Many people, including some lawyers, believe that if you are arrested for driving under the influence, and fail a breath or blood test, you do not have a chance to win. To be clear, driving under the influence cases are difficult to win. Successfully defending a driving under the influence case requires careful and thorough investigation of all of the facts, and not just the facts that the arresting officer has recorded in his or her police report. In driving under the influence cases, the police report consists of fill-in-the-blank forms and a narrative. In almost all police reports, the arresting officer focuses on a few facts which are slanted to demonstrate that the motorist was allegedly impaired. The arresting officer ignores other pertinent facts which could call into question whether or not the motorist was, in fact, actually impaired. For example, the police report may state that you put your foot down during the one-leg stand test, but the report will fail to mention that you put your foot down at the request of the arresting officer, as depicted in the in-squad video.
A good lawyer does not merely read, and accept at face value, the content of a police report when analyzing a driving under the influence case. A good lawyer thoroughly investigates the case, obtains additional information and records not contained in the police report, and “thinks out of the box” in establishing a viable defense.
Factor One: Did the Arresting Officer Follow The Rules?
Whether or not you are actually guilty of driving under the influence may be one of the least important factors in your case. The rule of law protects the most important of our civil liberties: the right to be free from unreasonable stops, seizure, searches and arrest. The police must follow strict rules that prevent them from stopping and arresting citizens without articulable suspicion or probable cause. In many instances, the police act on a mere hunch or suspicion, without articulable suspicion or probable cause. Any evidence that police obtain as a result of their unlawful behavior may not be used against you in Court, even if the evidence clearly proves that you are guilty.
Do not assume that because the arresting officer pulled you over or approached you, you committed a traffic violation which justified the stop. A good lawyer will carefully analyze all of the facts regarding the arresting officer’s decision to stop, question, administer Standardized Field Sobriety Tests (SFST’s), and arrest you. A good lawyer will take any opportunity to challenge the basis of the arresting officer’s decision to pull you over, administer Standardized Field Sobriety Tests, arrest you and subject you to either a breath, blood or urine test.
Do not assume that because you failed the Standardized Field Sobriety Tests, the arresting officer and prosecutor have sufficient evidence to prove you guilty. Many police officers do not administer the Standardized Field Sobriety Tests correctly. The federal government, through the National Highway Traffic Safety Administration (NHTSA), has established a set of driving under the influence investigation procedures with which the arresting officer must comply. Police officers must attend a three-day course, which includes proficiency testing. A good DUI defense lawyer will be familiar with, or trained in administering, the SFST’s. A good DUI defense lawyer will be able to challenge and pick apart the manner in which the arresting officer administered the SFST’s.
Do not assume that because your chemical test indicated that you were impaired, the test result will be entered into evidence against you. It is possible to suppress the chemical test results.
Factor Two: The Story of Your Day
Whether or not you were impaired depends on whether or not you consumed an excessive amount of alcohol or ingested drugs. The story and details of your day are very important. In which bar, restaurant or friend’s home did you drink? What time did you arrive? What time did you start drinking? What did you drink? How many? What time did you stop drinking? Did you eat any food? Did you ingest any prescription drugs? What time did you leave? Were any of your friends or family with you at the party? Where did you go afterwards? Were you alone? If your eyes were allegedly “bloodshot and glassy”, how long did you work that day? Under what kind of conditions did you work? Did you come into contact with any chemicals or solvents? If so, what? If you allegedly performed poorly on the Standardized Field Sobriety Tests, were you suffering from an injury? If so, what was the nature of that injury? This information is important as it may determine whether or not you were intoxicated and whether or not there were witnesses to support your story.
Witnesses may be able to testify that at no time did you appear to be intoxicated. Witnesses may be able to corroborate your minimal or moderate alcohol consumption, food intake and sobriety. The prosecutor will do his or her best to portray you as an irresponsible drunk. Witnesses can “humanize” you. The people with whom you socialized on the date of your incident, including the bartender, can be important witnesses.
Chemical tests of breath and blood, as well as a police officer’s claim of “strong smell of an alcoholic beverage on breath”, can be flawed and unreliable. It is important, if possible, to identify and locate any credible witnesses to corroborate your actual alcohol consumption. This may be possible using charge card records, as well.
Factor Three: Your Driving
Why did the arresting officer stop you? What was it about your driving that drew the attention of the arresting officer? Did your car have a burnt out license plate light? Were you speeding, three miles per hour over the posted speed limit? Were you swerving? Did you momentarily cross the center line? Did you momentarily cross the fog line? Were you involved in an accident? Did you pull over promptly, safely and in a controlled manner when the arresting officer activated the squad car lights and siren?
The arresting officer will usually try to report, in detail, the driving violation(s) which supported his or her reason to stop you. Improper Lane Usage is the most common traffic violation police officers cite for stopping a motorist. The prosecutor will argue that these traffic violations are evidence of impaired judgment and poor coordination associated with impairment. That is often, of course, not the case.
Police officers following motorists late at night, especially after the motorist has left the parking lot of a “local watering hole”, will often stop motorists for slight or invalid reasons. Police officers often stop a vehicle on some pretext, which has nothing to do with impaired driving.
In some instances, driving may appear to be “erratic”, when, in fact, it is not. For example, police officers will stop motorists for “weaving within the lane.” So what! As long as you drive within your lane, you are not weaving!
Many times, people are arrested for driving under the influence when the initial stop was due to some factor unrelated to alcohol consumption or drug ingestion.
Factor Four: Your Actions/Performance, Appearance and Behavior
The arresting officer’s observation of you–from the moment you are stopped to the moment you leave the police station–is crucial.
Police officers are trained to observe. Yet, in most driving under the influence cases, the arresting officer’s observations are limited to negatively describing your driving, performance on the Standardized Field Sobriety Tests (SFST’s), appearance and behavior. To properly evaluate your driving under the influence case, all of your actions, appearance and behavior should be considered.
Were you able to find and provide the arresting officer your driver’s license without fumbling or dropping the license? Did you provide the arresting officer the correct documents? Did you understand the arresting officer’s questions and directions? Were you able to exit your car without difficulty? Did you communicate your name? Did you ask the arresting officer to repeat his or her questions? Did you walk to the area where the field sobriety tests were performed without difficulty? What were the weather and lighting conditions? Was the pavement surface smooth, or uneven and/or cracked? Were you able to enter and exit the squad car without difficulty? Did you walk into the police station without stumbling?
Did you cry? Were you verbally aggressive toward the officer? Did you become emotional? Were you respectful toward the officer? Were you cooperative? Were you calm and level-headed?
Common and standard observations that are related by law enforcement, in virtually all driving under the influence arrests, are: “bloodshot and glassy eyes, slurred and/or mumbled speech, and strong odor of an alcoholic beverage on the subject’s breath.” A skilled lawyer understands how to show a jury that these observations are often fabricated, exaggerated, inconclusive and taken out of context. For example, bloodshot eyes may be attributed to eye irritation caused by prolonged contact lens wear, cigarette fumes, irritating vapors or fumes, sleep deprivation/fatigue, or may be the person’s normal appearance. The police usually have no prior experience with a subject and his/her voice; the person’s normal speech may sound slurred because he or she resides in Alabama or Virginia, or the person has been afflicted with a medical problem which precludes clear speech, such as a stroke. Similarly, the odor of an alcoholic beverage may indicate that a person recently consumed alcohol, but cannot indicate the type or amount of alcohol consumed.
Finally, the Standardized Field Sobriety Tests are unfair. The tests are not intended for people to pass. Many sober people cannot successfully perform the Standardized Field Sobriety Tests. Rather, the tests are intended for you to fail. Once a police officer asks you to exit your car to perform the Standardized Field Sobriety Tests, the officer has already made the decision to arrest and charge you with the offense of driving under the influence; the tests are simply intended to provide the police officer with objective information to substantiate the arrest. The irony in all of this is that many trained police officers, when asked to demonstrate the tests in front of a jury, will fail. Jurors who attempt to perform these tests during deliberations will often fail.
The National Highway Traffic Safety Administration (NHTSA) has established three recognized Standardized Field Sobriety Tests: Horizontal Gaze Nystagmus (HGN), Walk-and-Turn/Touch-Heel-to-Toe, and One-Leg-Stand. There are other, less common tests, such as finger-to-nose and alphabet tests. The National Highway Traffic Safety Administration publishes various manuals regarding how these tests should be administered, performed and evaluated. Nevertheless, it is common for police officers to depart from proper test procedures or to grade on irrelevant factors. These tests are usually performed under the worst of conditions: in poor lighting, on uneven or cracked pavement, in inclement weather, near passing traffic, near oscillating lights, etc. A police officer may even arrest a motorist for failing a single field sobriety test, after having passed a series of previous tests. A skilled lawyer will be able to point out the unfairness of the police officer’s administration of the field sobriety tests, and direct the jury’s attention to all of the Defendant’s behavior and motor skills consistent with sobriety.
It is important, and necessary, to describe to the jury the entire picture regarding your actions, appearance and behavior. The jury cannot rely only on the police officer’s observations, which are often biased, exaggerated, and taken out of context, and always intended to obtain a guilty verdict.
Factor Five: The Breathalyzer Test
There are three main types of breath test machines in operation in the United States:
The Intoxilyzer and
The most famous of the three, the Breathalyzer, is largely obsolete. Most police departments in Illinois use the Intoximeter EC/IR II.
Breath testers are subject to error if not properly operated. One error is mouth alcohol contamination. The EC/IR II is designed to test the subject’s deep lung air. However, before the subject’s deep lung air can be tested, it must pass through the subject’s throat and mouth. If the subject burped before the test, which can be a silent process (micro burps), the subject’s mouth may contain relatively undiluted alcohol from the subject’s stomach. The breath sample will be contaminated and the breath tester will provide an elevated, and false, reading. The EC/IR II is also designed to detect mouth alcohol contamination, but the detection technology is fallible.
Police breath test operators are required to conduct a twenty-minute observation period of the subject immediately before the test to verify that the subject did not smoke, drink, vomit, belch, etc. prior to the test. These observations periods are often lax.
A skilled attorney can demonstrate that the police officer failed to conduct a proper observation period by eliciting testimony from the police officer regarding the exact timing of the completion of his or her various tasks: preparing the police report, preparing the warning to motorist, setting up the breath test machine, communicating with other officers, etc.
These tests are subject to error. If you believe you were sober, but the breath test result indicated otherwise, there is a possibility that the breath test result was false. Detailed review of the testing procedure is required in each individual case.
Factor Six: You
The charge of Driving Under the Influence carries a social stigma. If you were charged with a DUI, then you must be a monster, an evil, irresponsible and dangerous criminal. WRONG!
This is what the prosecutor will believe after reading the biased, out-of-context police report documenting your alleged incident. That is how the prosecutor will portray you to the Judge or jury. You and your lawyer must destroy that mischaracterization and perception.
Your lawyer must show a prosecutor and Judge or Jury that you are a decent and nice human being. Your lawyer must “humanize” you. For example, your lawyer must advise the prosecutor that you are married, have children, have never before been arrested, are employed full or part-time, have coached a little league baseball team or park district soccer team, or devoted time to your church or boy scout troop or local charity. In other words, but for this error in judgment, you are an otherwise honest and law-abiding citizen.
Your lawyer must be able to communicate this information in Court. You and your lawyer must be able to communicate positive messages.
How? We live in a world where first impressions are important, and our appearance conveys a message. You can communicate positive messages by your appearance, posture, the respect you show the Court, and every aspect of the way you speak and conduct yourself in Court.
Dressing for Court, as if you were dressing to attend your place of worship, is important. Court is no place for sloppy hair, jeans, tank-tops, sandals and visible body piercings. You may, however, be an artistic individualist, and choose to appear that way: tattoos, body piercings, an “outrageous” hairstyle, etc. There is certainly nothing wrong with this, but you must be aware, and remember, that the jury or judge who will judge you and your case will also judge the message you convey by your appearance.
Your posture and the manner in which you address the Court are also important. Standing straight (not necessarily in military-like fashion), not slouching or dragging your feet, and responding to the Court with “Yes sir, no sir, yes ma’am, or no ma’am” go a long way toward creating a favorable impression.
Conveying a positive message can also be achieved by the way your lawyer treats you, relates to you and speaks to you in Court. It can also be achieved by the manner in which your lawyer conveys your life story to the Court. Your job or profession does not matter; you must convey that you live a positive and productive life, that you give of yourself to society and your family.
If the people on the jury like you, they will give you the benefit of the doubt. If the jury dislikes you, they will have no reservations in finding you guilty. Juries are intelligent. The jury knows when a person is not being sincere; the jury can detect deception. If you lie, the jury will know it. If you are honest, the jury will know it, too. Be yourself. Be the kind of person that ordinary, average people want to believe. The real, sincere you must shine through.
I believe in the right to be left alone, to be free of unreasonable searches, to enjoy the presumption of innocence, the right to fair trial and the right to a fair verdict. If you and your lawyer carefully consider the Six Key Factors of a driving under the influence case, you will have a fighting chance.
Reproduced with permission from Attorney Andrew Mishlove.