There is a general misconception about DUI Defense that these cases are not winnable. If the breathalyzer or the blood test shows at or above a 0.08%, there is no way to successfully defend the case. The reality is that there are multiple ways to defend these cases.
(1) Many DUI charges are based on circumstantial evidence. There is often no eye witness to the actual driving of the vehicle. This has become much more common through the years, since the media campaign to “Report drunk drivers.” Many times, the police will receive a call that someone is allegedly driving intoxicated. Often, the caller will include the license plate number of the vehicle. What basically occurs then is the closest police unit is dispatched to the vehicles location. Generally, the car is long gone by the time the police arrive, so the police simply run the license plate number to find out the registered owners address, and proceed to that location. If the vehicle is present, law enforcement generally effectuates an arrest of whoever admits driving the vehicle, no matter when the driving or the drinking occurred. There are numerous issues with these types of cases. There generally is not enough probable cause for an arrest, let alone enough evidence to convict beyond a reasonable doubt that the defendant was driving with a blood alcohol level of 0.08% or more at the actual time of driving.
(2) “Rising Blood Alcohol”: this defense deals with the way alcohol absorbs into the blood. When alcohol is consumed it first enters the stomach. From the stomach, it absorbs into the blood stream. When alcohol enters the blood, this is when intoxication occurs. The process of moving into the blood stream is referred to as “absorption.” How long it takes for absorption to occur is the crux of the rising blood alcohol argument. We are all unique, and we all have a different amount of time it takes for absorption to occur in our bodies. Absorption can take as fast as 30 minutes, to as long as two hours. The following hypothetical best demonstrates “rising blood alcohol”:
Hypo: Jane is drinking throughout the night and has a shot of whiskey at last call. She is pulled over within 30 minutes of leaving the bar. She is given the Preliminary Alcohol Screening Breathalyzer, 15 minutes after being stopped, on the side of the road and the results are a .11. She is arrested and taken to jail where she provides another breathalyzer result of a .13. Therefore, if Jane had a shot of whisky at last call, and was pulled over within thirty minutes of leaving the bar, at the actual time of driving, she more than likely had unabsorbed alcohol in her stomach, which had not absorbed into the bloodstream. Therefore if she was a .11 forty-five minutes after leaving the bar, she very well was far below this at the actual time of driving.
- Here is the catch with the Prosecution's case: the prosecutor will always use an expert witness to explain the absorption process in an attempt to determine the defendant's blood alcohol level at the time of driving. This expert is always a Forensic Toxicologist who is employed by the government in a full time capacity. The prosecutor will ask the Toxicologist a number of hypotheticals like the one above to attempt to prove that the defendant's blood alcohol level was a 0.08% or more at the time of driving. The toxicologist will write down the hypothetical facts and calculate a result right there in front of the jury. They always start their answer to the hypothetical “Assuming full absorption.” They will then justify full absorption has occurred based on “studies and research,” that show the average absorption rates is between 30-45 minutes. They generally will not be able to name the actual studies they are relying on, and will certainly not disclose that there are comparable studies that show absorption can take much longer, all the way up to two hours in some individuals. They basically determine their answer based on an assumption that was not presented in the hypothetical in the first place, and it is an assumption that is not scientifically sound. They mislead the jury, and it is the defense attorney's job to make that fact clear. “Rising blood alcohol” and the absorption of alcohol into the bloodstream are complicated subjects, and a thorough understanding of the issue is necessary for the defense attorney. Generally the prosecutor really will not understand it all that well, which gives the defense a distinct advantage. The defense attorney also needs to be able to explain it to the jury in layman's terms, so a complete understanding of the science of this issue is mandatory. As Einstein once said: “If you can't explain it simply, you don't understand it well enough.”
(3) Preliminary Alcohol Screening Breathalyzer: a page of this website is dedicated to PAS breathalyzer, but in brief, any PAS result has to jump several hurdles to be admitted into evidence. A strong defense should preclude these results from ever being seen in a courtroom.
(4) The Breathalyzer/Blood test: the same analysis of the PAS can also apply to the blood or breathalyzer test. Depending on which test was performed, there are multiple ways to have these results excluded.
- When dealing with the PAS, Breathalyzer, or Blood test, there are two main ways to defeat this evidence. The first is to make sure the evidence is excluded, meaning the jury never hears about it. The second, if unsuccessful in excluding the evidence, is to show its inherent unreliability based on the lack of scientific support, or in the way that the evidence was obtained. Refer to the specific pages on this website that deal with these issues.
(5) Challenging the Initial Stop/Arrest: Many times, these cases can be defeated before any examination of the chemical test evidence is necessary. The Fourth Amendment of the Bill of Rights protects against unreasonable search and seizure. The police have to be able to provide a justification for the initial stop of your vehicle in the first place. They must show a reasonable suspicion of criminal activity. The Police must be able to articulate these suspicions; a mere hunch does not suffice. Therefore, if you were pulled over for no reason, or an invalid reason, all of the evidence that is gathered after the initial stop (which is generally all of the evidence in the case), is suppressed, meaning not allowed into court. The Law of Search and Seizure is complex, and there are pages on this website that deal with it, but for now, it should be stated that an unlawful stop can get the DUI case dismissed.