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50+ Ways To Beat Your DUI

Here are ways that we might be able to defend you against a DUI charge. With the length of the list, you can get a sense of the lengths that I will go to defend you. With more than 38 years of practice exclusively in criminal law, I know how to develop a sound defense strategy.

  1. Reason for the stop — An officer must have reasonable suspicion of a criminal or traffic offense to stop your vehicle. That suspicion must be one that the officer can articulate to the court. If the officer does not have an articulable reasonable suspicion, the DUI charge could be dismissed.
  2. Probable cause for arrest — When you are stopped, the officer must have reasonable suspicion of a criminal or traffic offense, but to arrest you, the officer must have probable cause. That is, considering all the circumstances available to him or her, it must be more likely than not that you are committing a crime. Without probable cause, the arrest is improper.
  3. Turn signal — If there is no other traffic around and you failed to use a turn signal, the argument can be made that failure to use the signal is not a basis for a stop as the turn signal is intended to notify other drivers of your intention to move on the road. If there are no other drivers to be notified, the failure to use a signal would not be reasonable suspicion for a stop.
  4. Bloodshot eyes — One difficulty police officers always have in a DUI is that they do not know you and therefore don't know what your "normal" appearance might be. When they describe bloodshot eyes, the police want to attribute that to alcohol, but it could be from factors such as your work environment, cigarette smoke, illness or lack of sleep.
  5. Slurred speech — Without knowing your normal speech pattern, it is impossible for an officer to say your speech was slurred or different in any way because of the intake of alcohol.
  6. Location — If field sobriety tests were conducted on uneven ground or ground covered in rocks, gravel or slippery sand, near passing vehicles, or in a place where the ground is not level, results may not be reliable.
  7. 20-minute observation period — In South Carolina, the officer is required to observe you for 20 minutes in the Breathalyzer room prior to offering you the test to be certain you do not put anything in your mouth, vomit, burp or have any other problems that might affect the testing. If the officer ignored any of those things during those 20 minutes, the test may not be valid. If the officer did not pay complete attention to you during that 20-minute period, the test may not be valid.
  8. Fatigue — Along with texting, fatigue is the most common factor in distracted or problem driving. If you have been up for an extended time or just had one of those days, it may be a factor the jury will consider in your favor.
  9. Texting — See fatigue above.
  10. No evidence of mental impairment — If you had no difficulty answering the officer's questions, asking your own questions or understanding either your Miranda or Breathalyzer rights, the officer may have trouble convincing the jury that you were so impaired you could not safely operate a motor vehicle. In most people, mental impairment and physical impairment go hand in hand.
  11. Reasons provided to the officer for difficulties — You may have explained to the officer the reason for the difficulty he or she observed in your driving and that explanation may have been reasonable and not had any connection with alcohol. Most errors on the road are not alcohol-related.
  12. Anonymous caller — If the officer stopped you simply because someone called in your car or license plate, that is not sufficient grounds for a stop. The officer must independently observe some activity to verify the anonymous report.
  13. Driving the vehicle — The officer must be able to prove beyond a reasonable doubt that you were driving the motor vehicle. That may become an issue when there is a delay between an accident and the officer's arrival on scene.
  14. Legal right to search the vehicle — If you are under arrest, the officer has the authority to search the vehicle, but if any search was conducted prior to that without your consent, it may have been improper.
  15. Speeding — Speeding is not generally considered by a jury to be indicative of drunk driving. If it was, everyone at this moment driving on Interstate 85 is drunk, including the highway patrol officers.
  16. Improper testing — The National Highway Traffic Safety Administration (NHTSA) has both age and weight limitations in the use of field sobriety tests (FST). Obviously, if you are physically injured or limited in any way, the use of field sobriety tests may be improper.
  17. Invalid FST — The NHTSA has approved only three field sobriety tests as appropriate: the horizontal gaze nystagmus, the one-legged stand, and the walk and turn. They are all to be provided as any decision is to be made upon the battery of tests. Other tests that may have been used such as counting or the alphabet do not have NHTSA approval nor any scientific support to indicate driving impairment.
  18. FST not administered correctly — The NHTSA sets out specific guidelines for the performance of field sobriety tests that have to be followed specifically for the tests to have any validity or use in court.
  19. Improper evaluation of FST — The officer will be looking for any slight error or hold it against you that you do not exactly follow hastily given instructions for a test you have never performed in a situation you have never likely found yourself in. The officer's evaluation of your performance is commonly more severe than anyone reasonably looking at the tests would conclude.
  20. Malfunction of breath test machine — South Carolina Law Enforcement Division (SLED) records are available to show the maintenance of breath test machines in South Carolina. Records are also available from SLED indicating whether the machine has malfunctioned previously or since and how close to your tests.
  21. Proper procedure for breath test machine — The operator must follow guidelines and procedures set out by SLED while conducting the test. If these are not precisely followed, the results may not be admissible in court.
  22. Blow hard — Officers have traditionally advised the accused to "blow hard" or "try again" if an incomplete sample was provided from the first breath. Whether that is appropriate in South Carolina is an open question. The Supreme Court has not yet ruled on it, but it certainly appears that those instructions are improper.
  23. Acid reflux — Anyone who suffers from symptoms of heartburn or reflux might have an abnormally high test result as the heartburn or reflux may have caused the alcohol to return to the mouth during the waiting period without the officer being aware.
  24. Correct procedure for blood draw — If your blood is drawn at the hospital, the nurse must follow a specific procedure for drawing the blood, marking the container and beginning the chain of custody.
  25. Chain of custody — If blood was drawn, the state must show a complete chain of custody to the satisfaction of the court or any results from the blood draw are not admissible.
  26. Discovery errors or omissions — The state has to provide the videotapes and any written discovery available pursuant to Rule 5. If it fails to do so, that evidence may not be admissible.
  27. Medical problems — Some medical problems could affect the results of the field sobriety tests; others could affect the level of the Breathalyzer. The same is true of medications and we will need to investigate with you any medical issues.
  28. Defense fact witnesses — You should have in court everyone who saw you that night who can testify as to what your condition was, what you were doing and what, if anything, you were drinking. If the jury members believe your witnesses and their ability to observe you as opposed to some machine they never saw, you may be acquitted.
  29. Defense character witnesses — The rules in South Carolina allow character witnesses. They are people who did not see you on the day or night you were accused, but know you and can testify to your character for truthfulness or your character for sobriety.
  30. Use of experts by defense — Experts such as doctors and toxicologists may be able to challenge the accuracy of the breath test or your ability to perform the field sobriety tests.
  31. Poor weather — If the conditions where the field sobriety tests were performed were bad because of rain or other weather, that could obviously impact your ability to do the tests. Weather reports are available from the National Weather Service over the web.
  32. Miranda rights — In South Carolina, Miranda rights have to be provided to you in a particular time pursuant to the statute. If they are not, the case could be dismissed.
  33. Car/road videos — The officer's camera is hardwired to come on when the car's flashing lights come on and so there should be a videotape of your stop and everything that occurred after that stop up until your arrest. Failure of the officer to have such a tape does not make it impossible to prosecute you if there is an exception available under the law. Those exceptions, however, are rare and generally no video equals no prosecution.
  34. Weaving in your lane — Weaving in your own lane is not a violation of the law in South Carolina and it is questionable whether it can be used as grounds for a stop.
  35. Affirmative assistance/independent tests — If you take the Breathalyzer, the officer must provide you an opportunity to have an independent test of your blood done at the hospital. If you request and the officer refuses or fails to do so, that could be grounds for dismissal.
  36. Attorney — You have the right if you request to talk to a lawyer and to have a phone and a phone book made available to you during the waiting period so that you may attempt to contact an attorney. You may not extend the waiting period trying to find an attorney, but if you can speak with one in that 20 minutes, the officer must give you the opportunity.
  37. False teeth — If you have dentures or bridge work in your mouth, the alcohol could be trapped by them and influence the blood alcohol concentration (BAC) result. If the dentures are removable and were not removed, the test likely is flawed. The officer should check your mouth prior to the 20-minute observation period and ask if you have any removable material in your mouth.
  38. Blood–breath partition ratio — The machine calculates BAC levels based on an assumption that the blood-breath partition ratio is 2,100 to 1. That basic assumption has been questioned and is only an average and not specific to each individual taking the test and may cast enough doubt on the BAC to sway with the jury.
  39. Smell of alcohol — It is not illegal to drink and drive in South Carolina so if you smell like alcohol, that would not be proof that you were guilty of DUI. Alcohol has no smell and so what the officer claims to be the smell of alcohol is actually the smell of whatever is added to the alcohol as mixers or flavorings.
  40. Misleading statements by officer — If the officer noted in the report or testifies to something that is not accurate as evidenced by the videotapes, the officer's inaccurate misleading statements can be used against him or her in front of the jury.
  41. Roadblock — While roadblocks are legal, there are many rules applicable to them. Unless it is performed precisely according to the procedure set out by the courts, a roadblock stop would be improper and any evidence gathered after that illegal so the DUI might be dismissed.
  42. Random stop — If the officer stops you randomly because you were leaving a particular place or you are in "a high crime area," that stop is likely improper.
  43. Accidental intoxication — In South Carolina, involuntary intoxication (becoming intoxicated without intending to) is a defense. The intoxication necessary for a DUI conviction must be intentional or knowing.
  44. Within jurisdiction — The officer must be operating within his or her jurisdiction whether it is city or a county. If the stop occurred outside the officer's jurisdiction, it may be improper.
  45. Favorable evidence destroyed — The state is obligated to maintain all the evidence in a case until it is presented to the court, including evidence that may be favorable to the defendant. The state, in fact, must make the defendant aware if there is favorable evidence. If that evidence has been destroyed without just cause, the inability of the defense to be able to show that evidence to a jury may be grounds for dismissal.
  46. Impaired vision/nystagmus — One field sobriety test is intended to determine whether you have a nystagmus, which is an involuntary twitching of the eye. If you do, the officer will want to attribute that to alcohol. There are, however, many reasons for a nystagmus and often an eye exam is warranted so we can determine whether you have a natural nystagmus as many people do.
  47. Handwriting specimens — Many of the documents that will be used in court will have been signed by you. Often it is helpful to the jury to compare those signatures with those on other documents such as your driver's license to show that your physical ability to write was not in any way affected by alcohol.
  48. Normal tests — One issue commonly raised by the defense is that on normal tests — that is, exiting the vehicle, being able to stand without assistance, not swaying and walking as you normally do as opposed to heel to toe — were not difficult for you and that on normal tests, you had normal results.
  49. Gender — Women absorb and metabolize alcohol differently than men and since the machine is not ever set for the individual on it, but for an average male, the Breathalyzer routinely provides higher BAC levels for women.
  50. FSTs administered correctly — Even when administered correctly according to NHTSA procedure, the one leg stand test is only 65 percent accurate and the walk and turn test is only 68 percent accurate in determining if a person is under the influence.
  51. The law — Even if you have been drinking and driving, the law in South Carolina makes it a violation only if you have had so much alcohol that your faculties to drive are appreciably — that is, significantly — impaired. The law does not say that simply drinking an alcoholic beverage and then driving is sufficient to be convicted.
  52. Right to remain silent — Do not do the field sobriety tests as they are voluntary. Offer to do any normal tests the officer wants, such as walk a line but not heel to toe, or stand without weaving or swaying, but not on one leg. Do not discuss with the officer how much you had to drink or where you were earlier. Do not "rate yourself" as very often officers say, "If one is buzzed and 10 is drunk, what are you?" and refuse to take the Breathalyzer. The right to remain silent is a powerful weapon available to you; you should use it.