MESSAGE:

DUI Defenses

Since the area of DUI law is so complex, the defenses to DUI cases are limitless.  One of the most important aspects of building a strong defense in your case is to contact a skilled attorney who is experienced in handling DUIs to begin securing your defense!

Remember that no case is created equal and even though it may appear you have a defense, it may not work in your case.  On the other hand, if you have a skilled attorney, she will spot issues that may give rise to some other unique defense(s), leveraging the negotiations in your case!  The following is a general overview of some of the more common defenses used in DUI law:

1. Driving Defenses: Intoxication is not enough; the prosecution must also prove that the defendant was driving. This may be difficult if the offender was not seen driving or not at the scene when police arrived.  If there are no witnesses as to who was the driver of the vehicle, it is difficult for the prosecutor to prove the case.



2. Challenging Probable Cause for the stop: Evidence will be suppressed if the officer did not have probable cause to (a) stop, (b) detain, and (c) arrest. Sobriety roadblocks present particularly complex issues.



3. Failure to give Miranda Warning: Incriminating statements may be suppressed if warnings were not given at the appropriate time.



4. Challenging Implied Consent Warnings: If the officer did not advise you of the consequences of refusing to take a chemical test, or gave it incorrectly, this may affect admissibility of the test results, as well as the license suspension imposed by DMV.



5. Challenging "under the influence": The officer's observations and opinions as to intoxication can be questioned.  The circumstances under which the field sobriety tests were given, for example, or the subjective (and predisposed) nature of what the officer considers "showing impairment." Additionally, witnesses can testify that you appeared to be sober.



6. Challenging Blood-Alcohol Concentration: There exists a wide range of potential problems with blood & breath testing. "Non-specific" analysis, for example: most breath machines will register many chemical compounds found on the human breath as alcohol. And breath machines assume a 2100-to-1 ratio in converting alcohol in the breath into alcohol in the blood; in fact, this ratio varies widely from person to person (and within a person from one moment to another). Radio frequency interference can result in inaccurate readings. These and other defects in analysis can be brought out in cross-examination of the prosecution's expert witness, and/or the defense can hire its own forensic chemist.



7. Rising Blood Alcohol Defense/Testing During the Absorptive Phase: The blood, breath or urine test will is unreliable if done while you are still actively absorbing alcohol (it takes 30 minutes to three hours for complete absorption; this can be delayed if food is present in the stomach). Thus, drinking "one for the road" can cause inaccurate test results.



8. Relation Back Theory/ Retrograde Extrapolation: This refers to the issue the BAC be "related back" in time from the test to the time of driving. Again, a number of complex physiological problems are involved here.



9. Mouth Alcohol:  This refers to the theory that other factors created an unreliable BAC reading, such as mouth-wash, belching, hiccupping, vomiting, or acid reflux that occurs just prior to the administration of the test.



10. Regulation of blood-alcohol testing. The prosecution must prove that the blood, breath or urine test complied with state requirements as to calibration, maintenance.



11. License suspension hearings. A number of issues can be raised at the DMV APS hearing to defend the license suspension.

WHAT IS MOUTH ALCOHOL?
"Mouth alcohol" refers to the existence of any alcohol in the mouth or esophagus. If mouth alcohol is present during a breath test, results could be falsely high. This would lead to the wrongful conviction of some drivers. This is because the breath machine assumes that the breath is from the lungs and for complex physiological reasons, its internal computer multiplies the amount of alcohol in your breath by 2100 to obtain your estimated blood-alcohol content or “BAC”.  Thus, even a tiny amount of alcohol breathed directly into the machine from the mouth or throat rather than from the lungs can have a significant impact on the BAC reading.

Mouth alcohol can be caused in many ways, such as belching, burping, hiccupping, or vomiting.  If this happens within 20 to 30 minutes of taking the test, it could bring vapor from alcoholic beverages still in the stomach up into the mouth and throat. Taking a breath freshener can send a machine's reading way up (such products as Binaca® and Listerine® have alcohol in them); cough syrups and other products also contain alcohol. Dental bridges and dental caps can trap alcohol which will also increase a BAC reading. Blood in the mouth from an injury is yet another source of inaccurate breath test results.  Any alcohol from the blood breathed into the mouthpiece will be multiplied 2100 times, and even chewing tobacco or gum could trap tiny micro particles of alcohol.  A chronic "reflux" condition from gastric distress or a hiatal hernia can cause elevated BAC readings.

It is important that you talk to your attorney about any of these conditions that may have been present during the time of your breath test.  To learn more about a mouth-alcohol defense or any other defense in your case, contact the Amerio Law Firm today!

It is important to begin securing your defense immediately after you are arrested for DUI, therefore, you must avoid the following:

CAUTION: TOP 10 MISTAKES AFTER BEING ARRESTED FOR DUI!

1. Not taking the matter seriously.
   DUI charges will follow you for the rest of your life if you are convicted. Just the increase in your insurance rates could cost you thousands of dollars.



2. Not hiring an attorney.
   The law is complex and you need skilled representation. You must raise the right defenses at the right time or you will lose them. Facts will disappear, memories fade and witnesses vanish. A winnable case can quickly become a dead-bang loser!



3. Hiring an attorney based on the amount of the fee alone.
   The prosecution has nearly unlimited resources when it comes to your case. You need to hire an attorney and pay a fee which will allow her to put the necessary time and effort into your case to counter the prosecution. 



4. Not complying with driver's license laws.
   You could lose your right to drive for good.



5. Driving after your license has been taken away.
   This is an additional misdemeanor on your record and the fines are almost equivalent to the fines associated with a DUI!



6. Not taking full advantage of your constitutional rights.
   Consult your attorney before you waive any right!



7. Taking the prosecutor's first offer. The first offer is not a bargain!  The DA wants to get rid of your case as easily and as quickly as possible, with the least amount of work. Very few cases are dismissed or reduced to a non-alcohol charge at this stage. You do not give the judge an opportunity to rule on constitutional challenges. You give up your right to raise these issues and make the prosecutor prove its case.



8. Failing to appear in Court.
   The Court will issue a bench warrant for your arrest and revoke any bond. The next time you are stopped for a traffic infraction, you will be spending some time in jail and posting a bond for your future appearances.



9. Discussing your case with someone other than your attorney.
   Anything you say to anyone can be used against you by the prosecutor.



10. Believing that after consulting with a few attorneys, you can handle your own case.
    You need legal counsel both in and out of Court to build your defense and negotiate on your behalf.  The prosecution does not usually bargain with pro se offenders.