Challenging the Legality of the DUI Stop outside of a DUI Checkpoint
Police must always have a reason as to why they would make a traffic stop. They cannot pull you over without just cause. This is called “reasonable suspicion” and means that the police have reason to believe that you may have committed a crime. Should the police have reasonable suspicion, they may pull you over and ask to see your license and registration. They may also frisk you for weapons, but at this point, they do not have the right to search your car or belongings.
During this short investigation, the police officer may request to perform a field sobriety or breathalyzer test on you. While you have the right to refuse this test, there will be consequences in the form of your license being legally removed for a year. It is recommended that you refuse the Standardized Field Sobriety Test, known as the SFST, but you will not be able to refuse a breath or blood test with impunity. Simply put, SFSTs are not always accurate, but they have the possibility of affecting the outcome of your court case. SFSTs include a series of three tests, which are the horizontal gaze nystagmus test, the walk-and-turn test and the one-leg stand test. Needless to say, there are numerous reasons why you may not be able to pass these tests even if you are not driving under the influence.
In general, most traffic stops that end up in DUI charges start as little more than civil infractions related to poor driving techniques. For example, you are most likely to be stopped if you are speeding, turning from the incorrect lane, driving on the shoulder, driving too slowly or driving through a red light or stop sign. Also, police are likely to pull you over if you drive offensively by weaving through traffic or following other drivers too closely. Finally, police will have a reasonable excuse to pull you over if you are driving with expired tabs or have a burned out headlight or taillight.
While police have numerous reasons to pull you over, these will only be allowed in court if they come under the title of reasonable suspicion. The cause for the traffic stop must be written in the traffic report for a judge and jury to clearly see should you go to court. If your lawyer can prove that the traffic stop was not legal, your case has a good shot at being thrown out of court without any other evidence being presented.
Remember that whether or not you believe that your traffic stop is lawful, it is in your best interests to remain calm and to do as the police officers request rather than to be belligerent and refuse to cooperate. If you make their traffic stop disagreeable, they may very well come up with criminal charges against you when there may have been none in the first place.
Also, keep in mind that a DUI traffic stop is different from a DUI checkpoint. At a checkpoint, officers do not need to have reasonable suspicion to pull you over even in states that generally require reasonable suspicion. This is due to the U.S. Supreme Court ruling of 1990 that said that it was more important to eradicate drunk driving than it was to retain the privacy of drivers. The Supreme Court found that the searches were reasonable in this case and did not go against the 4th Amendment. However, several states still maintain independently that these sobriety checkpoints are illegal.
If you are stopped at a checkpoint or at a random traffic stop, remain calm. While you can disagree with what officers say, ensure that you do so in a respectful manner and without arguing. Be sure to show them your driver’s license and proof of registration if requested, but let the officers know if you need to reach into your glovebox or purse to gather them. It is your right not to have to answer personal questions, such as where you have been or what you have been drinking.
At this point, you should also know the difference between “reasonable suspicion” and “probable cause.” Most of the time when you are pulled over, the police officer is doing it because he has a reasonable suspicion that something illegal may be happening. He does not have actual facts yet to support him in his claim. Probable cause is more powerful than reasonable suspicion because it gives police officers the ability to arrest you. Probable cause occurs when the police can delineate actual things you have done wrong when pulling you over. It should be supported by facts rather than by guesswork as reasonable suspicion is. Remember that without probable cause, the police cannot legally arrest you. However, if, during a DUI stop, the police officer discovers facts or items that gives him or her justification for probable cause, he will be able to arrest you.
The key to a successful DUI stop is to ensure that you do not give the officers any reason to charge you with extra criminal activity. Should this happen, you will be hard pressed to get out of the charges with a clean record intact. Even if you make it out without a DUI charge, you may be charged with obstruction of justice.
In many cases, a talented attorney will be able to prove the illegality of your charge in court if there was no reasonable cause for the traffic stop. In fact, this is often the easiest way to get a DUI case thrown out of court. If your lawyer can prove that you were pulled over illegally, then all of the evidence collected by police after that, even if it was positive for DUI, will be inadmissible in court. Of course, you will need a talented lawyer to get you through this tangled mess, but with the right legal counsel, you should see your charges dropped immediately in court.
Disputing Suspicion You Were Under the Influence
If you are pulled over for reasonable suspicion that you are driving under the influence of alcohol, the police officer will be looking for specific signs that will tell him that you are indeed intoxicated. For example, the officer will ask you questions to determine if your speech is slurred. He will also notice how well you move by noting gross and fine motor movements as you hand him your license and registration and as you pull the window up or down. Other signs for which he will be watching include open bottles of alcohol in the vehicle and the smell of alcohol or drugs in the vehicle or on your breath. He may even shine a flashlight into your eyes to see how well they focus, whether they are bloodshot and how dilated or constricted the pupils are. In most cases, any abnormal findings during this preliminary investigation, which only takes a few brief moments for the officer to perform, will be noted in his report.
Of course, even before you are stopped, the police officer will have noted other signs that you could have been driving under the influence of alcohol. For example, he or she may have noted whether you were swerving or whether you had difficulty staying in your lane. Other signs that you may be driving while intoxicated include failing to obey traffic laws and driving offensively.
Keep in mind that whether or not you think you are drunk or feel intoxicated is not the question. You may feel that none of your mental or verbal skills have changed at all. However, in many states, only a small amount of alcohol can render you incapacitated for driving and may leave your blood alcohol level raised significantly enough to lead to a DUI.
As you can imagine, the reason for any of these suspicious activities may not be related merely to drunk driving. In fact, there are many physical and mental reasons as to why you could have been driving erratically or why you appeared intoxicated when the officer looked at and talked to you. Consider some of these reasons for erratic driving that are unrelated to blood alcohol level.
• Using buttons or dials on your dashboard
This could include changing the radio station or CD, changing the thermostat or using in-car entertainment or GPS systems.
• Using your cell phone or smart phone
This is definitely not a safe activity and is one that is not allowed in many states. In fact, numerous states list texting while driving as a fineable offense, and others only allow drivers to use hands-free devices for talking on the phone while driving. Consider pulling over before using your smart phone in the car.
• Looking away from the road while driving
Glancing down for a moment, taking your hands off the wheel or looking at a passenger can cause you to swerve from your lane or accidentally slow down or speed up.
• Difficulty seeing the road
You may have more problems seeing the road as you grow older, especially during night driving. Glare from the sun or rain as well as whiteouts from fog or snow can impair your driving ability.
• Simple negligence
• Poor concentration due to being followed by a police officer
Many police officers know this phenomenon as “black-and-white fever.” This is a psychological scenario in which individuals who know they are being followed by a police officer begin driving erratically because they are paying so much attention to the police car in their side view and rearview mirrors. This breaks the driver’s concentration and can lead to speeding as well as weaving.
Of course, while the majority of these reasons are not good excuses and could certainly end in an accident, they should not lead to a DUI arrest. Depending on the extent of your dangerous driving, you could end up with a charge of reckless driving, especially if you were involved in an accident, but with the help of a good attorney, it should be proven that you were not intoxicated at the time.
Additionally, consider these reasons for your physical and mental signs and symptoms of intoxication when the officer pulls you over.
Epilepsy can cause seizures that may be accompanied by odd behavior, such as dizziness, unresponsiveness and a sense of detachment from what is going on around you. While it can cause you to have your license taken away, it is not cause for a DUI.
• Brain injuries
Brain injuries may occur after blows to the head and can lead to extreme drowsiness, slurred speech and poor hand-eye coordination.
Diabetes with poorly controlled blood sugar or undiagnosed diabetes can lead to ketosis, which has the smell of acetone on the breath as a symptoms. Additionally, low blood sugar can lead to aggressive behavior, dizziness and poor concentration.
• Alzheimer’s disease
Alzheimer’s leads to progressive mood and personality changes, including confusion and anger. Those with Alzheimer’s often act disoriented or may mumble.
• Prescription and over-the-counter medications
Numerous medications can cause drowsiness, which can lead to difficulty with driving. In addition, some can cause visual changes and poor response time.
• Gastrointestinal disorders
While it is somewhat unusual, some GI disorders in which digestion is slowed can lead to fermentation in the gut and the smell of alcohol on the breath even if you do not ingest any alcohol.
• Mouthwash or cough syrup use
Many of these over-the-counter products contain alcohol and can lead to odor on the breath.
With the help of a good attorney and possibly with the help of a doctor, you may be able to disprove the officer’s initial findings of intoxication if you are arrested for DUI. Your attorney may suggest using dash cam footage or video footage from the police station holding cell to uphold the case that you were not acting in a way that showed intoxication despite what the arrest report state.
Questioning the Efficacy of Field Sobriety Tests
If you have been pulled over for reasonable suspicion of DUI, the law enforcement officer will most likely ask you to undergo one or several tests to determine if you are intoxicated. Most will begin with the field sobriety tests before moving on to a breathalyzer test or a blood test if your field sobriety test is positive. Law enforcement believes that these tests are good initial indicators of your blood alcohol level, and they often rely upon them as they make their reports and when they testify in court against you at a DUI hearing. Knowing more about them will help you and your attorney fight your case and get your penalty reduced or your case dismissed altogether.
There are three main parts to field sobriety tests. These tests have been around since the early 80’s after researchers from the U.S. National Highway Traffic Safety Administration, or NHTSA, gave this recommendation for testing for intoxication on the road. The tests are supposed to show the difference between a blood alcohol concentration above 0.08% versus below the same level.
Upon the officer’s decision to have you perform the tests, he or she will ask you to leave your car. The first test is known as the horizontal gaze nystagmus test. This test allows the law enforcement official to test your eyes for jerking when you are gazing peripherally. There are six cues altogether that they are looking for, and the number of cues that are positive supposedly determines an approximation of your blood alcohol level. The cues include smooth eye movement, nystagmus or jerking when the eyes are at their full peripheral levels and nystagums at 45% of the periphery; the three tests are performed on each eye for a total of six cues. The NHTSA states that blood alcohol levels are greater than 0.06% if 4 to 6 cues are positive.
The second standardized test is the walk-and-turn test. During this test, you will be asked to walk heel-toe-heel-toe down a straight line. After walking a certain number of steps, you will be asked to turn and perform the same steps back down the line. You will need good coordination, attention and balance to perform the test properly. Law enforcement believes that this is a good test of a person’s divided attention levels, which are needed to drive a vehicle.
During the one-leg-stand test, you will be asked to stand on one foot with the other foot a few inches off the ground. Typically, you will be asked to count to a certain number. Officers will watch to see if you need to use your arms for balance or if you noticeably sway. Of course, having to put your foot down before the allotted time is completed is also considered a positive result.
According to the NHTSA, they believe that the results of these tests are accurate over 90% of the time. Protocol states that officers should administer a breathalyzer test or blood test on you if you fail the standardized field sobriety tests.
However, numerous law enforcement officers have their own tests that they may use as part of their field sobriety tests. For example, they may ask you to recite the alphabet, count backwards, count fingers on their hands or touch your nose with your finger while you close your eyes. It is most likely that you will be asked to perform these nonstandardized tests if you live in a state in which standardized tests only allow the officer to detain you rather than give them reason to arrest you.
If you are intoxicated, you very well may perform poorly on some or all of these tests. On the other hand, several other reasons exist beyond intoxication for poor performance on field sobriety tests. The following list shows you just a few other reasons for them.
• Medical conditions
A variety of medical conditions can limit your movements, impair your balance or destroy your normal coordination skills. Some examples include prior injuries, fused spinal discs, acute or chronic pain, brain injuries and epilepsy. In addition, numerous medications can also impair your test results.
Being overweight can impact how you see your feet and the road for a walk-and-turn test and can impair your sense of balance.
• Eye conditions
Poor eyesight as well as chronic conditions, such as glaucoma and cataracts, can impair your movements when walking and can give incorrect results for the horizontal gaze nystagmus test.
• Poor road surfaces
Slippery surfaces from rain, snow and ice can impact your movements once you are out of the car.
Certain clothing will impair your movements when walking and turning while billowing clothing can cause you to lose your balance in the wind.
Shoes without good rubber grips on the bottom as well as heeled shoes or wedges can cause you to slip while walking or to lose your balance.
Many attorneys today recommend refusing the field sobriety tests. Doing this will not hurt you because refusal of this battery of tests is not cause for having your license revoked such as can happen if you refuse a BAC blood test. The results of these tests will only be used by the officers as additional evidence against you. In fact, many courts have disproven the efficacy of these tests. As always, never argue with the police officer or become belligerent. Merely state politely that you refuse the test.
However, if you did agree to field sobriety tests, an attorney may be able to dispute the legality or efficacy of the results for numerous reasons. Standardized and nonstandardized field sobriety tests are fairly arbitrary assessments performed by law enforcement officers that often do not adequately portray how intoxicated you are or whether you have consumed alcohol at all. Often, your nerves alone can change your results. Request legal counsel as soon as you are arrested to see if your performance on these tests can be disproven as evidence.
Challenging BAC Results From a Breathalyzer
If you have been stopped by law enforcement personnel while driving and have failed or refused to take their field sobriety tests, you will next be required to have your blood alcohol level, known as BAC, tested. Most officers like to start with the breathalyzer, which supposedly measures the level of alcohol in your bloodstream by using your breath as a sample. This is an easy testing method for officers because it requires almost no work on their part. The test can be performed on the side of the road and generally only takes a minute or two to perform.
It should be noted that a breathalyzer does not measure the actual level of alcohol in the bloodstream. Instead, it estimates the number by using a series of formulas and your breath. While desktop analyzers that use infrared spectrophotometers do exist, chances are that you would have been tested using a handheld field testing device.
The breathalyzer test is performed in three simple steps. First, a mouthpiece is attached to the breathalyzer before it is turned on. Next, officers will wait for the unit to warm up and display the instruction to “blow.” You will then be asked to blow into the device for approximately four seconds while the device beeps. Finally, the device will display what it believes to be your BAC.
Most law enforcement officers and members of juries take the results of a breath test as unalterably accurate and believe that if the breathalyzer showed the BAC to be over 0.08% then the individual is guilty of a DUI. Breathalyzers certainly are more scientific than field sobriety tests are. This is due to the fact that they display objective data rather than subjective data taken from what the law enforcement officer believes he or she is seeing or hearing.
However, breathalyzer tests are not as scientific as you may think, and they have been proven to be flawed by several studies and court cases. For example, one peer-reviewed study by LaBianca, Simpson, Thompson et.al. showed that there was a 50% margin of error in results from the breathalyzer. This is huge and can mean the difference between a conviction and an acquittal. For example, if the breathalyzer shows a reading of 0.1%, which is high in every state, the real BAC could actually be anywhere between 0.05% and 0.15%. Breathalyzer readings that are below 0.1% should not be taken as definitive guilty statuses. Sadly, though, most states still take breathalyzer readings as being as accurate as blood alcohol content readings are, leading to numerous incorrect DUI convictions.
Even if the scientific workings of the breathalyzer test were accurate, numerous factors can affect the veracity of the numbers that the device gives. Many of these problems are related to equipment problems as can be seen below.
• Poor maintenance
Every breathalyzer must be properly calibrated at regular intervals to ensure that it continues to give accurate results. These devices must typically be recalibrated every six months to one year to ensure that the sensors are still working correctly and that they do not need to be adjusted.
Even with proper calibration, some devices simply malfunction and provide fluctuating readings or readings that are falsely elevated.
• Officer error
If law enforcement personnel do not follow proper protocol for using the device, it may return falsely high numbers. Personnel must take the time necessary to perform the test accurately.
• Problems with conversion ratios
Breathalyzers are designed with 2100:1 conversion ratios. However, your personal conversion ratio could be much lower or higher than this, leading to inaccurate numbers.
• Ambient temperature
The temperature around the machine as well as any wind can directly affect the results.
• Testing time
A test undertaken while your body is still absorbing the alcohol may provide much lower results than those found up to an hour later. Therefore, a test performed at the station may read much higher than would one performed on the side of the road.
Moreover, several personal and physical factors can impact your numbers displayed by the breathalyzer.
Your metabolism directly affects how quickly alcohol is absorbed into your bloodstream.
• Breathing speed
If you hold your breath prior to taking the test, your numbers could be falsely elevated while hyperventilating could falsely lower them.
• Mouth alcohol
High levels of mouth alcohol, such as could be found if you used over-the-counter cough syrup or mouthwash, can alter breathalyzer numbers.
• Breath and body temperature
• Breath and body temperature that is increased by just a few degrees can give readings that are up to 20% higher than they should be.
Officers should refrain from performing the test for at least 20 minutes after you vomit or belch.
Acid reflux allows your stomach contents to come up into your esophagus and throat, increasing mouth alcohol levels.
Long-term smokers often have falsely elevated numbers.
• Diabetes or dieting
If you have diabetes or are on a certain diets, such as the Watkins diet, you may have high levels of acetone in your breath, which can increase breathalyzer values.
If you have taken a breathalyzer test on the side of the road and the numbers have come back positive, your defense is not necessarily over. Neither is it over if you refused the test on the side of the road but submitted to it at the police station. A good attorney may be able to challenge the veracity of the breathalyzer test based on one or more of these problem areas and may be able to get your entire case tossed out of court. If a judge and jury cannot see that your guilt is definitively proven, they will not be able to convict you of a DUI. Your attorney may be able to call these problems into question himself, or he may choose to call expert witnesses to the stand who have performed studies showing the margin of error on breathalyzers.
Challenging the Results of Blood Tests
Another option used to determine if your blood alcohol levels, or BAC, were too high at the time that you were stopped is the chemical blood test. This test may be performed after you are arrested at the police station or a medical facility. However, some units have secure vehicles that they can use at the scene to take a blood test immediately. Where, when and how your BAC is checked can have a direct bearing on whether you are convicted or acquitted of a DUI.
A blood test for BAC is certainly the most accurate option available today. Blood alcohol tests are usually considered to be accurate within 5% of the number given. Because they are so accurate, many individuals, including some DUI attorneys, assume that nothing can go wrong with them and that a positive reading assumes that you are guilty.
Blood tests are simple procedures that do not take long to accomplish and that only cause minor pain and bruising at the sight. If you are required to have a blood test, you will be seated and will have a tight band placed around your upper arm. They may ask you to clench your fist. After cleaning the area, they will poke your arm with a needle. After they fill up their test tube, they will release the tight band, remove the needle and place a bandage over the location.
A certain protocol must be followed to ensure that your blood is treated properly to ensure correct results. If the protocol is not followed, your DUI defense attorney can safely assume that an error may have occurred along the way and that the number returned is inaccurate.
Even though blood tests are so accurate, they may still deliver falsely high readings. Most of the problems occur because of human error during the collection process although some errors also occur during the testing and reporting steps. Consider the follow issues that have been seen in many cases.
• Unqualified phlebotomists
The person who draws the blood must be qualified and have plenty of experience to perform the test correctly. Unfortunately, most phlebotomists have very little training and only 40 hours of experience before performing independently.
• Incorrect blood collection
Blood specimens must be collected using sterile technique and using the proper equipment. For example, using an alcohol pad to cleanse the skin can skew results.
• Inaccurate or broken equipment
Equipment may no longer be sterile or may contain microorganisms or other specimens that will skew results.
• Poor blood storage
Upon being collected, the blood must be properly chilled before being sent to the lab.
• Blood separation
Before being chilled, the vial of blood must be shaken for 30 seconds to decrease blood separation.
• Equipment error
At the lab, equipment error or poorly calibrated equipment can give false positives.
• Reporting error
Although rare, the lab may incorrectly report the BAC number obtained.
• Range of error by the lab
In order to maintain an accurate and scientific process, the lab doing the testing should report their margin of error associated with the testing method. Labs that are accredited typically must report this.
• Chain-of-custody errors
Each law enforcement station will have a chain-of-custody protocol that they must follow to ensure that the blood is correctly obtained, stored and transferred. If this chain is not followed correctly, your sample results could be inaccurate.
• Physical issues
Certain health issues, such as diabetes and high ketone levels, can inaccurately increase your BAC.
• Over-the-counter products
Isopropyl alcohol, cough medicines and mouthwashes containing alcohol and even herbal supplements, such as kava or ginseng, can increase your BAC.
Because there are so many things that can go wrong during the blood alcohol test, most states have changed their blood-gathering kits to self-contained kits that eliminate most possibilities for error. These kits ensure that testers do not use alcohol swabs to clean the skin and that they have everything they need in a sterile environment. Most also include what will be needed to split the blood sample in two to provide you with a separate sample that you can send out to be independently tested.
Keep in mind that you may still refuse the blood test for BAC. However, most states have “implied consent” laws. These laws state that because you carry a state driver’s license, the state has the authority to test your BAC at any time. Some states even give law enforcement personnel the right to test your blood without your consent. These “implied consent” laws also allow law enforcement to obtain warrants for blood draws in a mobile setting to give them the power they need to insist on a blood test.
If you do successfully refuse the blood test, you may face severe consequences whether or not you are convicted of DUI. If you refused and are subsequently convicted of DUI, your sentencing will most likely be harsher than it would have been had you submitted to the blood test. You may even be sentenced to a longer jail time. Even if you are acquitted of DUI, most states will still take your driver’s license away from you for a year. Although the right of refusal is yours, consider the consequences carefully before making your decision.
Even though blood alcohol tests are generally seen as being conclusive evidence by most judges and juries, your attorney may be able to challenge them successfully by using some of the above points. Your attorney will simply need to prove that some integral point was not carried through on the testing or that your independently tested blood sample came back with a different number than did the sample that was tested by law enforcement. Because the BAC results are generally the best method prosecution has for convicting you, the results of your entire case can be entirely turned around if your numbers are shown to be inaccurate or inconclusive. Typically, you need a very good attorney who is willing to challenge prosecution wholeheartedly to make this defense.
Thousands of drunk drivers are arrested every year as a result of being stopped at a DUI checkpoint. However, that arrest doesn’t necessarily mean that a conviction is inevitable. It may be possible for an experienced criminal defense attorney to demonstrate that a DUI checkpoint arrest was illegal.
If you or someone you know has been arrested at a DUI checkpoint, then you need to know more about what checkpoints are and what your rights are. Getting a defense attorney’s advice in these circumstances is indispensable. Still, knowing some facts may help you to understand your situation.
DUI checkpoints, which also may be called sobriety checkpoints, are highly regulated safety measures that are used by various law enforcement agencies. They are an extremely controversial tactic that cannot be legally used in 12 states. For people living in the other 38 states, DUI checkpoints may prove to be an enormous legal headache.
In order for a DUI checkpoint to be considered legal, it must adhere to various regulations. If any of these regulations is not observed in detail, then the entire operation may be deemed illegal. The precise requirements for each checkpoint may vary by jurisdiction and numerous other factors, which is just one more reason why it makes sense to consult with a DUI attorney.
DUI checkpoints are often set up at times when law enforcement officials believe that drunk drivers are likely to be out in force. Events like New Year’s, the Super Bowl and the Fourth of July are all examples of times when you are more likely to be caught up in a DUI checkpoint.
Checkpoints are anything but spontaneous. An official typically begins planning a checkpoint a few weeks in advance so that all of the proper protocols can be observed. For instance, the official must show that setting up a checkpoint is logical and reasonable. This is because a DUI checkpoint is essentially an intrusion on your Constitutional rights. However, the U.S. Supreme Court has decided that the welfare of the public outweighs the rights of the individual where drunk driving is concerned. Certain states disagree with this conclusion, which is why DUI checkpoints are not legal in these locations.
Where sobriety checkpoints are permitted, supervisory law enforcement personnel must be involved in the planning and the execution. This means that a couple of officers out on routine patrol cannot randomly set up a checkpoint. That would clearly be an illegal operation.
Further, law enforcement must take several steps to ensure a safe and orderly checkpoint. This typically involves using signs well in advance of the stop so that motorists are informed about what’s happening. The location of the checkpoint must be well lit, and all involved officers must be clearly identified as police personnel.
Law enforcement also must use an impartial criteria for deciding which vehicles will be stopped for a closer inspection. For example, this may involve choosing to stop every third car or every tenth car. Regardless of how long the checkpoint is in place, personnel must not deviate from this criteria. If they do so, then the entire operation could be declared illegal.
Generally, the police also are required to advertise or publicize their DUI checkpoint. Signs may be placed along the road a few days in advance. Newspapers and local media stations may report on the plans. Law enforcement social media channels similarly may disclose the predetermined time and location of a DUI checkpoint. The theory behind this is that it gives motorists an opportunity of completely avoiding that stretch of road on the day and time in question. It is assumed that those who do not avoid the road are tacitly consenting to participating in the checkpoint procedure.
A good DUI defense attorney has a variety of options when it comes to showing that a DUI checkpoint arrest was illegal. Because these operations are usually carefully planned and executed, this is not always easy to do. However, a DUI lawyer with experience may be able to demonstrate that a sobriety checkpoint arrest is not as by-the-book as it appears.
For instance, there have been cases of individual police officers deciding to set up “unofficial” DUI checkpoints. These happen without the knowledge or participation of their supervising officers, nor are these operations publicized. Instead, an officer or two decides that they will reduce the number of drunk drivers on the road by targeting certain vehicles in an area where drunk driving is known to occur frequently. They may invent probable cause, such as driving without headlights, for pulling over the car. However, what they are really looking for is a motorist who is under the influence.
A shrewd attorney would have little difficulty showing this operation for what it was: an unauthorized DUI checkpoint. Similarly, it may be possible for a lawyer to prove that the arresting officers at a sobriety checkpoint failed to adhere to a predictable criteria, such as stopping every tenth car. A lawyer may show by the records of the checkpoint that their defendant’s car was not the tenth car or that the officers did not stick to the every tenth car rule throughout the checkpoint. Either point may render the arrest illegal.
Proving the illegality of the checkpoint also may rest with the defendant’s other Constitutional rights. As an example, the police are not permitted to search the vehicle without having probable cause. If the lawyer can prove that there was no probable cause, then the arrest may be thrown out.
Showing that a DUI checkpoint arrest was illegal may require countless hours of research. That is especially true when a sobriety checkpoint appears to adhere to all of the rules. Still, law enforcement does make errors, and it is up to the DUI defense lawyer to uncover these mistakes and omissions. This is critical where drunk driving charges are concerned as the consequences of a conviction can be severe and long term. With so much at stake, hiring a competent DUI attorney is vital.
Anyone who has ever watched a movie or television show where an arrest is made is familiar with Miranda rights. The trouble is that what’s depicted in these fictional circumstances is not the whole story. Read on to learn more about Miranda rights, how they work and how an officer’s failure to Mirandize you may lead to the dismissal of the DUI charges against you.
Ernesto Miranda was arrested by police in Arizona in March 1963. Officers suspected him of kidnapping and rape. Two hours of interrogation at the police station resulted in Miranda’s written confession. However, when the case went to trial, Miranda’s attorney argued that he had not been advised of his rights, including the right to have an attorney present during the interrogation. Miranda was ultimately found guilty by a jury, and the Supreme Court of Arizona later affirmed the decision, stating that because he did not request an attorney, his rights were not violated.
The case eventually made it to the U.S. Supreme Court where the justices were called upon to decide whether or not the right of protection from self-incrimination that is contained in the Fifth Amendment applies to situations in which suspects are being interrogated by police. In a five to four decision, the court found that Fifth Amendment rights are always present regardless of the circumstances. This established the requirement for police to inform suspects of their rights before proceeding with a custodial interrogation.
Typically, people who are arrested by police are read their Miranda rights. These rights include the right to remain silent, the right to have an attorney, the right to have an attorney appointed when the defendant cannot afford one and the right to have questioning cease until an attorney arrives. The defendant also may waive these rights. Critically, the defendant further needs to be aware that anything they say while in police custody may be used against them.
That seems relatively straightforward. However, the reality of the situation is a bit more complicated. Many people who are arrested on suspicion of drunk driving expect to have their rights read to them immediately. If this doesn’t occur, then they believe that the charges against them will automatically be dismissed. This may be the case, but the situation isn’t necessarily as simple as that.
Law enforcement is required to read the Miranda rights to any person who is in police custody before the interrogation begins. The interrogation does not have to happen at the police station. It could happen at the suspect’s home, in a restaurant or on the street. The point is, if the suspect is not free to leave, then their Miranda rights must be read.
Police officers will sometimes delay an arrest while they are questioning a suspect. They may do this to avoid having to read the person their rights. The suspect believes they are obligated to answer police questions, so they start talking, perhaps not realizing that they may be talking themselves into an arrest. That’s because anything they say can be used against them, even if the Miranda rights have not been read to them. The officer is then able to arrest the suspect on the basis of their statements.
The important thing to remember is that you aren’t obligated to answer police questions whether you have been read the Miranda rights or not. It’s best to politely decline to answer any questions, stating that you would like to have an attorney present before being interrogated. You are perfectly within your rights to do so.
What many people fail to understand when it comes to the Miranda rights is that they do not have to be read to you at the time of your arrest. The police are not necessarily acting inappropriately if they arrest you without reminding you of your rights. That’s because two conditions must exist before the police are required to read the Miranda rights. First, you must be in police custody. Second, the officer must be starting an interrogation. In other words, you may be arrested, but not questioned until a later time. The police must remind you of your Miranda rights at the time of the questioning, but may not do so at the moment of your arrest.
The upshot is that the question of Miranda rights can be a complicated one. Only an experienced DUI defense attorney is fully qualified to investigate whether or not you were adequately informed of your rights. This is because it is not always clear whether or not a suspect is in fact being subjected to a “custodial interrogation.” Your attorney may be able to successfully argue that you were being interrogated in custody even when the district attorney says otherwise. In this case, it’s possible that your arrest or certain statements that you made could be put aside.
It is important to note that just because a proper Miranda warning was not issued, it does not necessarily follow that a case will be completely dismissed. This may happen in rare instances, but it is by no means a foregone conclusion. For instance, assume that the police force you to confess to drunk driving after your arrest. If they did not provide the Miranda warning or did not explain it correctly, then your lawyer can argue that you did not waive the right to remain silent. This may make it possible to suppress your confession.
If your confession is the main evidence against you, then your case may be dismissed. However, if the prosecutor also is relying on a breath test and the results of sobriety testing, then the case against you may proceed. The good news is that these results also may be called into question by an experienced DUI attorney.
The consequences for a DUI conviction can be life altering. You may lose your driving privileges, have to pay fines or spend time in jail, depending upon the circumstances. Don’t leave the outcome to chance. Work with a determined lawyer instead.
Many motorists do not have a clear understanding of their legal rights when they are pulled over on suspicion of DUI. They think that if they refuse to cooperate to perform a field sobriety test or a Breathalyzer test that the police will have little evidence with which to move forward a criminal case. In reality, the refusal to submit to such testing may become the grounds for a separate criminal charge. There have actually been cases in which the DUI charges are dropped while the refusal to submit to testing charges are pursued.
Both the driver and the police officer have certain obligations under the law. It is the motorist’s responsibility to submit to testing when it is asked for, and it is the duty of the police officer to inform the suspect of what may happen in the event that the driver refuses to be tested.
Where does this responsibility on the driver to submit to testing for intoxication arise? Whenever someone applies for a state driver’s license, they are “implying consent” to undergo field sobriety testing and chemical testing if they are stopped on suspicion of DUI. Implied consent laws are on the books in all 50 states. Refusal to comply with this law may result in automatic suspension of the driver’s license in addition to other civil and criminal penalties.
The precise penalties that are imposed for the refusal to submit to testing vary from state to state. In some places, drivers are subject to an automatic six months or one-year suspension. If the driver has been convicted of a DUI offense in the past, the suspension period is likely to be longer. Jail time also may be ordered, particularly where prior DUI convictions are present. Many insurance companies will cancel the driver’s policy upon suspension of their license. Moreover, if DUI charges are pursued and the defendant is found guilty, the refusal to comply with testing may result in additional charges and enhanced penalties.
Whether they are sober or under the influence, a driver who is pulled over by police is in a stressful situation. Their mind races, and they may have difficulty focusing. Some people become so nervous that their heart rate increases, and they have trouble breathing. With the emotional and physical upset, it can be extremely taxing to process what the officer is requesting. This may mean that the driver inadvertently refuses to submit to testing because they don’t understand what’s being asked of them or because they don’t understand that they have already implied their consent to testing merely by having a driver’s license.
This is why law enforcement officers have a duty to inform drivers about their rights and about the penalties if they don’t comply with a request for testing. The manner of informing drivers about potential consequences varies from state to state. In some places, police officers are required to read or recite a lengthy paragraph. Under normal circumstances, a person who is calm and sober would have little difficulty understanding what they are being told. However, someone who is in a high-stress situation and may have been drinking earlier may be unable to fully comprehend their rights and the consequences of their refusal to submit to testing.
Failing to comprehend implied consent laws is one defense strategy that a DUI lawyer might use to support their client’s case. Of course, there also are cases in which drivers are not given the implied consent warning at all. This makes it possible for an attorney to argue that their client did not receive a reasonable, comprehensible explanation of their options under the law.
Accordingly, when the implied consent warning is not given, the attorney may be able to maintain that any compromising test results be excluded from trial. Since the results of blood, breath or urine testing often form the main basis of the prosecutor’s case, not being able to use these test results can be crippling.
It’s rare that an implied consent warning is not given at all, but it does happen. More typical is the issuance of the warning and the driver’s failure to fully comprehend it. If you believe that either one of these factors may apply to your DUI arrest, then it is imperative that you contact a criminal defense attorney immediately.
Your lawyer will carefully scrutinize every aspect of the incident that led to your arrest. From where you had been and what you had been doing just before you got pulled over to what happened at the police station, you’ll review the entire episode in the smallest detail. This will enable your attorney to decide which defense strategies may apply to your case.
An experienced DUI defense attorney will be able to tell you whether or not you received sufficient notice of the potential penalties if you refused to submit to chemical or other testing of your blood alcohol level. The prosecution is likely to argue that the defendant signed the paperwork that granted them the ability to legally drive in the state. Accordingly, the driver should have already known that they were legally required to submit to testing of their blood, breath or urine.
However, the reality is that many years may have elapsed since the day when the driver first obtained their license from the state. Most people cannot recall that they made any sort of agreement regarding implied consent on that far-off day, which is why the implied consent notice should be a mandatory part of every traffic stop that includes suspicion of DUI. The unfortunate reality is that some police officers neglect this duty while others don’t ensure that the defendant is in the right frame of mind for comprehending the implied consent notice.
Do not waste time trying to argue with the police. Talk to a qualified DUI defense attorney instead, and don’t answer any questions until you’ve spoken with your lawyer first. They may be able to get the charges against you reduced or dropped.
In an ideal world, the police would only pull over people on suspicion of DUI based on swerving, the inability to stay in a lane or other common signs of impairment. Unfortunately, the world is not ideal. Numerous studies have shown that people of color are far more likely to be pulled over than those who are white.
Racial profiling by police is a source of enormous frustration to people of color in the U.S. Sadly, this deeply embedded racism causes hundreds of people to be wrongfully accused and arrested for DUI every year. The consequences of being convicted are severe. Loss of driving privileges, sizable fines and jail time may be only the beginning. Some people have lost their jobs as a result of drunk driving charges, which puts them at risk for losing their home and being unable to support their family.
Understanding more about what racial profiling is and how it could affect a DUI case may be crucial to defending yourself in court. Of course, anyone who is charged with a DUI should solicit the advice of legal counsel, whether they believe that racial profiling played a role in their arrest or not.
Racial profiling is the practice of singling out a person based upon their race. It is founded on the assumption that a member of a certain race is more likely to be engaged in criminal activity, which in this case would be driving under the influence. Racial profiling by law enforcement members is not a case of a few isolated incidents. In fact, several academic studies have suggested that disproportionately large percentages of black, Hispanic and middle eastern-appearing individuals are stopped, searched and arrested by police when compared with the number of white people who may be detained by law enforcement.
Segments of the population will describe their crime as “driving while black” or “driving while Hispanic.” Some police officers make a deliberate decision to target people based on their race or the color of their skin. For others, it’s a subconscious choice that they may not even be aware of. Either way, it is wholly unfair and a breach of the individual’s basic rights.
Most states have laws that protect people from racial profiling. The practice also violates Constitutional law. The Fourth Amendment provides everyone with freedom from unreasonable search and seizure while the Fourteenth Amendment guarantees equal treatment under the law without regard to race, ethnicity or skin color. Racial profiling violates both of these protections.
For obvious reasons, the police are not allowed to pull over drivers because they are black or clearly belong to another race. Instead, the law requires them to hold a reasonable suspicion of criminal activity, namely, driving under the influence, and to be able to support their position using facts that they can specifically articulate.
Accordingly, an officer would be within their rights to pull over a driver that they see tailgating and making erratic lane changes. They would be abusing their power if they pulled over a driver who had done nothing wrong, but was black and driving in the general vicinity of a bar.
As an example, consider the case of a 64 year-old retired firefighter named Jesse Thornton in Arizona. His wife worked nights as a nurse, so he adopted a nocturnal lifestyle to keep similar hours. This meant that he often ran errands and went to the gym at night. He was on his way home from the gym late one evening when he saw police lights in his rearview mirror. The officer informed him that he could tell Thornton was drunk simply by seeing his red eyes.
Thornton’s workout that night had involved a swim, which had irritated his eyes. He informed the officer of that fact, but he was forced to get out of his car to complete field sobriety testing. With bad knees and a hip that would be replaced in two days’ time, Thornton did not perform well on the tests. He was arrested and taken to police headquarters.
Thornton submitted to a Breathalyzer test that backed up his assertion that he had not been drinking that evening. An expert at recognizing the signs of impairment who was at headquarters that night observed that Thornton showed no signs of impairment. Still, his car was impounded, his license was suspended and his wife had to leave work to retrieve him from the police station.
Eventually, the police department dropped the DUI charges, but Thornton has already filed a lawsuit against the city where the incident occurred and may sue the police department for discrimination as well.
Thornton was fortunate that his Breathalyzer test showed that he had no alcohol in his system. This was likely instrumental in the police dropping the charges against him. Others are not so lucky. In a misguided effort to prove that there was no racial profiling, some police departments and prosecutors will persist in the charges, even if they have little or no evidence to back up their claims.
Racial profiling is a very real phenomena in the U.S. If you are the member of a minority group and were arrested for drunk driving, then your situation may be improved by a demonstration of racial bias on the part of law enforcement.
Proving racial profiling in a court of law is rarely easy. Often, the outcome of a case will rest on a small detail or technicality that most people might not notice. The situation is different for an experience DUI defense lawyer who is trained to look at their client’s circumstances from every possible perspective.
Alleging racial profiling in a DUI case is not always enough to get the charges completely dismissed. Nonetheless, it can be an effective tool for improving your position. That is especially true if other circumstances, such as the results of a Breathalyzer test, can be called into doubt. Working with an experienced DUI attorney may be the key to having your charges reduced or dropped.
Have you ever noticed that you don’t feel drunk or even “buzzed” immediately after you drink a beverage containing alcohol? This is because it takes your body time to absorb and process the alcohol you drink. In fact, your body requires so much time to complete this process, that your blood alcohol content can continue to rise for a few hours after you’ve stopped drinking.
It is these scientific facts that have led many DUI lawyers to develop a rising blood alcohol content defense. This strategy involves showing that although a driver tested as drunk some time after their arrest, they may not actually have been impaired while they were driving.
It may sound too good to be true, but this defense has frequently been successful at getting DUI charges reduced or dropped. This may mean not having to serve jail time and avoiding having a criminal conviction on your record. Even if the outcome is not as positive as that, it may still mean only having to attend counseling or perform community service, either of which is vastly preferable to jail time.
An experienced DUI defense attorney knows precisely how the science behind rising blood alcohol levels works. What’s more, they can obtain expert witness testimony that may be used to further support a claim that a defendant was not drunk at the time of their arrest.
This defense may be possible if you or someone you know has been arrested on suspicion of drunk driving. The best way to tell whether or not you may take advantage of this strategy is by consulting with a qualified DUI defense attorney.
Many people mistakenly believe that they start getting sober, or at least don’t become more drunk, the moment they stop drinking. The reality is that they can continue to feel increasingly drunk for as much as a few hours after their last drink.
This is because alcohol has a long path to take through the drinker’s body. After the drink is consumed, it makes its way to the stomach and small intestines where it is slowly digested and absorbed. As it moves through the intestinal membranes, it enters the drinker’s blood stream. This is the point at which the drinker begins to actually feel the effects of the alcohol he has consumed.
Once the alcohol is in your bloodstream, it will eventually begin to cycle through to your liver. As slow as the stomach and intestines were to digest the drinks, the liver is even slower. Its job is to break down the alcohol and excrete waste products, and several hours are required to complete this process. This physiological phenomena is the secret behind why people may drink at night, but wake up in the morning still feeling a bit drunk. The body is simply that slow when it comes to processing all of the alcohol that was consumed.
This slow absorption and lengthy processing time are why it is not advisable to wait an hour or so after drinking before hitting the road. Leaving immediately after finishing a drink is the better idea, since the alcohol will still be in the early stages of processing and far less likely to cause any kind of impairment.
Various factors may affect how slowly or quickly a particular individual processes the alcohol that they consume. One of the most common that has an impact on DUI charges is the consumption of food. Specifically, if you eat a meal before you have a drink, then your body will process the alcohol far more slowly. This is because it is already hard at work digesting the food you consumed. The alcohol simply has to wait its turn. Accordingly, this could be the perfect set up for a rising blood alcohol level defense.
Another factor that may have an impact on alcohol absorption is the gender of the individual. Women are prone to reaching higher BACs in shorter time periods than men are. This is mainly based on the fact that women tend to carry less body fluid than men. Because the alcohol is more diluted in the man’s system, his BAC may not register as high as the woman’s.
So, why would a rising blood alcohol level be a useful defense in a DUI case? It’s because most blood or urine tests to determine blood alcohol levels are conducted an hour or more after the arrest of a driver. In other words, a person who had a drink or two and then got in the car to drive home may not have been drunk, or at least not as drunk, as they were when the BAC test was administered.
It requires particular skill and expertise to mount a rising blood alcohol level defense in court. Fortunately, a DUI defense attorney who has used this strategy before knows precisely the steps that need to be taken and the evidence that needs to be gathered.
This frequently begins with bringing in a toxicology expert who can potentially prove that a defendant’s blood alcohol level was actually below the legal limit when field sobriety tests were given. Additionally, it is helpful for the defendant to be able to produce proof of what they ate and drank before the arrest. Receipts and the testimony of eye witnesses may both prove to be valuable. If someone can testify that the defendant did not appear to be driving impaired, this also may prove valuable to the defense.
The first step toward using a rising blood alcohol level defense is consulting with a qualified DUI attorney. These well-trained professionals know all of the questions to ask and what evidence to gather. With their assistance, the charges against you may be reduced or even dropped entirely.
The consequences for a drunk driving conviction are severe and potentially life changing. It is in your best interests to look for legal counsel that is willing to explore various defenses in the hope of gaining a favorable outcome. A rising blood alcohol level defense may be a successful approach.