Many people believe that if they are charged with a DWI / DUI then a conviction is soon to follow. This is simply not the case. There are numerous ways to attack an allegation of drunk driving. The police and prosecution will use all legal weapons at their disposal to convict you. You need an attorney who will aggressively fight back in your defense.
The following is a list of some of the methods DWI / DUI attorney Kevin Leckerman routinely uses to defend his clients when charged with DWI / DUI.
Illegal Stop: In order to stop a motor vehicle, law enforcement must have reasonable suspicion that a crime has occurred or that a motor vehicle offense has been committed. If law enforcement did not have legal justification to stop your vehicle, then all evidence that was obtained following the illegal motor vehicle stop may be inadmissible.
Standardized Field Sobriety Tests: There are only three “standardized” field sobriety tests – one-leg stand, walk-and-turn, and horizontal gaze nystagmus (an eye test referred to as HGN). The results of these tests are used by law enforcement as supposed evidence of intoxication. Nonetheless, they are not reliable methods to determine intoxication. In New Jersey and Pennsylvania, the courts have determined that the results of the HGN test cannot even be used against a person. Furthermore, government sponsored studies claim that, when administered properly, the one-leg stand test is only 65% accurate in predicting someone to be over the legal limit. The walk-and-turn test is only 68% accurate. Moreover, there are factors that further compromise the validity of these tests. Certain medical conditions and physical injuries will render these tests invalid. If a person is 50 pounds overweight or is 65 years or older, then the results of these tests are invalid.
Other field sobriety tests, such as the alphabet recitation test, finger-to-nose test, and sway test, have no known measure of validity for determining intoxication.
Weather: Bad weather conditions can be used to explain certain driving behavior and physical balance problems.
Incomplete Production of Evidence: By law, the prosecution must provide all evidence in its possession. Otherwise, a motion to compel evidence can be filed in order to force the prosecution to provide evidence that it is withholding. If the prosecution still fails to produce missing evidence once it is ordered to do so, then the entire case may be dismissed.
Video Tapes: In many cases, a videotaped recording of the roadside investigation and/or what occurred at the police station was made. Copies of these video recordings must be provided to defense counsel. Often, the recordings will show that police reports are inaccurate. Among other things, these video recordings can be used to show that a person did not have problems operating a vehicle, did not have balance problems, was not incoherent, and did not slur speech.
Failure to Read Implied Consent Warnings: All persons arrested must be advised of the obligation to provide breath samples and the penalties that will be imposed if a person refuses to provide those samples. If the proper implied consent warnings are not read in its entirety, then charges may be dismissed.
Invalid Breath Test Operator Certification: An operator of a breath testing device must have been properly trained and certified before administering breath tests. Breath test results are not admissible if a breath test operator does not have a valid certification.
Twenty-Minute Period of Observation: Prior to taking breath samples, law enforcement must watch the person giving the samples in order to ensure that those samples are not tainted by mouth alcohol. A failure to observe for twenty minutes may result in the breath samples being inadmissible.
Expired Documents For Breath Testing Machine: Each breath testing machine must be inspected on a periodic basis. Following this inspection, documents are produced showing that the machine was in proper working order. Breath testing results may be dismissed if those documents are not provided by the prosecution or if the inspection was not done in a specified time period.
Proper Operation of the Breath Testing Machine: A breath test operator must follow certain procedures when using a breath testing machine. Otherwise, the results of the testing may be compromised and not admissible as evidence.
Interfering Substances: Various chemicals may cause false breath test results if you have been exposed to them under certain conditions. Moreover, medical conditions, such as gastroesophageal reflux disease, may also cause breath testing results to be unreliable.
Blood and Urine Collection: When blood and/or urine samples are taken for testing, proper procedures must be followed to ensure that contamination of those samples did not occur. Contamination may cause the testing results to be falsely elevated.
Blood and Urine Testing: To ensure the reliability of testing results, the prosecution must show who had custody of the sample up to the time of testing. Additionally, the prosecution must produce scientific materials that can be examined by a defense expert. These materials may reveal improprieties in the testing procedures.
Drug Recognition Evaluations: When drug use is suspected, sometimes a specially trained police officer is called to make an assessment of the arrested individual. This assessment is to determine which drug(s) an individual may be under the influence. However, these officers utilize methods of drug detection that are not deemed as scientifically reliable and should be thoroughly challenged.
Medical Conditions: Certain medical conditions, such as diabetes, can cause an individual to exhibit behaviors that are consistent with intoxication. Often law enforcement is untrained to differentiate between intoxication and diabetic shock. A diabetic attack may also cause the body to create chemicals that a breath testing machine may misidentify as alcohol. Medical records and expert testimony can be used to show that a person was not intoxicated but suffering from a medical condition.
Prescription Sleeping Pills: Studies show that certain sleeping pills disrupt normal sleep cycles, causing some people to act out in their sleep. At times, people taking these pills have driven automobiles while totally unaware of their actions. The prosecution of someone who has been “sleep driving” while under the influence of a narcotic may be effectively challenged.
Police Officer Investigation Reports: Typically, law enforcement will write reports detailing the important events of an investigation. These reports are provided during the discovery process to defense counsel. Discrepancies in those reports may lead to the prosecutor dismissing charges and will certainly be used against the officer, if the matter proceeds to trial.