Disclaimer: Ratek Group, Inc. is not dispensing legal advice and in no way represents any information offered as legal advice. No legal advice is

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1 DUI DEFENSE STRATEGIES GUIDE FIND OUT WHAT TYPES OF INFORMATION YOU SHOULD BE GATHERING RIGHT NOW TOP DUI DEFENSE STRATEGIES AND INFORMATION YOU MUST KNOW! Disclaimer: Ratek Group, Inc. is not dispensing legal advice and in no way represents any information offered as legal advice. No legal advice is offered from this information guide in any way, shape or form. You should consult a qualified attorney before making any legal decisions about your future. The information contained herein is meant for educational purposes and the results and the performance of the information is the sole responsibility of the reader. 1

2 2009 Ratek Group, Inc. All Rights Reserved. All material appearing in this educational guide is copyrighted material belonging to the Ratek Group, Inc. and is protected by copyright and other intellectual property laws. Copyright infringement will result in appropriate action being taken under the Digital Millenium Copyright Act, Title 17, United States Code, Section 512(c)(2) ("DMCA") and other applicable intellectual property laws. No part of this guide may be reproduced, distributed, stored, or transmitted in any form or by any means without permission of the authors of Ratek Group, Inc. This guide is sold with the understanding that the authors are not rendering any legal or other professional advice. The information contained herein is merely information from a collaboration of people and is not considered expert. Any person following the information given in this guide does so at his/her own risk and cannot hold the authors liable for any outcomes that may result from them, criminally or in any civil case. The information is the sole opinions of the authors and nothing else. The authors are not representing themselves as attorneys in any way and this guide in no way constitutes an attorney client relationship. Published and Printed in the United States of America No previous editions. There are NO REPRINT rights with this guide. You are not allowed to distribute, resell or reprint this material in any way. Any violation will be prosecuted to the fullest extent of the law. If you obtained this guide from anywhere except the website please contact the webmaster and notify us as to where you obtained your copy. 2

3 Table of Contents TABLE OF CONTENTS...3 FOREWORD WHAT YOU DON T KNOW CAN HURT YOU...4 CHAPTER 1 CREATE AN EVENTS JOURNAL...7 CHAPTER 2 LEGAL DEFINITIONS AND POTENTIAL TECHNICALITIES CHAPTER 3 TOP DUI DEFENSE STRATEGIES CHAPTER 4 OFFICER DISCIPLINARY ACTION & CHARACTER HISTORY CHAPTER 5 POLICE DEPARTMENT COMMUNICATION RECORDS CHAPTER 6 MONEY WINS CASES SUMMARY

4 FOREWORD What You Don t Know Can Hurt You Whether or not you intend to hire an experienced DUI lawyer to represent you in your pending DUI case, plan on representing yourself in court or qualify financially to have a court appointed public defender, it is extremely important for you to learn as much as you possibly can about your states drunk driving laws and how they relate to your situation. Everyday drivers are wrongfully trapped and arrested under the legislature s broad and vaguely defined drunk driving laws. To presume that a person is intoxicated at a prescribed blood alcohol concentration level is not necessarily applicable to every driver. Driver s who have a higher tolerance level can drive without exhibiting any signs of impairment, but this is extremely difficult to prove and very expensive to fight. In this day and age it is becoming more and more the norm for juries to convict a person on a drunk driving charge based solely on the chemical test results exceeding the legal limit, rather than full examining the scientific evidence that has been presented to them that refutes the test validity. The proposed defense strategies outlined in this guide, if properly followed and implemented, will improve every person s chances of walking away from a drunk driving charge without the stigma of a criminal conviction. The first thing we recommend you do is to read the entire guide to get an understanding for what is contained within these pages. Then once you have read through the guide once, start thinking about the various defense strategies that have been outlined and how they might fit into your defense strategy. Each and every DUI case is unique from both a legal and factual standpoint. The DUI system is not a one size fits all scenario. It is impossible to provide definitive solutions to every legal issue a person may face in their case within this guide. 4

5 A lot of people who have been charged with DUI take the standpoint of yeah I was drunk and I shouldn t have been driving, I can t afford a lawyer to defend me in court, so I m just going to represent myself and plead guilty. Sound familiar? Pleading guilty to a drunk driving charge may seem like the quick and easy way to get the situation over with, but that thought process couldn t be further from the truth. What most people don t think about in this situation is their future and the potential impact on their future if they plead guilty. Pleading guilty to a drunk driving charge in a lot of states can mark a person for life. A large number of states DO NOT ALLOW EXPUNGEMENT IF A PERSON PLEADS GUILTY TO A DRUNK DRIVING CHARGE. If you care about your future and want to be able to expunge your DUI charge from your criminal record after you have completed all of the court appointed punishments, then you need to stop and think about the potential ramifications of pleading guilty and whether or not your state allows expungement of DUI records if a person pleads guilty. Pleading guilty will result in the maximum penalties and fines being assessed, whereas pleading not guilty can result in the penalties and fines being reduced or even having the charge dropped. If you plead not guilty and do not win, the worst thing that can happen is that you receive the maximum penalties and fines, but you will still have the option of expungement down the road depending on which state your DUI occurred in. Remember that asserting your legal rights and pleading not guilty does have its consequences. It will require an extensive time commitment and can be a very nerve-racking experience. However, this commitment is nothing compared to the costs you may face if convicted. As with any method or strategy, information alone won t make you successful. You have to put your mind and heart to work. To achieve success, you must have knowledge, determination, and persistence. 5

6 Please understand that the defense strategies that are outlined in this guide are just that, an outline and overview of the possible defense strategies. This guide in and of its self is not going to win your case; you must put in the time and effort to learn as much as you possibly can in order to help yourself. What this guide will do for you, is to open your eyes to a lot of information that you would never have known about if you hadn t purchased this guide. We are not going to preach to you about why it is so important to hire an experienced DUI lawyer to represent you in court. That is not the purpose of this guide. The purpose of this guide is to give you an overview of possible defense strategies that work. It is up to you to research each of the strategies that have been outlined that you feel might be viable defense strategies in your case. If you have hired or intend to hire a DUI lawyer to represent you in your defense, then good for you, you have taken a major step towards a successful defense. But, even if you have hired a DUI lawyer to represent you in court, you still owe it to yourself to learn as much as you can about the possible defense strategies and how they might apply in your case. Don t leave anything to chance. 6

7 Chapter 1 Create an Events Journal The first thing you are going to want to do after being released from police custody is to create a journal of the days events leading up to your arrest and everything you can remember from the time you were stopped until the time you were released from jail. When I say everything, I mean everything. I recommend using a spiral bound notebook as your journal. That way everything is organized in one place and you won t be hunting for loose notes. The smallest details can make a difference. Start your journal entries approximately 24 hours before the DUI stop. Start by documenting your sleep pattern 1. When did you go to sleep the night before? 2. How many hours of sleep did you get? 3. How many hours had you been awake before the DUI stop? Document your eating & drinking patterns 1. What did you have for dinner the night before? 2. Did you have any snacks before going to bed? What was the snack? 3. What did you have for breakfast in the morning? 4. What did you have for lunch the day of the arrest? 5. What did you have for dinner the day of the arrest? 6. Did you have any snacks in between meals? What were those snacks? 7. Don t forget to include what you drank with each meal and in between meals. How much milk, soda, juice, water? Document who, what, when and where 1. Who were you with before the stop? 2. What were you doing before the stop? 7

8 3. Was anyone in your vehicle during the stop? 4. Where did you go that day and what did you do at every place that you went? (Write down the exact times of each event) 5. Were there any witnesses at the stop? 6. What are the names of the police officers you dealt with during the stop and at the police station? 7. What was the name of the person who conducted the official breath, blood or urine test at the police station? 8. Is the person who conducted the official test licensed by the state and approved to administer a chemical test? Journal layout What I recommend doing instead of just jotting down a bunch of random notes that you or your lawyer won t be able to make heads or tails of later on, try to write each of your journal entries using the same consistent pattern. Start by writing down the date, the time, the place and then below that line write down a detailed description of who, what, where, when, etc. Example: Date: 02/20/2009 Time: 10:30 p.m. Place: My apartment Details: At 10:30 p.m. the night before the arrest I went to sleep and slept until 5:30 a.m. the next morning. Seven hours of sleep the night before the stop. Date: 02/20/2009 Time: 5:30 a.m. Place: My apartment Details: Morning shower and shave routine. Date: 02/20/2009 Time: 5:50 a.m. Place: My apartment 8

9 Details: Prepared 2 eggs, 2 pieces of bacon, 2 slices of wheat toast with butter and had two 8 ounce cups of black coffee. Date: 02/20/2009 Time: 6:30 a.m. Place: Freeway Details: Left my apartment at 6:30 a.m. and drove to work. Traffic was fairly heavy this morning and I was quite tense by the time I arrived at work. Date: 02/20/2009 Time: 7:00 a.m. Place: Work Details: Arrived at work. Grabbed a cup of coffee from the vending area and proceeded to my cubical. I think you get the idea here. You want to be as detailed as possible. Do not leave anything to chance. I know this may seem like a trivial thing and a waste of your time, but when out of the blue your lawyer or worse yet, the prosecuting attorney asks you what you did leading up to the stop and you can tell them in detail as to what you did, that s huge! 9

10 Chapter 2 Legal Definitions and Potential Technicalities In this chapter you are going to learn the meanings to a number of legal definitions that you are going to hear over and over, from both your lawyer and during your trial. Legal Definition of Driving The first legal injustice is that actual physical control of a vehicle is not always necessary for a drunk driving conviction. To constitute driving, there is usually a requirement that the driver have sufficient control over the vehicle. Example: A guy and his buddy drove their car into a ditch, burying it in mud. While the two guys were trying to dislodge the car from the mud a police officer arrived on the scene. The officer charged the person behind the wheel at the time, while the car was in the ditch with DUI. Even though the vehicle was inoperable at the time and there was no proof that the person behind the wheel was the one who was driving the vehicle while it was on the road, the court upheld the conviction claiming that the driver had sufficient control of the vehicle. Engine Running In the eyes of the court, a running engine constitutes sufficient control of a vehicle. Example: A person is driving down a highway when another motorist calls the police and informs them of the potential drunk driver. An officer waits for the 10

11 suspect vehicle to approach their position from down the road, the officer then observes the driver s behavior and if in his opinion the driver s actions warrant a stop, the officer will initiate a DUI stop. Informants have become an important tool for police in the battle against drunk driving, but it is not enough for someone to phone in and inform the police of a drunk driver. The officer must observe first hand, actions that are consistent with drunk driving in order to initiate the stop. Witness Evidence Another scenario involves the legal impact of not having corroborating evidence to substantiate the motorist s version of the events. The best corroboration is eyewitness testimony or video recordings. Example: An officer arrives on the scene of a one-car accident; a cameraman from a hit television show is along for the ride. The officer arrested the driver for drunk driving. When the case went to court the officer was adamant about the driver s intoxication at the time of the arrest, but the videotape from the in car camera and the cameraman s camera was enough to prove to the jury that the defendant was sober and the charge was dismissed. By excluding the witness from the list, the prosecutor basically allowed the defendant to be acquitted in this case. If the witness had not been excluded from the list, the defendant surely would have been convicted. When you re at the police station and you are given your one phone call, the person that you called should be questioned. If for instance you happen to have contacted your lawyer and if the lawyer s testimony would be favorable as evidence in the case, then the testimony should be used in your defense. A testimony like this can be highly persuasive in a trial. 11

12 Place the Defendant at the Scene In certain circumstances, the prosecution must place the defendant at the scene and often behind the wheel, to be able to prove the driving element of a drunk driving offense. Example: An officer arrives on scene to an accident where the alleged drunk driver has left the scene of the accident. Even later when the driver is caught, he volunteers incriminating information, but the prosecution must still provide evidence that the person in question was actually driving the vehicle at the time of the accident in order to charge the defendant with DUI. Note: Current drunk driving laws make it nearly impossible to disprove driving, especially if the defendant is the sole occupant of the vehicle or lacks any corroborating evidence to the contrary. Although the prosecution may file drunk driving charges on these technicalities, obtaining a conviction is entirely a different matter. Proving Intoxication Most states will use two methods of proving intoxicated driving, an objective test and a subjective test. From a defense standpoint, it is much easier to refute the subjective test evidence because the subjective test is based entirely on non-scientific evidence. In either case, it is important for you to understand both aspects of determining intoxication. Objective Test The objective test is the chemical test that you submitted to at the police station. This test involves both scientific and medical evidence in order to establish the defendant s blood alcohol concentration level. The equipment used to calculate your BAC level monitors the body specimens of blood, breath or urine. Testing reliability depends on a number of factors, but generally the breath test result is considered the 12

13 least reliable and easiest to refute. The blood test is considered the most reliable. Subjective Test The subjective test utilizes sensory perceptions to identify and describe intoxicated behavior. Testimony from the arresting police officer is based solely on his training in detecting the indicators of intoxication in a defendant. Subjective indicators are: Bloodshot or watery eyes Smell of alcohol Unsteady balance Flushed face Slurred speech Despondent or excited behavior It is fairly easy for an experienced DUI defense lawyer to refute any subjective evidence because the defendant can present logical explanations for the alleged intoxicated behavior. BAC Levels When Driving Occurred The key to prosecuting a drunk driving case is proving the motorist s BAC level at the time of driving. For a conviction to happen, the driver must be legally at or above the legal limit at the time of operating a motor vehicle. From a defense standpoint this is referred to as the rising BAC theory. For instance, if more than two hours lapse between the time you were actually driving and the time of the official chemical test, your defense lawyer can often show that your BAC level was below the legal limit at the time of driving. Since the human body continuously metabolizes alcohol, any extended delay can dramatically alter the BAC level. Also any consumption of alcohol after the alleged driving will skew the BAC readings. 13

14 Example: The police were called to the scene of an accident, but were slow in arriving, so the defendant walked over to a nearby bar and consumed some more alcohol. The BAC reading showed that the person was above the legal limit, but some of the alcohol was consumed after the accident. Even though the prosecutor will infer that the defendant consumed alcohol in an attempt to distort the results of the chemical test, the defendant can offer expert testimony to verify that many individuals resort to alcohol to calm their nerves after a harrowing experience such as a an accident. No defense lawyer would ever advocate the consumption of alcohol solely to avoid a drunk driving charge, but it has happened and defendants have successfully used this defense scenario. 14

15 Chapter 3 Top DUI Defense Strategies Below is a list of top DUI defense strategies that you and your DUI defense lawyer might use in your case. Not every one of these defense strategies applies to every case. As you go through the list, think about which of these strategies might apply to your case and make a note in your journal. Once you ve hired an experienced DUI defense lawyer to represent you in your defense, you are going to want to meet with him or her and go over your list of potential defense strategies that you feel might apply and to also hear what your lawyer thinks your defense strategy should be. Doing this will accomplish two things: 1. It will show your lawyer that you are doing research on your own and are well informed when it comes to your options and that you are very serious about winning your case. 2. You might very well give your lawyer a possible defense strategy idea he or she hadn t thought about until you brought it up. Note: Create a separate page in your journal to list all of the possible defense strategies that you think might apply in your case so that you can discuss them with your lawyer. Title the page Possible Defense Strategies. Caveat: The DUI prosecutor is going to point to several pieces of evidence that suggest that you were in fact driving under the influence: 1. Poor navigation of your vehicle. 2. An odor of alcohol flowing from the vehicle and your breath. 3. You appeared to be intoxicated. 4. Poor performance in the field sobriety tests, if you took them. 5. The official result of the breath, blood or urine test. 15

16 Each one of these pieces of evidence are ambiguous, subject to multiple interpretations, unreliable and based on faulty assumptions and are open to attack from the defense. Top Defense Strategies GERD or heartburn caused a false high reading on the breath test: Suffering from acid reflux or heartburn can fool the breath machine, causing an inaccurately high reading of the blood alcohol level. The breath machine is supposed to receive and measure alcohol from the deep lung tissue, a region of the lungs called the alveoli. Breath alcohol concentration from this alveolar air is thought to correlate with blood alcohol concentration. But acid reflux can cause alcohol to travel from the stomach back to the throat and mouth. When this happens, the DUI suspect blows this mouth alcohol (rather than alveolar air alcohol) into the breath machine. The machine then provides a reading much higher than the DUI suspect s true BAC level. A person with a true BAC of say.05 can read as high as.20 in this situation. Even if you don t suffer from acid reflux, if you had consumed a large meal, a greasy meal or a spicy meal, these can also cause false BAC readings. Also if you happen to burp or belch prior to the test, the officer is suppose to wait 10 minutes before administering the test because burping or belching also creates this condition. The officer failed to read you your Miranda Rights By law the arresting officer must advise you of your Miranda Rights in a DUI case if: 1. You are in custody 2. The officer questions you to try and elicit an incriminating response. Basically any incriminating responses you gave prior to being read your Miranda Rights will more than likely be excluded from evidence. 16

17 Weaving within your lane does not justify a DUI stop A large number of DUI stops occur because the officer claims to have observed the suspect weaving within their lane of traffic, perhaps the tires touched the lane divider, or you briefly encroached into the other lane. Courts have ruled that this usually does NOT justify a DUI traffic stop unless an experienced officer observed, a pronounced weaving for a substantial distance. If the court finds that the traffic stop was not justified, the entire DUI case will most likely be dismissed. When the court says an experienced officer, that is open to contention. You and your lawyer need to look into the officer s background. What qualifies him as an experienced officer? Alcohol on your breath does not mean that you were under the influence When the officer gives his explanation to the court as to why he believes you were drunk, the officer almost always mentions smelling a strong odor of alcohol on the defendant breath. But on cross-examination, the officer will look foolish when he admits to your lawyer that alcohol itself has no odor. Rather, it is the mixing agent or flavoring that produces the odor people typically associate with alcohol. Laboratory studies show that an officer s perceptions of how strongly a person s breath smells of alcohol simply doesn t correlate with the person s blood alcohol level. The only assumption that the officer can make from the odor of alcohol on the breath is that the suspect probably consumed some alcohol recently. But it does not provide evidence that the person drank enough alcohol to be under the influence or to have a BAC level of.08% or greater. The officer lacked probable cause for the DUI arrest After conducting the roadside DUI investigation, the officer can only arrest you, if he or she has probable cause for the arrest. This means that the 17

18 evidence must rise to a level in which a reasonable police officer would believe that the crime of drunk driving has been committed. You are entitled to a special court proceeding called a suppression hearing in which a judge decides whether or not the officer had probable cause for the arrest. At the hearing, the officer testifies and is cross-examined by your lawyer. After all the testimony is heard from the officer, the judge will decide whether or not the arresting officer lacked probable cause, then the subsequent breath or blood alcohol test is excluded from evidence. Often times in a situation like this the entire case is dismissed. Typically a judge will side with the prosecution at the suppression hearing, finding that probable cause did exist. That s ok, what this hearing is really about is allowing your lawyer to cross-examine the officer and confront him about the problems with the DUI investigation. This examination often leads to the prosecution either reducing the charge or to settle the DUI case on terms more favorable to the defense. Innocent explanations for your faulty driving Perhaps the officer saw you swerving for a short distance or making a wide turn or maybe drifting out of your lane momentarily. The reality is that even sober drivers engage in these types of driving miscues all the time. Think about it for a moment, how often do you see a car drifting around in the lane, only to look over and notice the driver on a cell phone or trying to text message while they are driving? Everyone has been guilty of behavior like this at one time or another. The alleged signs of DUI are actually signs of fatigue Many of the typical symptoms associated with DUI can just as easily be explained by fatigue. Sheer exhaustion will cause you to drive poorly, to have bloodshot and watery eyes, to respond slowly to some of the 18

19 officer s questions and to struggle with the field sobriety tests, which require extreme vigilance and good coordination in order to pass. Driving while exhausted can easily be confused with the symptoms of driving under the influence of alcohol. Your lawyer must emphasize to the court these non-alcohol-based explanations for the officer s observations. Your blood alcohol level was rising It s not uncommon for a DUI suspect to blow a.15 at the police station, but to have only registered a.07 BAC when he got pulled over. How can this be? Because alcohol takes anywhere from 50 minutes to 3 hours to fully be absorbed into your bloodstream (the length of time depends on the person) and create your peak blood alcohol level. This is very critical if the DUI stop occurred relatively soon after you finished drinking. You may have been a mile from your home when you were stopped and blew a.07 blood alcohol level, but then over an hour later at the police station you blew a.15 blood alcohol level. In a case like this you would have been home before you reached the legal limit. The prosecution must prove that your blood alcohol level was.08 or greater at the time of driving. There is no law against having a.08 or greater blood alcohol level while you were at the police station. 15-minute to 20-minute observation period not followed Depending on the state, the officer must observe the DUI suspect continuously for at least 15 to 20 minutes (varies by state) prior to administering the roadside breath test. The officer must make sure that during this period the suspect does not consume anything, burp, belch, hiccup or regurgitate. Officers rarely (and I mean rarely) follow this required observation procedure. Officer s usually perform paperwork, write reports, setup the Breathalyzer and converse with any fellow officers who happen to be on scene, all the time their attention is being diverted away from the suspect who must be watched vigilantly during this period. Failure to follow this 19

20 procedure casts doubt on the validity of the test result and can sometimes get the test thrown out of court. Inherent error rate in DUI blood and breath testing Let s assume that the maintenance and calibration of the machines are perfect, the breath or blood test is administered exactly according to procedure and no background or physiological factors exist that would produce false results (the above scenario is extremely rare). There is an inherent error that exists in both testing procedures. Most experts agree that the inherent error rate is about +/-.02 for DUI breath testing and +/-.005 for DUI blood testing. So even if you blew a.09 at the police station, given the +/-.02% your actual blood alcohol level could have been as high as.11 or as low as.07; which is below the legal limit. The officer had no baseline for your performance on the field sobriety tests The officer will probably claim that you performed poorly on the field sobriety tests and that this serves as evidence of your impairment. But you performed poorly compared to what? This claim means very little without knowing how you would perform the tests in a sober state. How well a person performs the field sobriety tests depends on many factors: Natural level of coordination and equilibrium Natural level of balance Fitness level Composure in the face of pressure Injuries Age Weight You get the idea; I could go on and on. 20

21 Factors other than alcohol can cause poor performance on the field sobriety tests Even if you performed less than perfectly on the field sobriety tests, this may be attributed to unfair test conditions such as: The distraction of flashing lights and traffic whizzing past. The test area being too dark or amidst glaring lights. Cold temperatures rain or wind. Unstable footwear such as boots, high heels or dress shoes. Nervousness, anxiety or frustration. Note: It should also be mentioned that a lot of times if a suspect is wearing inappropriate footwear like high heels, the officer may suggest removing the shoes to perform the tests. This can also invalidate the test if the suspect is not use to being barefoot outdoors. The standardized field sobriety tests were not properly administered The National Highway Safety Transportation Administration devised the national standards for how officers are supposed to administer the three standardized tests: 1. The horizontal gaze nystagmus test 2. The walk-and-turn test 3. The one-leg stand test But officers often fail to adhere to these national guidelines. Many never even received official training as to the NHSTA guidelines. This opens up their entire investigation against you to attack. Often times an officer will say in their report that the DUI suspect failed or performed poorly on the field sobriety tests, but when the performance is judged according to NHSTA s national standards, the person did everything correctly! This underscores a basic fact of DUI defense: the arresting officers are biased and frequently do substandard DUI investigations. Their claims and opinions should never be taken at face value. 21

22 Any non-standardized field sobriety tests lack reliability The non-standardized field sobriety tests include: The finger-to-nose test The finger count test The hand pat test The coin pickup test The alphabet test The reverse counting test The Rhomberg test (tilting you head back and estimating 30 seconds of time) The NHSTA has set no standards for how to administer, score or interpret these tests and no studies have ever shown them to be reliable indicators of DUI impairment. Therefore, they are not admissible as evidence of impairment. Field sobriety tests provide a poor measure of DUI impairment Even when the standardized field sobriety tests are administered perfectly (which is rare), they still provide a certain inaccurate measure of whether a DUI suspect is impaired. According to the NHTSA, the one-leg stand test has a 65% accuracy rate and the walk-and-turn test a 68% accuracy rate. This means that if people were convicted based on these roadside tests, one third of them would be incorrect and wrongly convicted. Or, viewed another way, when officers arrest DUI suspects based on failing these tests, one in three suspects are wrongfully arrested. Mouth alcohol can contaminate the breath test results DUI breath testing devices detect alveolar air of the deep lungs, which is loosely correlated with blood alcohol level. But the breath-testing machine can be tricked by latent alcohol in the mouth often caused by burping, belching, or recent use of cough syrup, cold medicine and mouthwash or breath spray. 22

23 When the breath-testing machine picks up mouth alcohol rather than deep lung air, it gives a BAC reading greatly higher than the true BAC level. This becomes a particular problem for DUI arrestees with dentures, denture adhesive, braces, cavities, food impactions, orthodontic work or who have food particles trapped between their teeth (all of these condition tend to produce mouth alcohol). Blood-breath partition ratio is inaccurate based on individual differences DUI breath testing assumes that breath alcohol accurately reflects blood alcohol based on a 2100-to-1 ratio. This assumption rests on the proposition that the average ratio across the population is 2100-to-1. But studies have revealed that the ratio of blood to breath varies greatly among individuals. A DUI suspect with a ratio lower than 2100-to-1 will generate an inaccurately high reading from a breath alcohol test. And there is no way to determine what a given person s ratio is, or what it was at the time of the breath test. The breath alcohol test yields excessively high results during absorption Being given a breath alcohol test while alcohol is still absorbing into your bloodstream often yields falsely high BAC readings. During the absorption stage, which can last as long as three hours after you finished during, the BAC in arterial blood is significantly higher, as much as 60% higher than the BAC in venous blood. Because the alveolar deep lung air blown into the breath machine is bathed in arterial blood, NOT VENOUS BLOOD, a falsely high BAC is generated. Police have no special ability to judge intoxication levels Police and prosecutors like to suggest that trained and experienced officers have a special ability to discern when a DUI suspect is under the influence (and therefore jurors should defer to the officer s opinion that the DUI defendant was, in fact, impaired). 23

24 Can you smell the crap they re shoveling? A controlled study performed by Rutgers University s Alcohol Behavior Research Laboratory found otherwise. A police officer s ability to judge intoxication levels was no more accurate than that of bartenders or social drinkers. NONE of the three groups correctly judged levels of intoxication more than 25% of the time. No sign of mental impairment present Being under the influence consists of two types of impairment: mental and physical. Most police will admit that upon being pulled over, the suspect was coherent, alert and responded appropriately to the officer s questions. Therefore no sign of mental impairment existed. But as any DUI toxicologists will tell you, mental impairment always precedes physical impairment. So if mental impairment was not present, then, presumably neither mental nor physical impairment was present. Innocent explanations for symptoms of intoxication Police officers almost always claim to have observed certain objective symptoms of intoxication on the DUI suspect. The standard list includes: Bloodshot and watery eyes Slurred speech A flushed face An unsteady gait or walk DUI police reports feature pre-printed boxes for these symptoms that officers merely check off. And of course, the officers almost never photograph, videotape or audiotape the DUI suspect so that jurors can later judge for themselves whether or not and to what extent these symptoms were present. 24

25 The officer rarely takes these innocent explanations into account. Your DUI defense lawyer must emphasize to the jury that the evidence is just as consistent with non-alcohol explanations as it is with intoxication. Speeding is not correlated with DUI In many DUI cases, the officer pulled the suspect over for speeding. And the officer alleges the suspect to be under the influence based (at least in part) on the fact that the suspect was speeding. But national studies demonstrate no correlation between speeding and intoxication. A speeding driver is no more likely to be drunk than sober. To be sure, speeding is often unsafe and a violation of the law in its own right, but it is not evidence that the driver is drunk. Breath testing machines often mistake other chemicals for alcohol Breath testing machines also detect non-alcohol compounds, which they frequently mistake for alcohol. Among the compounds most commonly mistaken for alcohol are ethylene, toluene, nitrous oxide, diethyl ether, acetonitrile and isopropanol. The presence of any of these compounds in your lung tissue will likely cause a false or falsely high blood alcohol reading. People frequently ingest these compounds at work or in other environments where the chemicals are commonly present. Breathing techniques may alter breath test results Most DUI breath test devices calibrate to test breath at 34 degrees Celsius. Simulator solutions use the same temperature. But when a suspect s breath temperature varies as is often the case this can produce a falsely high BAC result. Even a variation only one degree higher can produce a BAC reading 7% higher. A Disconnect may exist between your BAC reading and the symptoms of intoxication 25

26 Certain symptoms of intoxication can predictably be observed at each successively higher blood alcohol level. Often times a person s BAC reading comes back very high, as much as two or three times the legal limit. However, the person s driving; behavior and field sobriety test results were only slight impaired. In a case like this it is assumed that the BAC reading is wrong. The reading doesn t match the other evidence. This is called a disconnect case because the BAC reading does not jive with the rest of the evidence. Anytime that the alleged blood alcohol level does not match up with the symptoms you would expect to see at the presumed BAC level, the prosecution s whole case is called into question. Nondisclosure of expert witnesses If the prosecutor plans on calling on expert witness s to rebut your defense, the prosecution is required to disclose the state s expert witnesses to the defense prior to the trial date. Failure to do so can result in the prosecution s expert witness s testimony to be barred from being heard by the jury. Suspects right to a speedy trial You have the right to a speedy trial. What this means is that you must receive a trial within 120 to 160 days. Failure to be provided a speedy trial can result in the entire case being dismissed. Statue of Limitations has expired This would be an extremely rare case. A charge for misdemeanor DUI must be filed within a certain time period of the date of the offense or the entire case will be dismissed. 26

27 Not every one of the defense strategies listed above is going to apply in every case. After you have gone through and made a list of possible defense strategies that you feel might apply in your case, you are going to want to do some further research into each of them. Even though you have hired a DUI lawyer to represent you in court, you have hired an experienced DUI lawyer, haven t you? You are still going to want to do some further in depth research into each defense strategy so you know exactly how it might apply to your case. Don t make the mistake of leaving your entire defense to chance. Knowledge is power. There is no way I could provide you with a complete in depth analysis of each defense strategy listed here and how to successfully use the strategy in your defense. If I did, this book alone would be several thousand pages in length and cost a whole lot more. Not to mention, whatever I did present to you would not be perfectly tailored to your case, which is what your DUI lawyer is for. 27

28 Chapter 4 Officer Disciplinary Action & Character History Another item that you and your lawyer are going to want to review is the arresting officer s background. Just because he is an officer, doesn t mean he has a squeaky clean history. This may not seem like that big of a deal, but if your lawyer can show the jury that the officer has had disciplinary actions taken against him for say, lying, misrepresentation or violating the rights of a driver. Evidence like this can discredit the officer in the eyes of the jury. Also if the officer has given testimony previously about the reliability of tests, or how to administer them, that prior testimony can be used to challenge the officer s skills when administering the field sobriety tests. If your lawyer finds that the officer has been inconsistent in his testimony regarding testing from trial to trial or that his character is questionable, this can go a long way in helping your cause. Now as far as collecting all of the necessary information to conduct a full review of the arresting officer s personnel records can be a little tricky. This is definitely something your lawyer is going to need to do. Most police departments are going to have a form that can be submitted in order to request a specific officer s personnel file. The officer s personnel file will usually include basic personnel information about the officer such as: The officer s employment application Any promotions that he has received Performance evaluations Any accommodations he has received Specifics on any additional training Vehicle pursuits and crashes Some use of force situations And some disciplinary action reports 28

29 (Notice I said some disciplinary action reports, that is because certain disciplinary reports may be sealed as a way to hide certain information). This is going to vary from department to department as to what information they will actually place in the officer s personnel file. It will take the assistance of your lawyer in order to get a complete picture of the arresting officer s background. Some of the things your lawyer is going to be looking for are: Does the officer have a history of disciplinary problems? Does the officer have any character deviations that would affect his credibility? Is the arresting officer still employed by the same department and working in the same division? Has the officer received any special training that qualifies him to spot the signs of someone under the influence? What is the officer s DUI arrest record versus DUI conviction rate? Has the officer been properly trained to administer the standardized field sobriety tests? Has the officer worked for other police departments on or out of the state and did he receive any disciplinary actions? This list of items to look for in an officer s background is not all encompassing; it will vary depending upon the specifics of your case. 29

30 Chapter 5 Police Department Communication Records Police Dispatch Tapes The police dispatch tape is an audio recording of the communication between police dispatch and the officer in the field. When an officer is preparing to make a stop on a vehicle, the officer must report their intention to police dispatch. During the stop the officer is also going to keep police dispatch informed as to any imminent arrest they make. Each police department has their own guidelines as to how long they will retain the dispatch tapes. So it is very important that your lawyer request a copy of the dispatch tapes early in his or her investigation of your case. Failure by the police department to provide these recordings upon request from your lawyer may cause all or most of the evidence against you to be suppressed. Computer Aided Dispatch (CAD) Most police departments have automated systems that keep track of all incidents reported to the police and the actions taken by them. This automated system is called a Computer Aided Dispatch or (CAD). A CAD printout is the summary of an incident and it will include the date, time and type of incident. A CAD printout will detail the times in which officers were dispatched to an incident and the time they arrived on the scene. The CAD printout will not, however, include everything that you hear on the police dispatch tape. 30

31 Mobile Data Terminal Printouts (MDTs) Most police agencies have equipped their police cars with Mobile Data Terminals (computers). Officers are able to communicate with other officers and police dispatch through their MDT. Officers are also able to run a suspect s criminal history through the MDT. Once you have determined through the CAD printout, which officers responded to the scene, your lawyer will want to request a copy of the officer s MDT printout. Mobile Data Video (MVR) MVR is an audio and video recording from the camera that is inside the police car. The camera is usually automatically activated when a police officer activates the police lights. Once your lawyer has determined which officers responded to the scene, he can request a copy of their patrol car MVR(s). Once again a request for MVR copies should be made as soon as possible since each department will set time limits on how long this information is retained. 31

32 Chapter 6 Money Wins Cases It should come as no surprise to you that money is a vital factor to winning a high percentage of drunk driving cases in this country. The reason that money wins these cases is because when DUI lawyers have funds available to them for your defense it allows them to pursue all avenues of investigation, discovery and legal presentation. It should be noted that people who end up having a court appointed lawyer represent them in their DUI defense suffer some of the worst injustices because court-appointed lawyers are not allowed to provide equal justice to everyone. Although judges and prosecutors claim there are no limitations when representing the poor, they fail to reveal that court-appointed lawyers are often denied fees if they spend too much time pursuing justice in a case. In addition, most public defenders are over-worked, so they lack adequate time to litigate every possible issue. So if you are facing the above scenario where you have a public defender representing you in your DUI defense, remember that if you hope to have any chance of having the charges against you reduced, you are going to have to play a key role in your own defense. Hiring a DUI lawyer can have the same effects. If you do not have the financial means to allow your lawyer to pursue the various avenues of defense, then there will be limits to the level of justice you receive. If all you re going to do is find the cheapest lawyer you can to represent you in court and then you turn around and tell your lawyer that you don t want to spend any more money than you have to, you can expect to lose your case. This is definitely one time where the old saying of you get what you pay for, is certainly true. 32

33 When someone gets arrested on a drunk driving charge, one of the first things they start thinking about is the money (and for good reason, most of us have budgets and extra expenses like this don t fit into the budget). How much could my fines be? How much are the court appointed alcohol treatment classes going to be? (If you live in a state that requires these classes). How much income am I going to loose when I m in jail? The list goes on and on. Sound familiar? Cutting corners on your defense will most likely result in your receiving the maximum fines and penalties. I know that s not what you wanted to hear, but it is the cold hard truth. Lawyers know that the majority of people who come to them seeking representation cannot afford to pay their fees up front, that is why all lawyers will work with you on a payment plan. The courts also know this and will allow you to make payments on the fines they impose on you, just don t get into a situation where you stop making the payments, this opens whole new can of worms. Paying your fines needs to come before the little luxuries in life like going out to dinner or the movies. 33

34 Summary Ultimately the key to winning any drunk driving case is information. It is not necessary to twist testimony into a pretzel or establish that the officer is lying, nor is it essential to have verifiable proof of sobriety. Your defense lawyer does not have to argue that the drunk driving laws should be abolished because they are unfair, or that chemical testing is inaccurate. Yours and your attorney s goal is to provide competent, credible information so the jury can see both sides of the story often two believable versions yet feel compelled to vote for an acquittal because reasonable doubt was created through conflicting evidence. You need to work closely with your lawyer on your case and be aware of what is going on, this is your future we are talking about here. Start right here, right now. Grab a notebook and create your journal, if you don t have a spiral bound notebook, go to the store and pick one up, they re only a couple of bucks at Wal-mart. As you create your journal, read through this guide again and start thinking about the different defense strategies we discussed and write down which ones you think might apply in your case and start learning as much as you can about those strategies. Nothing says I am serious about beating my drunk driving charge more than for you to walk into a potential lawyer s office to interview him or her to possible represent you in your defense, sitting down and being able to intelligently discuss the possible defense strategies that you ve already though about. Not to mention that a potential lawyer is less likely to try and pull the wool over your eyes knowing that you have done your homework. Knowledge Is Power! 34