When charged with a DUI, you may feel that you are stuck in a deep hole and there is no way out. Don’t despair. In this blog post, we will discuss ways to combat a DUI charge and ultimately get out of the hole.
Here are some defenses that our DUI attorneys can use to avoid a conviction or to reduce penalties:
1. Breath Test Operator Uncertified – If the breath test operator did not have a valid certification, then the results may not be admissible.
2. Twenty-Minute Rule Not Applied – Breath test results can be thrown out if the officer did not watch the person for the required 20 minutes prior to taking breath samples.
3. Breath Test Refusal Penalties were not Explained – Per the recent Supreme Court of the United States decision in Birchfield, the government cannot seek to enhance your criminal penalty if you refused and you were threatened with increased criminal penalties if you were to refuse.
4. False Positive Results – Breath test machines may inaccurately read certain chemicals in cough syrup, chewing gum, and even the yeast in pizza dough causing elevated BrAC results. Furthermore, if you were to suffer from diabetes, esophageal hernia, GERD gastroesophageal reflux disease, or other illnesses the readings can be inaccurate. Even a fever can elevate the readings.
5. You were Stopped Illegally – If the officer stopped your vehicle without a reasonable suspicion, like a motor vehicle violation, then all evidence that was obtained following the illegal stop may be inadmissible.
6. Use of Invalid Field Sobriety Tests – To test for probable cause to arrest, there are only three field sobriety tests that are standardized: the Horizontal Gaze Nystagmus test, the Walk-and-Turn test, and the One Leg Stand Test. Other field sobriety tests, such as the alphabet recitation test, finger-to-nose test, and Romberg Balance test are not scientifically validated in determining intoxication. Other factors, such as pre-exisiting medical conditions, acute injuries, obesity, neurological conditions and age can also invalidate the results of these tests.
7. Withholding of Evidence by Prosecution – The prosecution is legally obliged to provide all exculpatory evidence in its possession. If they fail to respond to a motion in court and turn over all evidence being withheld, then the entire case may be dismissed.
8. Video Tapes – Many times the video recordings that were made of the roadside arrest and of what transpired at the police station, reveal inconsistencies in the police reports. Additionally, these video recordings can be used to show that the individual was operating the vehicle without problems, did not have balance problems, was not incoherent, and did not slur his or her speech.
9. Blame it On the Rain – Rain, sleet, snow, can be used to explain certain driving behavior and physical balance problems.
10. Blood Testing – If proper procedures were not followed or there is bad science in the lab, then contamination or other issues surroudnin gthe instrument could compromise the validity of the results. We have uncovered a lot of issues with testing in labs.
Don’t let a DUI charge turn into a DUI conviction. Call the expert attorneys at The McShane Firm to fight those charges aggressively. Call for your FREE initial consultation at 1-866-McShane.
One response to “THE DUI SINK HOLE – BEATING THE DUI CHARGE (Part 5 of 5)”
Jackie Schaffer says:
My son is 22 & was pulled over by the PSP Avondale Corporal on11/25 (exact time on my son’s dash cam). He was speeding, there is no denial of this he has the tickets & points to show this is a problem. He was on rte 52, and I watched the footage and he drove at a high speed; however, he drove as if the car was on tracks, not once crossing over the lines. PSP came up behind with lights (no siren). Tyler pulls over and, on his cam, you hear PSP on speaker instructing him to either throw the keys out of the car (push ignition) or get out of the car. (Dash cam cuts off) He got out and I assume either his nerves or fear he immediately laid on the ground face down. PSP must have spoken to him & at some point asked to search the car. Tyler consents. Upon the search of the car PSP found (not in plain view) 2 small bags with only white residue in them. I will tell you that Tyler has a guy he does car detailing with (Tyler is the owner of this company & this guy is an issue) as a mother I knew this kid was a problem, but my son did not listen until recently. PSP states “Well, there is no sense in a field sobriety” and immediately moved to arrest. He was taken to CHESCO ED and blood was drawn. After the tech (I have the paper) drew his blood realized that implied consent was not read to him. Tyler states that the PSP then read this to him. This is obvious on the paper as the “time drawn” is “scribbled over” but still can clearly see the (040) which I assume was 04:00 and the time written next to it was 3:55. At the top corner where his DL # is the time is noted as 3:45. He was taken to the station and processed for arrest (fingerprints & mug shot). At NO POINT during the entire incident was his person searched & his car did not appear to be searched when we picked it up from impound on Friday. What was in disarray was that his dash cam wires and mic which are in the console were all unplugged and hanging out. The dash cam does not operate if the car in not turned on, so I do not know the reason behind this. Tyler has NEVER been in trouble other than speeding tickets. He drives an Infiniti G37, 6 speed, dark tint & loud exhaust (not the car I bought him, which was a stylish G37 sedan, grey) which lost a fight with a deer on route one over 8 months ago. I do not want him to do the ARD because in CHESCO if he does, he waves his preliminary hearing in addition to the fact that he has not been charged, and often the results are unknown until the preliminary hearing for some reason. I do not see how he could be charged because there is a clear lack of probable cause and this is not the first time the PSP have done this to him, another incident was at 9am a couple months ago when he went around a speed bump to avoid it intentionally because he was on his way to a job with a lot of chemicals and cleaners for a ceramic coating job. This trooper DID PULL him out and do a field sobriety at 9 am! He obviously passed, but the trooper was just as intrusive by going in the car w/o consent and when he realized that Tyler has not only front dash cams but also rear he backed out of the car and his “questioning” stopped, yet still was arrogant (not against the law), but what this corporal did to my son is not the law and he lacked all probable cause to arrest not one field sobriety test performed, not even a breathalyzer. I am aware of the community’s opinion of the Avondale PSP. I lived in the Embreville PSP territory for 18 years before we moved here and I must agree with the community, especially that this was the Corporal that did this & after that morning.
One last thing, the corporal was at my home last January 2020 when he and 4 other troopers arrested a stalker that had been harassing and threatening. This man they arrested fought the corporal and attempted to fight the others. When he called me for Tyler, I recognized his name and reminded him of the incident. I work with many of the senators and know many of the sheriffs and attorneys at the courthouse. I do not know if his response of “Oh, I will cut him a break” is meant to really cut him a break, although from paraphernalia (barely), a misdemeanor or because he is aware that maybe I know enough to know that this arrest stinks of a “false arrest”. I do not know that answer. I am a consultant and advocate that owns my own business for Civil Rights, Medical Mal, Wrongful Death and Special Education. (The med mal and wrongful death clients come to me, and I review the records as an RN with a sharp eye and some training in Risk Management, by no means do I ever interpret the law. Only for special education unless it gets to the due process level, for that I have a partner. Not sure… I am hoping that you can tell me what you think and help because I will not suggest he does ARD which in CHESCO assigns a guilty plea, I cannot as a mother in good conscious tell my son to do this when we don’t know what led to the actual arrest without any knowledge of his level of impairment (if any). I can tell you that I saw him about 30 minutes prior to getting pulled over and he was not “drunk”. He definitely had clear speech, clear eyes, and steady gait. I also did ten years of emergency nursing so trust me I have seen my share of buzzed and drunks in addition to seeing my son as both as well. Thank you so much for taking the time to review this and I look forward to speaking with you. Truly, Jackie Schaffer