DUII Defenses

DUII Defenses

A conviction for drunk driving can translate into jail time, loss of your driver’s license, financial hardship, and other life-changing consequences.  There are many DUII defenses that may reduce or even dismiss your charges.  If any of your Constitutional or Statutory rights were violated during the stop, search or arrest process, an experienced DUII attorney may be able to get the case dismissed.

 Constitutional and Statutory Rights

 A DUII arrest typically begins with a traffic stop, search and seizure of evidence, and ultimately an arrest and custodial interrogation.  A DUII defendant has important legal rights under the Constitution and Statutory laws.  If these rights are violated, the evidence against you can be excluded and the case may be dismissed.

 Unlawful Stop.  The Fourth Amendment to the United States Constitution protects DUII defendants from unreasonable stops.  The Fourth Amendment provides that “the right of the people to be secure in their person, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by an oath or affirmation, particularly describing the places to be searched, and the persons or things to be seized.”  Accordingly, when evidence is wrongfully obtained by the police as a result of an unlawful stop or an unlawful search and seizure, it is a violation of your Constitutional rights and may be inadmissible in a court of law. 

  •  Traffic Stops.  You cannot be pulled over merely on a hunch, a police officer must have probable cause, i.e., a reasonable suspicion a crime has been committed for a traffic stop to be lawful.  Proper traffic stops include running a red light, speeding, reckless driving, or failure to maintain your lane.
  • Sobriety Checkpoints.  The State has enacted zero tolerance DUII enforcement laws in the past few years.  Traffic sobriety checkpoints are a product of these efforts.  Sobriety checkpoints have rules which must be strictly adhered to, including certification requirements and advance notice to the public.

 Unlawful Search and Seizure.  The police cannot search your vehicle without your consent or a valid search warrant, or arrest you without probable cause.  The officer must have a reasonable belief that a crime has or is being committed.  Unlawful search and seizure provides a ground for having your case dismissed or evidence excluded.

 Violation of Your Miranda Warnings.  Miranda warnings arise out of the Fifth Amendment Constitutional right against self-incrimination.  Miranda warnings provide “you have the right to remain silent, anything you say can and will be used against you in a court of law.  You have a right to an attorney.  If you cannot afford an attorney, one will be appointed for you at no cost.”  Failure to inform you of your Miranda rights or questioning after you ask for an attorney can result in any statement you make being suppressed and your case dismissed.  Contact our offices for more information if you or someone you know has experienced a violation of the Miranda warnings resulting in being charged for a DUII.

If any of your Constitutional or statutory rights were violated during a stop, search or arrest process, an experienced DUII attorney may be able to get the case dismissed or the charges reduced.

DUII Tests

Blood Alcohol Content “BAC” is generally an essential element of any valid DUII charge and conviction.  As a general rule, a BAC of .08 or above is sufficient for a standard driver’s license, or a BAC of .04 for a commercial driver’s license, to support a DUII conviction.

Many people fail to realize that is common practice to be charged with DUII with a blood alcohol content under .08 if the state can establish beyond a reasonable doubt that the driver was impaired as a result of drugs or alcohol.  This includes any prescription medication which impairs your ability to drive.

Field Sobriety Tests.  Field sobriety tests are used by police officers to support probable cause for a DUII arrest.  These tests are routinely abused and subjectively interpreted by police officers to support a DUII citation.  Field sobriety tests are roadside physical and psychological tests used by police officers determine whether a driver is under the influence of drugs or alcohol.  These tests routinely include the following: 

  • Horizontal Gaze Nystagmus “HGH.”  This test involves using a flashlight to track the movement of your eyes.
  • Walk and Turn.  This test usually involves attempting to walk a straight line with one foot in front of the other.
  • One Leg Stand.  This test involves being able to properly balance oneself by standing on one leg.
  • Rhomberg.  This test requires the suspect to stand with their feet together, head tilted slightly back, eyes closed while estimating the passage of 30 seconds. 
  • Alphabet.  This test often involves stating the alphabet backwards.
  • Finger to Nose.
  • Finger Count.
  • Backwards Count.

 An experienced DUII attorney can challenge field sobriety tests by emphasizing:

  •  Emotional basis of the ordeal independent of alcohol consumption affecting the defendant’s ability to perform tests.
  • Test conditions were less than ideal.
  • The officer was already preprogrammed for a poor performance by his/her initial conclusion regarding defendant’s sobriety.
  • Many people, even under ideal conditions, have trouble doing the test.
  • The absence of basic fairness, such as the officer gave the Defendant only one chance and the Defendant may have misunderstood the test.
  • Officer did not tell the Defendant he/she was performing the test incorrectly so that Defendant could correct his/her mistake.
  • Officer did not utilize all the tests.
  • How physical and health limitations make the test impossible.

Chemical Tests.  Chemical tests used to determine BAC include blood tests, urine tests and breath analyzers such as the breathalyzer or intoxilyzer.  The State uses chemical tests to show a blood alcohol content of .08 or higher at the time of driving.  Time delays between the alleged drunk driving and the time of testing, must be analyzed to determine the validity of any test.  This area is complicated and requires the advice of an experienced DUII attorney.  A DUII attorney can examine whether the tests were administered properly and whether the results were correctly interpreted.

DUII Affirmative Defenses.

The affirmative defenses available to you will depend on the facts and circumstances of your individual case.  These defenses may include:

  • Improper venue.
  • Statute of limitations.
  • Speedy trial.
  • Collateral estoppel.
  • Involuntary intoxication.
  • Arrest.
  • Necessity.

The requirements and application of affirmative defenses to your specific DUII charge require an experienced DUII attorney.  For more information, contact the Law Offices of Paul F. Sherman for a FREE DUII CONSULTATION to evaluate whether any of these defenses can be raised on your behalf.

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About pfs2law

LAW OFFICES OF PAUL F. SHERMAN
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