Attacking a DUI
There are multiple steps to attacking a drunk driving (DUI) charge. The steps can be divided into multiple categories: the constitutional attack, the legal attack, and the factual attack.
The Constitutional Attack
- The Stop of the Motor Vehicle The first step in the defense of a drunk driving charge is to evaluate the constitutionality of the police officer’s actions. Was the police officer’s stop of the motor vehicle constitutional? The police officer must have a constitutionally permissible basis to stop your motor vehicle. The officer cannot stop your vehicle based upon mere suspicion. The primary method officers use to overcome this initial hurdle is to stop the motorist for a traffic violation such as speeding, improper signaling, weaving, etc. As your attorney, I will collect the evidence through the discovery process and search for an attack angle. For instance, I had a client who was accused of drunk driving and the basis of the stop was for running a stop sign. The cruiser video demonstrated that my client came to a complete stop and there were no other traffic infractions. The evidence against my client was suppressed, thereby avoiding the DUI conviction. Another example involved an allegation of speeding in a 25 mph zone, but my investigation proved that the road was actually a 35 mph zone, and my client was driving under the posted speed limit. My client chose not to have the suppression hearing but accepted an amendment from DUI to Reckless Driving and he did not lose his license.
- Probable cause to conduct field sobriety tests The next common place to evaluate constitutionality involves the officer’s determination to conduct field sobriety tests. The police officer must have probable cause to request the performance of field sobriety tests. Police officers initial observations after approaching the vehicle are the primary basis to satisfy this constitutional requirement. The officer will attempt to have you admit that you or others have been drinking. They will listen for slurred speech, look for blood shot eyes, and/or smell the odor of alcohol. It is the defense attorney’s job to ensure that there are sufficient facts present to satisfy this probable cause requirement. If there are insufficient facts for probable cause, then a suppression motion may be appropriate for the case.
The Legal Attack
One primary example of a legal attack involves the time limit requirements in relation to the collection of the breath or blood sample. The authorities are required to collect the sample within two hours of the operation of the motor vehicle pursuant to law and regulation. There also has to be a twenty-minute observation period prior to the breath test. These are two of the most common requirements when the prosecution is seeking a conviction under the “per se” or .08 rule. These requirements must be satisfied. If they are not, then the sample can be suppressed. If the sample is suppressed, the prosecutor can still seek a DUI conviction with the circumstantial case of intoxication relying upon the failure of field sobriety tests and other observations. For a detailed discussion in relation to further attacking the field sobriety tests, read The Complete DUI Refusal and DUI Refusal Consequences.
The Factual Attack
It is impossible to list all possible factual attacks because the factual attack is based upon the individual facts of the case. If, for instance, the client refuses the breath and/or blood sample, or the sample has been suppressed, then the case can become a debate about performance of the field sobriety tests. The grading of field sobriety tests is very strict. The accused drunk driver offender, for instance, can be accused of failing the backwards count because they did not stop on the correct number. That “failure” can be debated. If that was the only “failure” that means the accused offender started on the correct number, did not hesitate, and stated all of the numbers in correct order, all while going backwards. That sounds sober to me, and it can sound that way to a jury. Each failed field sobriety test can be debated in a similar fashion. Sometimes the cruiser video, if it exists, can be used to prove an absence of intoxication.
The above is a small sample of the multiple strategies that will be utilized to attack a drunk driving charge. If you have been charged with drunk driving in Kenton County, Boone County, or Campbell County, contact me at 859-431-9999 for a free initial consultation. I can help you.