Legal Defenses During a DUI Trial

Topics on This Page

• Subjective DUI Evidence
• Questionable BAC Test Results
• Faulty Testing Equipment
• Emergency Driving Scenarios
• Appealing a DUI Conviction
• Keeping Your Record Clean

DUI and DWI Guide Topics

• DUI Guide Introduction
• Your Rights During a DUI Stop
• Field Sobriety and BAC Tests
• DUI Arrest, Booking and Bail
• When to Hire a DUI Lawyer
• Consequences of a DUI Conviction
• DUI, the DMV and Your License
• Underage DUI and Zero Tolerance Laws

Mandatory jail time, heavy fines, and an automatic suspension of your driving license are some of the possible consequences for a DUI conviction, even for a first offense with a blood alcohol concentration of .08% or higher. The consequences for Aggravated DUI or Extreme DUI are more severe.

Some Common Defenses to consider in a DUI case are:

• No Probable Cause to Arrest
• Insufficient Evidence of Driving or Actual Physical Control
• Denial of Right to Counsel
• Denial of Right to an Independent Test
• B.A.C. Testing Deficiencies
• Faulty Field Sobriety Testing
• Unlawful Traffic Stop

A DUI arrest does not guarantee a conviction. Many mistakenly believe if they are arrested and there is a test with a B.A.C. over .08% that there is no defense to avoid conviction or severe punishment. You have rights when charged with DUI charges and you need an experienced DUI attorney to aggressively protect those rights. If you plead guilty, you will be convicted in Tempe. Once you plead guilty, you lose your right to raise most of the defenses to the charges.

Subjective Police Observations and Field Tests

Probable cause is often based on subjective evidence provided by the police officer. Given the subjective nature of the field sobriety tests, there are many defenses which can be used to challenge the officer's observations. People have medical conditions which can result in bloodshot eyes, slurred speech or bad coordination and if the police do not take any of those conditions into consideration, there may not be a foundation for probable cause. Without that foundation, the BAC test results cannot be admitted into evidence.

Faulty Chemical BAC Test Results

Due to the fact that quite a few medicines can alter the blood alcohol test results, people who are undergoing an alcohol blood test need to inform the person administrating the test about all the prescription and nonprescription medications they are taking.

In addition, if a person is currently taking a blood-thinning medicine or has clotting or bleeding problems, he or she needs to inform the individual administering the blood alcohol test before the blood alcohol testing procedure is started.

While seemingly more objective, chemical tests are also wrought with unreliable results. Blood and urine tests are invasive and are not reliable to a specific point in time. Both measure alcohol in the body's system, but it can be a measure of alcohol from hours or days before the driver was actually behind the wheel. Many things can affect the blood alcohol concentration that are not linked to actually consuming alcohol.

Faulty DUI Testing Equipment

The equipment used for breath tests has been under intense scrutiny for years and an experienced DUI attorney can help you determine if the equipment used in your case is one of the models which provides faulty readings. There are also many factors which can lead to a false reading of a chemical test including over-the counter medication, certain types of food, and some medical conditions. Some of the factors which can cause a false BAC for a breath test are as follows:

• Cell phones, police radios, electrical interference, moisture, dirt, and tobacco smoke.
• Substances or compounds found in gasoline, paint removers, cleaning fluids, celluloid, and lacquers.
• Blood, vomit, or alcohol present in the person's mouth.
• A person's breathing rate caused by vigorous exercise, hyperventilation, or a person holding one's breath.
• Law enforcement personnel fail to use the breathalyzers properly or fail to properly maintain and re-calibrate the units when necessary.
• Mouthwash and cough syrup
• Belching or hiccups

Justifying Drinking and Driving

There are arguments which can be made to justify the drinking and driving, although they are difficult arguments to win in court. It is possible to argue that the driving was necessary. If, for example, you did not intend to drive and you were drinking, but something happened which required you to drive, you could argue the driving was a necessity. If you are in imminent danger and must drive to escape the danger, that may be a justifiable excuse for driving while under the influence of alcohol. Of course you will have to prove the imminent danger or the necessity of the driving. If a friend needs immediate medical attention and you cannot call 911, that might justify the driving.

If you were drinking punch and did not know that there was any alcohol in it, you could argue the impairment was due to a mistake of fact. Again, you would need proof of the mistake. You can have witnesses submit affidavits confirming your situation. If your impairment is due to medication you are taking and there was no warning given against driving, you can argue that you were unaware of the detrimental effects of the medication.

If Convicted for DUI, Can You Appeal?

If your DUI case went to trial, either with a judge or a jury, you can appeal the final decision. If you entered a plea bargain, you waived your right to an appeal. You will need a reason for the appeal, other than the fact that you do not like the decision that was made. You will have to prove that the court made a mistake somehow, either in applying the facts or in applying the law to your case. Appeals are complicated and very hard to win. It is best to hire an attorney who is familiar with the appellate process to represent you. State laws vary on the time in which you can appeal, but you should act quickly because most states require a notice of appeal to be filed within 10 to 30 days from the date of the court's order.

Can You Expunge a DUI Conviction From Your Record?

Some states will allow a DUI conviction to be expunged if the driver completes an alcohol rehabilitation program or a driving education program. Some states will not expunge DUI convictions and some will consider only expunging a first offense. Contact a DUI attorney or your local department of motor vehicles to find out what your options are for expungement in your state.