There are many DUI defense tactics available. In every case there are usually several defenses your attorney can use to help you avoid the most serious penalties. In many cases we get the charges dismissed or get a non-guilty verdict after trial. Every case is different. Don’t enter a plea bargain without consulting an attorney.
Defense of DUI Cases
The DUI Law Group implements numerous defense strategies against DUI convictions in Colorado. Many of these defenses are applicable in almost every case and a few are dependent on the facts and circumstances leading up to the DUI charge. When you come into the office for an initial consultation, an attorney will have you complete a very thorough questionnaire which will be used to formulate the exact strategies and defenses to be used in your case. An attorney will discuss our intended strategies with you before we begin litigating against the District Attorney’s (DA) office on your behalf. If you have not yet retained an attorney, the best piece of advice we can offer at this stage is to invoke your 5th amendment right to remain silent. Many individuals charged with a DUI hope the prosecutor will be more lenient if the defendant is cooperative. That is not the case. This is what the DA’s office wants you to believe. Do not make their job easy. The prosecutor and police are not looking out for your best interests. The DA will build their case around the evidence gathered before and after your arrest for drunk driving. The DA will seek to admit evidence into the case such as evidence that you: were driving in an unsafe or careless matter, not obeying traffic laws, had the smell of alcohol, appeared under the influence, failed the field sobriety test and the blood and/or breathalyzer tests. Keep in mind that the prosecutor must prove its case. The evidence gathered in a DUI case is subject to interpretation. Despite how strong the prosecutor’s case may seem, most cases have several evidentiary issues. Even the breath and blood tests are not based on firm science. None of the tests measure your ‘actual’ blood alcohol level. The tests are merely estimates (best guess) of your true BAC.
The following Defenses to DUI convictions arise in most drunk driving cases:
- Are there issues with the Blood Test in your case? Was it accurate?
- The arresting officer neglected to read you your rights before questioning you after the arrest.
- Did the police officer have cause to pull you over in the first place?
- Having alcohol on your breadth does not prove you were under the influence.
- Can some or all of the evidence gathered by the Police Officer be suppressed?
- Were the signs of driving under the influence actually the result of fatigue?
- Was the Breathalyzer or Blood test an accurate measurement of your BAC level ‘while you were driving?’
- Did the Arresting officer Comply with Colorado’s DUI regulations?
- The Chemical Test and Breathalyzer tests are always prone to error.
- Did you perform poorly during the field sobriety test?
- Breathalyzers often yield inaccurate high BAC levels during absorption phase.
- No One, Including Police Officers, Can Accurately Observe Your True Intoxication Level.
- Were you able to respond to the officer in a coherent manner?
- Can the police officer substantiate his claims of observed intoxication?
- Do the symptoms of intoxication match the BAC reading?
- Acid reflux may have caused the breathalyzer to return an unusually high BAC measurement.
- Of course the best defense to a DUI charge is to stay under the legal BAC level.
Are there issues with the Blood Test in your case? Was it accurate?
If you submit to a blood test, and in most cases you should, you are permitted to have your sample tested by an approved agency of your choosing. If that State’s lab failed to take adequate precautions to prevent fermentation in the test tube (it can and does happen) your attorney will attack the results of the chemical test.
The arresting officer neglected to read you your rights before questioning you after the arrest.
If the arresting police officer failed to advise you of your Miranda Rights (it happens) after placing you in custody, any answers you provided in response to policy questioning may be excluded from evidence.
Did the police officer have cause to pull you over in the first place?
Many drivers unintentionally drift out of their lane while driving. This does not mean they are drunk. Distractions can cause minor weaving while driving. The case may be dismissed if the stop was not justified. The officer should have observed pronounced weaving for a substantial distance. If the officer pulled you over for a traffic violation you must have actually committed the alleged traffic offense, otherwise, the case may be dismissed. If you were pulled over for failure to stop at a stop sign and you did in fact stop at the stop sign, the case may be dismissed because the traffic stop was illegal. Did the police officer provide any justification for pulling you over? If the officer cannot recite specific articulable observations that indicate a reasonable suspicion a traffic violation has occurred, the stop was illegal and the case may be dismissed.
Having alcohol on your breadth does not prove you were under the influence.
If the officer indicates that he could smell alcohol on your breadth, this does not prove your BAC level was too high. The smell of alcohol does not prove anything other than the suspect likely drank some alcohol recently. It may have been a small amount. The odor could be coming from a different passenger. Your defense counsel will refute any attempt by the DA to prove you were under the influence simply because the officer could smell alcohol.
Can some or all of the evidence gathered by the Police Officer be suppressed?
The DUI Law Group will seek to suppress as much of the evidence gathered in your case as possible. This is accomplished by filing pre-trial motions to suppress evidence. The court will hold a hearing to consider the motions prior to trial. To be honest, the court often sides with the DA’s office and allows the evidence in. However, the suppression hearing gives your attorney a chance to attach the integrity of the evidence in your case. By opening the DA’s eyes to the weaknesses of their case, the prosecuting attorney is more likely to reduce the charge or settle the case.
Were the signs of driving under the influence actually the result of fatigue?
Driving while fatigued is dangerous and can lead to a citation; however, having a charge for careless driving on your record is much better than having a DUI on your record. Fatigued drivers show many of the same symptoms associated with drunk driving such as bad driving and slow responses to police questioning. A tired driver is likely to fail the field sobriety test.
Was the Breathalyzer or Blood test an accurate measurement of your BAC level ‘while you were driving?’
If you were pulled over shortly after you stopped drinking, your BAC level may have been lower while you were driving than when the blood draw was taken. This is because alcohol takes about an hour, sometimes longer, to absorb into your system. If you blew a .08 at the police station, your BAC level while you were driving was likely much lower. Therefore, it is always better to refuse the preliminary personal breath test PBT (handheld device). This is the road side test and refusal to take this road side test cannot be used against you. However, you are required to take a breathalyzer at a police station (large machine) or blood test otherwise you will automatically lose your license and your refusal will be used against you in court.
Did the Arresting officer Comply with Colorado’s DUI regulations?
Colorado Revised Statutes contains the standards an officer must use when conducing a DUI investigation. The arresting officer must comply with the DUI regulations otherwise the evidence may be excluded or called into question at trial. It is common for police officers in Colorado to unintentionally violate these procedures because they are naturally biased. An officer may indicate you performed poorly on the test even though your performance was adequate according to standards. Further, the machines used to test BAC levels may not have been adequately maintained or calibrated. Your attorney will review the maintenance and calibration records for the device in question in your case.
The Chemical Test and Breathalyzer tests are always prone to a certain percentage of error.
Even if the tests were conducted exactly to standard procedure and the machines were perfectly maintained and calibrated, the results are still open to attack because of the inherent error in these tests. Most experts agree the inherent error is about +/- .02 for breathalyzers and +/- .005 for chemical tests. There are other chemicals people commonly ingest which can result in falsely high BAC levels. These chemicals are mistaken by the breathalyzer for alcohol. Your attorney will question you about your diet and cite several studies which show these chemicals are common in American diets. Your attorney will also question the manner in which you breathed into the breathalyzer. For example, a long deep breadth (longer than 10 seconds) may result in a higher than normal reading.
Did you perform poorly during the field sobriety test?
Lack of baseline performance: There are many factors which can cause a person to perform poorly during the field sobriety test (FST). Was the ground level? Were you distracted by passing cars and headlights? Was it cold, raining or windy? Were you wearing boots or high heels? Were you nervous and/or confused? Do you naturally have poor balance? Do you have injuries that affected your performance? In other words, would you have performed poorly on the test even without anything to drink? Field sobriety tests are an imperfect measurement of impairment. Studies have shown that 1 in 3 suspects are wrongfully arrested because of false positives from field sobriety tests. Your DUI attorney will question the accuracy of the FST in your case.
Breathalyzers often yield inaccurate high BAC levels during absorption phase.
Your attorney will question you about when you stopped drinking. It takes several hours for the alcohol to absorb into your blood. During this time the alcohol is still in your arterial blood rather than venous blood. Because your lungs rely on arterial blood (not venous) blood the readings may not be an accurate measurement of your overall blood alcohol level.
No One, Including Police Officers, Can Accurately Observe a Person’s Intoxication Level.
A recent university study shows that police officers can estimate intoxication levels only 25% of the time. Whereas the DA may claim that a trained officer is a better judge of intoxication, this simply isn’t true. Your attorney will argue that the jurors should not overly rely on the officer’s opinion on this issue.
Were you able to respond to the officer in a coherent manner?
It is common for officers to state the defendant appeared rational and alert while responding to the officer at the scene. Your attorney will take issue with this because mental impairment must be present before physical impairment. If you were not mentally impaired during the questioning, then you were not physically impaired while driving.
Can the police officer substantiate his claims of observed intoxication?
Perhaps your bloodshot eyes were a result of allergies or fatigue. Perhaps you slurred your speech because you were nervous or upset after being pulled over. Further, it is rare for a traffic cop to make a record of the observed signs of intoxication pictures, videos, audio or otherwise. Therefore, your attorney will argue to the jury that these alleged symptoms may have been the result of innocent explanations. There is no way for the DA to prove that these symptoms were necessarily the result of alcohol consumption.
Do the symptoms of intoxication match the BAC reading?
Sometimes the BAC readings are just wrong. If your observed behavior is not consistent with your tested BAC level, your attorney will question the BAC reading and the entire case. For example, a person who shows signs of slight impairment should not have a BAC level of twice the legal limit.
Acid reflux may have caused the breathalyzer to return an unusually high BAC measurement.
Most people experience some form of acid reflux after eating or drinking and in many cases without even knowing it. The issue is that the breathalyzer is supposed to measure the BAC from the suspect’s deep lung tissue which is thought to correlate with the suspect’s true BAC level. However, acid reflux can cause alcohol to travel back to the throat giving a much higher reading. If you ate a large meal just prior to being pulled over for a DUI we will ask for evidence to substantiate this fact in order to attack the breathalyzer readings in your case.
Of course the best defense to a DUI charge is to stay under the legal BAC level.
For many individuals consuming no more than 1 (one) beer per hour should keep you under the legal driving limit. Click here to estimate your BAC. Keep in mind that the guide is only an estimate. There are many variables involved including the driver’s metabolism, weight, age, content of drinks consumed as well as the number of drinks. Do not place too much reliance on this online formula.