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I Have Been Charged with a DUI:  How Strong is My Case?

 

Common Misconceptions

 

There is a general misconception among the public that the strength of your case - especially if it is a first-time DUI offense -depends upon some or all of the following factors:

 

  • You have a clean driving record
  • You do not have a criminal record
  • You are a law-abiding and respectable member of society
  • You are an occasional versus heavydrinker
  • You have a prescription for the drugs they were taking at the time of the arrest or the medicines were over-the-counter
  • You were forced to drive because of an emergency
  • There was simply no other form of transportation available to them
  • You weren’t actually operating the car at the time of the stop – just sitting or sleeping in it
  • You were very close to home at the time of the stop

 

These factors are largely irrelevant to the strength of the defendant’s case.  If the prosecution feels it can prove that you were impaired to the slightest degree at the time of driving, and the chemical tests administered to you indicate that you had consumed drugs or alcohol, even if you were below the legal limit or had a prescription for the drugs you had taken, you will more than likely charged with a DUI.

 

How Does Law Enforcement Build a Case Against Me?

 

There are three separate stages that take place in order for law enforcement to build a case against you.

 

Encountering a Possible DUI Offender

 

First, the police officer must have reason to pull you over, or you may have been stopped at a sobriety checkpoint or roadblock, which are becoming increasingly common in many states, particularly during public holidays, or large national sporting events such as the Super Bowl, when people are more likely to drink and drive.

 

Reasonable Suspicion and Probable Cause

 

Second, the police officer must have reasonable suspicion to continue with a DUI investigation and at that time establish probable cause to arrest you and bring you back to the station.  This is done by asking you to step out of your car and perform field sobriety tests, asking you a series of questions about where you were going to and from and where you were headed, and also asking you to take a portable breath test.

 

Questioning and Chemical Testing

 

Third, the police officer will interview you more thoroughly back at the station about what you had been doing prior to the time of the stop, whether you had been drinking or using drugs – legal or illicit, and will ask you to provide a blood, breath or urine sample, which is key to proving your guilt or innocence as scientific is very difficult to refute in court (although not impossible).

 

During the entire process the police officer will be observing your demeanor and looking for any physical indicators that you were intoxicated, either from alcohol or drugs.  Any indicators will be noted in the police report and will later be used against you in court if you are charged. Therefore how you conducted yourself throughout these stages – for example, whether you were calm and collected, or uncooperative, uncoordinated and belligerent - can make a significant difference to the strength of the case against you and the penalties you will ultimately face if convicted. 

 

Determining the Strengths and Weaknesses of Your Case

 

Below is an overview of the types of things an experienced DUI attorney will be looking for when examining your case to determine its strengths and weaknesses.

 

Did the police officer have reasonable suspicion to stop you in the first place?

 

A driver may come into contact with the police for any of the following reasons:

 

  • The driver has been involved in an automobile accident; the officer has responded to the scene and is conducting an investigation.
  • The driver has been stopped at a sobriety checkpoint (also known as roadblocks).
  • The police have received a report, possibly from an anonymous citizen, that a described car has been driving erratically. The officer should verify the erratic driving before pulling the driver over.
  • The officer on patrol has observed erratic, suspicious driving, or a series of traffic infractions indicating the possibility that the driver may be impaired. This is by far the most common reason for stopping a suspect.
  • A police officer has stopped a vehicle for a lesser traffic offense, notices the signs of intoxication, and begins the DUI investigation

 

Did you take and fail the standardizedfield sobriety tests?

 

If you took and failed any of the standardized field sobriety tests –  Walk-and Turn, One-Legged Stand, and the Horizontal Gaze Nystagmus  - this evidence can later be used against you in court.  Although a skilled lawyer may be able to discredit this evidence, if for example  the officer was not properly trained to administer the tests, most will advise you to simply not take them in the first place.  This is because the tests are inherently designed to fail and so even a completely sober person could fail any of the tests at any given time.  As the tests are voluntary, most DUI attorneys will advise you to politely decline to take them.

 

Did you take a Portable Breath Test, and what was the result?

 

If you took a PBT and the result showed you were over the legal limit at the time you were stopped, this evidence can later be used by the prosecution in court to show that an officer had probable cause to arrest you.

 

A skilled lawyer may be able to argue that the breath test machine was faulty, or not calibrated properly and so gave a false reading, in which case the investigation following the PBT may be considered invalid if that was the sole basis for the arresting officer’s probable cause. 

 

Did the police officer have probable cause to arrest you? 

 

Probable cause is established by the police officer not only through the use of the field sobriety tests and portable breath tests, but also through observance of your driving prior to the stop and your conduct or physical appearance at the time of the stop.

 

Below is a table of DUI indicators that police officers use in order to determine whether they have probable cause to arrest someone they suspect of committing a DUI. The percentage figure pertains to the statistical chances through research conducted by the National Traffic and Highway Safety Administration ( NTHSA)that a driver is over the legal limit.

 

 

Factor

 

% Chance Driver is Over .08 BAC

Turning with wide radius

65

Straddling center or lane marker

65

Appearing to be drunk

60

Almost striking object or vehicle

60

Weaving

60

Driving on other than designated roadway

55

Swerving

55

Slow speed (more than 10 mph below limit)

50

Stopping (without cause) in traffic lane

50

Drifting

50

Following too closely

45

Tires on center or land marker

45

Braking erratically

45

Driving into opposing or crossing traffic

45

Signaling inconsistent with driving actions

40

Stopping inappropriately (other than in lane)

35

Turning abruptly or illegally

35

Accelerating or decelerating rapidly

30

Headlights off

30

 

A rule of thumb is that there must be more than a 25% statistical chance that you are over the legal limit to establish reasonable suspicion and allow the police to continue their investigation.  Probable cause requires a 50% or more chance that you are over the limit, and needs to be established before they can arrest you and bring you back to the station.

 

Notice that “Appearing to be drunk” carries a 60% chance that you were over the limit and can therefore lead to an automatic arrest whether or not you agreed to the field sobriety and portable breath tests.  Whether you appeared to be drunk is not merely a subjective determination made by the police officer, rather he or she is looking for actual physical symptoms that you were intoxicated (see below).

 

What physical symptoms did the police use to determine that you were intoxicated?

 

In the police report, the officer will have noted any of the following physical symptoms that you exhibited during their investigation.  The more symptoms noted, the stronger the prosecutor’s case against you.  These symptoms include:

 

  • Odor of alcohol on your person or in your car
  • Bloodshot, droopy or watery eyes
  • Slurred speech
  • Flushed facial complexion
  • Lack of coordination/fumbling to find your license

 

A skilled lawyer may be able to discredit this evidence, if they can prove that there were reasons other than alcohol or drug consumption that caused the symptom.  For example, your eyes were droopy because you were tired after driving after a long day at work, or your face was flushed because you were having a hot flush due to the menopause, or you had just come from the gym.

 

What questions did you answer at the scene and back at the station?

 

During the initial investigation at the scene and back at the station after you have been arrested, the police officer will ask you a series of questions designed to strengthen the case against you.  These questions will include:

 

  • Where were you going to and coming from
  • Had you been drinking or taking any drugs – legal or illicit – prior to driving
  • If you had been drinking, how many drinks did you have and what were they
  • How long ago had you consumed the drinks
  • When was the last time you ate
  • Do you have any physical or mental conditions and are you taking any prescription medicines

 

Giving any kind of answer to these questions can be detrimental to your case.  For example, if you tell the police officer that you were driving back from a bar or restaurant and had consumed a couple of drinks, but didn’t feel intoxicated, this will most certainly be used against you later on.  If you lie to the officer and claim that you had not been drinking or using drugs, but the chemical tests later reveal that you had in fact been doing so, this further discredits you and any other testimony that you could have given to mitigate the charges against you.

 

The law states that you do not need to answer any of the police officer’s questions both at the scene and back at the station, with the exception being that you were involved in an accident. 

 

Given this, most DUI attorneys will advise their clients to not answer any questions asked by the police until you have had a chance to consult with an attorney – which the police legally must allow you some time to do (normally 30 minutes) before you are interviewed at the station.  If the police did not inform you of this right, or allow you time to contact an attorney, this could be grounds for the dismissal of your case.

 

Did you submit to or refuse a chemical test?

 

There are three types of chemical tests that you may have been asked to take back at the station:

 

 

Which tests you were given depends on the city and county in which you were arrested.  While there are a number of factors that can cause inaccurate results with each of these tests, scientific evidence is still generally difficult to refute in court.  So if you know you were heavily intoxicated, you may decide to refuse the test altogether and forfeit your license for a year rather than face prosecution.

 

While it is true that the prosecution will have a harder time proving the case against you with the results of a chemical test, they may well still proceed with prosecuting you if they feel the other evidence against you is strong enough.  You will also lose your license automatically for a year or more, and can still be forced to submit to a test in some states as the police can petition a judge to grant a search warrant to forcibly obtain a specimen from you, in which case you may has well have just agreed to the test in the first place.

 

Did the Police or Lab follow proper procedure?

 

An experienced DUI attorney will sniff out any errors in the way your chemical tests were administered or handled like a bloodhound.

 

If it can be shown that proper procedures were not followed, for example, the physical specimens were not properly stored or handled, the breath test machine at the station was not correctly calibrated, or there was a lapse in the chain of custody of the specimens, this will undoubtedly strengthen your case and could lead to a lessening of the charges against you or to them being dropped entirely.

 

Does hiring a lawyer make a difference to the strength of my case?

 

Only an experienced DUI attorney can tell you exactly how strong the case against you is, and what are the potential penalties you are facing.

 

Given the complexity of this area of law and the myriad of factors involved, it is in your best interest to consult with an experienced DUI lawyer, and to do so as soon as possible after you are charged with a DUI offense.  Your first court date is typically around 2 weeks after your arrest soyou want to give your attorney sufficient time to review the evidence against you.  This is the only way to ensure you have a strong line of defense, or at least enough leverage to negotiate a favorable plea-bargain with the prosecution, before stepping foot in court.

 

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