Possible Defenses To A DUI Charge

December 29, 2011 (Press-News.org) You are sitting in your car, watching the red lights in your rearview mirror. The officer exits their vehicle and begins walking toward your car.

The next thing you know, you have been charged with a DUI. What do you do now?

You may think you have no chance, that even though you did not feel intoxicated or impaired, the blood alcohol content reading of the breathalyzer showed you were over the limit, and you are as good as convicted. Machines don't make mistakes, do they?

Challenging A DWI Charge

While it may seem an open and shut case, there may be multiple ways to challenge a DUI arrest. From constitutional violations to technical failures to witnesses not showing up at court, there are numerous grounds to attack a DUI charge.

Was The Stop Legal?

A traffic stop by a police officer constitutes a "seizure" under the Fourth Amendment of the United States Constitution. The Fourth Amendment prohibits "unreasonable searches and seizures" by the police.

In order to have the authority to stop a driver, the police officer must have "reasonable articulable suspicion." The United States Supreme Court has defined the reasonable articulable suspicion necessary to justify an investigatory stop as "something more than an inchoate and unparticularized suspicion or 'hunch' of criminal activity," but "something less than probable cause."

The courts in Virginia have said, "[t]here are no bright line rules to follow when determining whether a reasonable and articulable suspicion exists to justify an investigatory stop. Instead, the courts must consider 'the totality of the circumstances--the whole picture.' "

Often, the driver supplies the element the police need to have the reasonable suspicion; they drive too fast or too slow, they change lanes erratically or weave across the centerline, fail to signal a turn, have a light out, or anyone of a hundred possible moving violations.

But that does not imply a driver has always done something wrong. Numerous cases nationwide have occurred where individuals have been pulled over with inadequate justification.

Investigatory stops made without a reasonable suspicion are illegal, and even if the police later find some evidence of criminal activity, that evidence could be suppressed by a court because the underlying traffic stop was illegal. Including a BAC reading.

The Breathalyzer Is Always Accurate? Right?

Wrong. The breath testing machines used by police to determine the BAC of suspected drunk drivers are very sophisticated machines. They take a breath sample, subject it to chemical or spectroscopic analysis and generate a calculated blood alcohol content reading. However, they are not always accurate.

Calibration And Maintenance

Breath testing equipment, like most complex machines must be periodically maintained. Parts become dirty and must be cleaned; other parts wear out and fail. Calibration is also important for a breathalyzer, because if one of its sensors goes out of calibration, then any calculation rendered by the machine become unreliable and untrustworthy.

Experience with the Intoxilyzer breath test machines in Florida and California has resulted in machines being taken out of service because of questions of the reliability of the readings of certain machine and some prosecutions become questionable.

A breath test machine can produce dubious readings if the volume of air blown in to the machines is too great or insufficient. This can provide another avenue to attack the accuracy of the reading.

The operator needs to be periodically certified as being qualified to operate the machine, so it is always important to examine the operator's qualifications. If they have been trained improperly or lack training or certification, the validity of the test can be questioned.

Refusal?

Another problem with the breath tests occurs if you are unable to produce a sufficient volume of breath for the machine, perhaps due to medical issues, the officer can charge you with "refusal," i.e. that you refused to cooperate and provide a breath sample. Penalties for refusal include license suspension.

Other grounds to challenge a DUI arrest are procedural violations during the stop and arrest. When arrested, the officer has to read you your right against self-incrimination and your right to an attorney. These rights, popularly known as "Miranda Rights," uttered by innumerable television and movie police characters, must be given.

One can also question the officer's use of field sobriety tests and whether they were properly administered. Because of all of the possible errors that can occur during a DUI traffic stop, if you have been arrested and charged with a DUI, speaking with an attorney before you go to court is worthwhile. An attorney can identify potential mistakes or errors committed by the police and explain the defenses that may be available for your specific case.

Article provided by Raj Dua
Visit us at www.fairfaxcriminalattorney.com