Drunk Driving Defense, DUI Arrest - FAQs

19. What types of defense options do I have for my DUI case?

Each case has its own intricacies and have their own unique variables, thus the defenses are nearly unlimited. It is feasible to categorize some of the defenses into specific areas:

  • Probable cause: The officer needs a valid reason to stop, detain, or arrest a suspect. Sobriety checkpoints do cause several complicated issues with probable cause.
  • The Miranda Warning: If the Miranda Warning was not given at the proper time, any incriminating statements made by the individual can be denied.
  • Chemical tests taken during the absorptive phase: The notion of drinking one for the road can create inaccurate results with the breath tests. It takes the body anywhere from 30 minutes to 3 hours to fully absorb alcohol into the system. Any chemical testing done during this time may not be accurate. Food in the stomach can elongate the absorptive phase.
  • Driving While Intoxicated: This charge is often not satisfactory in DUI cases and can be difficult to prove. For example, if there was an accident where there were no witnesses present, the prosecution cannot prove the suspect was the driver.
  • Under the influence: many of the FST results can be questioned since the ultimate decision is left to the officer. What the officer observes and what he defines as failing can create a bias. Should there be any witnesses present, they can testify that the individual did not appear to be intoxicated.
  • Regulation of chemical testing: The burden is on the prosecution to prove that all instruments used for chemical testing have met all state requirements. This includes maintenance and calibration.
  • Retrograde extrapolation (Refer to question #17): This term refers to the time requirement between the arrest and when the chemical test is administered. The BAC refers to the time the test was taken, not when the suspect was driving. Many physiological issues can occur.
  • License suspension hearings: there are a number of issues that can be brought up during the administrative hearing with the DMV.
  • Implied consent warnings: In California, along with several other states, the conditions under which the chemical test was given could affect its authenticity. Situations such as this can occur if the officer fails to inform the individual of the possible penalties for refusing a chemical test, or if the Miranda warning was given improperly. this situation can also affect the administrative hearing with the DMV)
  • Blood-alcohol concentration: There are a number of issues brought up with the chemical test. Most breathalyzers used by police agencies will record chemical compounds, other than alcohol, that can be found in human body that can register as alcohol. There can be inaccurate results due to radio frequency interference as well. All breathalyzers use an assumption that there is a 2100:1 ratio when converting alcohol found in the breath compared to that found in the blood. This ratio is a generalization and in reality differs between individuals. These potential defects, along with several others, can be questioned when the defense is cross-examining expert witnesses. The defense can also hire their own expert witnesses to contest these issues as well.

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