Increasingly, the police are under great pressure from advocacy groups to make more DUI arrests. Understandably this has resulted in a larger number of “borderline” cases, or, cases in which an arrest should not have been made at all. The prosecutor’s burden in proving DUI is governed by the same rules of law and evidence required by the courts in most cases. However, unlike most charges, the arresting officer’s testimony relies on his “opinion” of your impairment relating to your ability to drive and your normal faculties. In addition, there may also be scientific evidence such as a breath test. In a typical DUI prosecution the state presents evidence regarding your driving pattern, your performance on “field sobriety tests”, and the results of a breath test. Although the evidence against a driver may seem strong at first glance, there are good defenses to the different segments of the state’s case. A lack of evidence can be brought to the prosecutor’s attention to secure a reduction to a lesser charge such as reckless driving, or possibly dismissal of the case.
Usually in a DUI case the officer documents what you did wrong, not what you did right. For instance, the officer’s report may indicate you were weaving. However, officers usually don’t document proper driving behavior such as your speed, you were not following other vehicles too closely, and you obeyed all traffic signs.
There may be other factors to consider such as: road condition (i.e. lack of lighting, road construction, adverse weather conditions, traffic congestion), confusing road signs, you’re unfamiliarity with the area, and mechanical difficulties with your vehicle.
In addition, if the officer did not have a valid legal reason to stop your vehicle the court may exclude all evidence against you. This could result in the dismissal of your charge.
Field Sobriety Tests
As part of an officer’s DUI investigation they typically request a driver to perform field sobriety tests. These tests could include standing on one leg, touching your finger to your nose, reciting the alphabet, and walking each step with the heal of one foot touching the toe of another. The officer then “scores” your performance on these tests to determine whether a driver should be arrested. Most people are surprised to learn the criteria for “scoring” is very strict on the driver, i.e. more than one small mistake on a test is considered a failure. For example, the “heal-to-toe” test has more than a dozen scoring criteria. If a driver misses or forgets more than one step the result is scored as a failure and the driver may be susceptible to arrest. This may be the case even if the driver has physical disabilities.
Generally, most police agencies videotape your performance of the field sobriety tests. I can order a copy of the videotape and we can review and evaluate your performance of the field sobriety tests. We can determine if your performance on the tests is consistent with the officer’s version in his police report. The videotape can be compelling evidence and a person who looks good performing the tests can often be a good candidate for a reduction of the DUI charge regardless of the “score” given by the officer.
The Breath Test
The breath test results may be inaccurate or unreliable for a variety of reasons. Inaccurate intoxilyzer readings could be caused by such things as the failure of the police to observe you for 20 minutes before the test, the lack of proper training and licensing of the operator, and hiccups or burping. Occasionally, an exceptional performance of the field sobriety tests on videotape can cast doubt on the accuracy of a high breath test result.
I can secure the intoxilyzer maintenance records and review the qualifications of the breath test operator. We can explore possible defenses such as whether your actual blood alcohol level may have been below the legal limit at the time of driving (even though it was above the per se limit at the time of testing). My office also uses state-of-the-art software to check the accuracy of your breath test results.
To fully understand your options, a thorough evaluation of the state’s case by an experienced attorney is critical.