Drunk Driving Defense, DUI Arrest - FAQs
19. What defenses will I have in my DUI case?
Because each DUI case is quite intricate and there are many variables present in each, the possible defenses are infinite. Generally, though, it is possible to categorize the defenses into a few specific areas:
- Probable cause: If an officer does not have sufficient reason to 1) stop, 2) detain, and 3) arrest a suspect, evidence can later be suppressed. (Note: sobriety checkpoints do cause some complicated issues with this topic.)
- The Miranda Warning: If the suspect was not advised of the Miranda Warning at the correct time, any incriminating statements the suspect may have made can be suppressed.
- Chemical tests taken during the absorptive phase: The phrase
drinking one for the road
can actually cause problems with the breath tests. The body can take 30 minutes to 3 hours to fully absorb alcohol into the system; meaning, any testing (blood, breath, or urine) done during this time will be unreliable. (Note: food in the stomach can prolong the absorptive phase.) - Driving While Intoxicated: This allegation is often not sufficient in DUI cases, and can be difficult to prove. If, for example, there was an accident where no witnesses were present, the prosecution cannot prove the suspect was actually driving.
- Under the influence: Most field sobriety test results can be questioned due to the fact that the decision is left to the officer. The officer’s observations and what he considers
failing
can quite possibly be influenced or even biased. Also, if there are others present they can testify as witnesses that you did not appear intoxicated. - Regulation of chemical testing: Prosecution must be capable of proving that the chemical testing administered (blood, breath and or urine) met all state requirements (such as maintenance, calibration, etc.).
- Retrograde extrapolation: (Refer to #17) This term concerns the requirement that the time between the arrest and when chemical testing is administered is taken into account. That is, the blood-alcohol concentration is
related back
from the time the test was taken to when the suspect was driving. Once again, there are numerous complicated physiological issues that can occur here. - License suspension hearings: Many issues can be brought up at the administrative hearing with the state’s DMV (department of motor vehicles).
- Implied consent warnings: In some states, California included, the situation under which the chemical testing was given could affect its legitimacy. This can occur if the officer never informed you of the possible consequences of refusing chemical testing, or if the warning was given incorrectly. (Note: this situation can also affect the license suspension hearing with the DMV)
- Blood-alcohol concentration: Blood, breath, and urine testing can often spark numerous issues. One example,
non-specific
analysis: nearly all breath machines used in the field today will record chemical compounds, other than alcohol, found in the human breath as alcohol. Inaccurate readings can also be caused by radio frequency interference. All breath machines presume there is a 2100:1 ratio when converting from alcohol found in the breath to alcohol found in the blood. The truth of the matter is that this ratio actually differs between individuals. In fact, it can even differ in the individual themselves, depending on the time the test is taken. All of these defects, among others, can be raised when the defense is cross-examining the state’s expert witness. It is also possible for the defense to hire a forensic chemist to attest to these issues.
