge. This hub helps people to realize that police and prosecutors try to pin DUIs on unsuspecting citizens even though the issue of intoxication is in doubt.
Police are being rewarded for the amount of DWI arrest they make. Promotions and paid overtime are the officers incentives for making unjustified DWI arrest. It doesn't matter to them if you are convicted or not in court. Most officers know who they can exploit and have no repercussions by their unlawful actions. They target poor people mostly. Bad DWI arrest are growing too epidemic proportion across our country. My advice to people arrested on a DWI Charge is don't say a word other than I like to speak to my Attorney and fight your case tooth and nail.
I have to agree with meteetse.. DO NOT TALK to them even at the beginning to answer questions like where you are going or coming from. Just hand the your license registration insurance and dont answer. Do not say anything except you would like to speak to an attorney.
Wooohooo! fighting a DUI is the best way to go. Cops are human like us and they do mess up sometimes. The DUI case was dropped because the 2 cops, ues 2 cops did their paperwork wrong. I was pass over the legal limit and had no hope fighting an extream. Clifford Levenson hooked it up and got me out. I found him online and paid very little for his services. He saved me!
Some people are not drunk when they get ARRESTED by police but still get charged with DWI nonetheless....thank god for lawyers who can fight DWI cases....
I like how cops dont tell you that you have 10 days to drive with your dui citation as your temp license.Or how they dont tell you the consequences of blowin or not blowin. I thought cops was suppose to help you but after the 1st dui i got, at 28 years of age, i dont think they are doin their job.
I think that a forum of idiots proclaiming their right to drive while intoxicated is morally reprehensible. You shouldn't get a gold star because you were let off the hook for your crime. Mistakes happen, yes. You being drunk is not a mistake. It's a choice, and it's a bad one. Karma is one bad mammajamma. I hope you get yours.
I'm glad I stumbled upon this forum. I'm currently dealing with a DUI case, just went to court for sentencing and after making a plea bargain a month prior and got completely railroaded.
I was pulled over for the horse trailer lights going out on the trailer. This was not my vehicle or trailer. The officer seen a bottle of alcohol in the bed of the pick up and immediately started with the alcohol b.s. I have had knee surgeries so refused to do soberiety test on the roadside. Got arrested for that, have acid reflux so couldn't do the breathalizer, so the did a blood draw. I knew from the beginning of this that I was in trouble. After reading the above information I now know why. The EMT that drew my blood used a alcohol wipe to prepare my arm for the draw. The officer, court clerk and court appointed attorney all told me my results would take over a month to return. Amazingly enough my results were back in a week, can we say fishy? Yeah I think so.
Yes I had a few beers and I also have a medical condition that until just recently I didn't know was affecting me. I had just pressed through.
Anyhow know I'm dealing with 3 days of jail I'm suppose to do but yet when I called the jail to make arrangements for my medical condition they told me they can't accommodate my condition, when the judge told me they could and would. I got fined $1100, license suspension and 12 months probation with some complete ass of a probation officer. He has yet to meet with me and its been over a week since the trial. I am going to file a appeal to my hearing and I am filing a motion for my condition.
If anyone has any other insight I'd love to hear it cuz I am tired of crooks and judges on power trips. The name on the ticket is not how my name is spelled and I pointed this out and they just over looked it but I will pursue it in more detail.
In the meantime I will follow through with what the judge ordered as I continue to build a new case against them.
Thank you for the information cuz good people that didn't do wrong always get railroaded by power hungry judges and cops.
Several months ago I went out for a few drinks with friends. Because I was eating at the bar and only had a couple drinks, I sincerely felt that I was capable of driving; however, I was pulled over and arrested for blowing over .08. I didn’t feel that it was fair, so I hired a lawyer to fight the charges on my behalf. My lawyer, Joel Chevefils, was so professional and was able to fight the charges placed against me.
If you have found yourself in the same situation, I strongly urge you to check Joel out. His website is http://criminaldefenceonline.com/. His number is 403-830-1980 and his email is jac@criminaldefenceonline.com. The impaired driving laws in Alberta are getting tougher and tougher; it really does pay off to have Joel Chevrefils on your side.
oct the 2nd of last year i fell asleep in my car after a huge night out i woke to have lost my car keys my wallet and my ph i was searching through my car for my stuff and managed to knock my handbreak off my car rolled bk 1.5 meters as my car was parked on a slight hill . as i was trying to push my car off the road so it wasnt hazordas to cars the cops pull up and asked wat i was doing and could clearly see i was intoxicated i explained to them wat had happend but they wernt interested in wat i had to say and charged me with drink driving!!!! like wtf and now i am having to fight it in court 11
I feel sorry for those affected by a DUI accident, but the current state of DUI laws is absurd. There are a multitude of investigative reports which revealed that cops are abusing the economic incentive to issue DUIs and fabricating incident reports. I'll a perfect example from personal experience: I was caught dead to rights going 98 mph on my motorcycle around 10PM on a Friday, driving home from work. That's 33 mph over the limit, reckless driving. The first thing the cop does is ask me if I was drinking. I told him I had absolutely nothing to drink yet he still administers his FSTs and a breathalyzer. After his investigation revealed no signs of impairment he cuts me loose! He didn't even check my DL or insurance - nothing, not even a warning. Maybe he was just a nice guy, but I think he was out trying to pin people with a DUI given he didn't want to deal with having to take time to issue a speeding ticket. Personally, I feel that each state should make it mandatory to carry an Intoxilyzer in your car so that if you do go out and have a couple of drinks at least you have a scientific instrument to measure your level of intoxication. Sorry to be blunt but DUI lawyers are a Godsend given the current state of DUI laws.
I got pulled over in Belleville/Ontario on a D.U.I Charge. I failed on the test. Was arrested and blu a 1.7. Didnt feel that drunk but had double my antidepresints that afternoon. So that messed me up a bit. On the police report they said I was pulled over with an over 80. Was told by lawyer I was falsly acused cause they can only charge u with a dui at time of arrest as they woulnd have known till I got back 2 station I was an over 80. Plus they said I was driving a blue honda civic and I own a black honda civic. Plus said I was doing 77kl in a 50kl zone. Then said I was doin 75 in a 60. Have pretrial on the 15th. Should I try 2 fight it 4 false statments. Or just plee guilty?
I would luv 2 fight it but need very cheap lawyer. Any advice peeps on what I should do? Thanks all.
I was in an accident with a drunk driver he was drunk too. He fled the scene told me he was going to get help.I did not know him I just picked him up and we got drunk in a park.The police had an ambulance take me to the hospital where they drew blood and the police left. my daughter picked me up. I was not asked for my drivers License or insurance or anything else. Are they building a case against me? Will i get a letter in the mail telling me to appear in court? What shall I expect?
I was arrested for DUI after passing the sobriety test twice, I was then given the BAC and tested at .08. Shortly after I was given the test again and tested .06 within 30 min of the first test. I was then told that I could not be booked and told to call a friend to come pick me up. I was not finger printed or process. i did not need to bond out. i was just released. 2 days later I call the courts and they say I am still being charged with DUI. What is going on?
- Online BAC calculator
Calculates estimated Blood Alcohol level given factors of number and type of drinks, time of drinking, sex,and weight.
Andy 3 years ago
Sir, I think you are a crook - defending drunks who more then often cause material damage, injuries and even death by their decision to sit behind the wheel after they have been drinking. In my case, a drunk driver pushed me off the road, was visibly intoxicated, caused me to go into a wild skid that 120 feet later ended up in his vehicle, and he got away with it thanks to crooks like you. I ended up in the hospital with heavy concussion. Until today, I have sciatic nerve damage that cause me to suffer debilitating pain in my legs. I also ended up with heavy tinnitus, all thanks to one drunk driver who could not keep his vehicle in the straight lane and pushed me off the road. I spit on all of you leaches who make money on human irresponsibility and havock your clinets cause on the road. Shame on you, DUI lawyers/crooks!