If you have been charged with a DUI or DWI, you should be aware of all potential defenses available to you so that you can help your DUI attorney understand what went on at the time of the arrest and he or she can build the best possible strategy to help you reduce or even completely beat your charges.
What’s supposed to happen if you are pulled over for a DUI? First, the traffic stop and arrest has to be made properly. That means there needs to be probable cause, no basis of entrapment, and your Miranda Rights must be read to you. Otherwise, you may be able to get the charges dropped or dismissed – at the very least, it will work to weaken the prosecution’s case against you.
This is good news, because in any criminal case the burden of proof falls on the prosecution. To get a DUI conviction, they must prove two main things: (1) That you were driving the vehicle, and (2) That you were under under the influence of drugs and/or alcohol while driving, such that your ability to drive safely was impaired. Further, the evidence must be collected and handled properly.
So, what defense strategies are available to you to help you cast doubt on your DUI charge?
Defenses Related to the Arrest
No Probable Cause
As mentioned above, the officer must have probable cause to stop your vehicle and arrest you for any evidence acquired at the time of the arrest to be admissible in court. If the officer made the stop based upon racial profiling or some factor other than erratic driving or you appearing to be intoxicated, there was no probable cause and your attorney may be able to challenge the arrest.
No Miranda Warning
Otherwise known as “reading your rights,” these are the warnings that you hear on TV – your right to remain silent, that anything you say can be used against you, your right to an attorney, and so on. If these are not read to you or are read incorrectly, certain evidence may not be admissible.
The Officer’s Testimony of Your Behavior
The officer’s testimony of your behavior at the time of the arrest is generally a big component of the prosecution’s case. This usually includes:
- The way that you were driving: uneven speeds, weaving, not heeding traffic signals or signs
- Your appearance or behavior after you were stopped: slurred speech, staggering, bloodshot eyes, confusion
- Performance in field sobriety tests
If you offer reasonable alternative explanations for your appearance or behavior, such as physical impairments, legal medications you take, fatigue, or other medical conditions, you may be able to counter the officer’s assertion that you were intoxicated. Further, if field sobriety tests were improperly administered, this evidence is not admissible.
Witnesses that saw things differently may also be able to testify that the officer’s observations were not consistent with their own. They may also be able to testify that you did not use drugs or alcohol prior to driving, or that any erratic driving was due to distraction rather than intoxication.
This defense isn’t as common, but if you can provide evidence that the officer encouraged you to become intoxicated or observed that you were intoxicated and encouraged you to drive, this is entrapment.
Defenses Related to Breath, Blood, Urine, and Saliva Tests
In Illinois, a blood-alcohol concentration (BAC) of 0.08% or higher is considered to be legally drunk, such that it is illegal for you to drive. If your BAC is between 0.05% and 0.08%, you may still be charged with a DUI if your driving or behavior is suggestive of intoxication. It is also illegal to drive under the influence of any amount of illicit substances such as marijuana, but we’ll focus mainly on alcohol in this section.
Typically the BAC is determined by chemical tests of your breath, blood, urine, or saliva. These results are a big part of the prosecution’s case, and if you’re able to challenge the accuracy of these results, it knocks a big hole in the case.
Consent to Testing
Prior to chemical testing, you must provide consent unless you have been involved in an injurious accident. If you do not consent, your license will be suspended and you may still face a DUI or DWI charge. If you did not give consent but were tested anyway, you may be able to dispute the results.
Accuracy of Test Results
You may be able to challenge the accuracy of your test results, but this generally requires expert testimony. A few things that may compromise the accuracy of test results include:
- Consumption of certain foods or drinks that can lead to a false positive.
- Non-impairing medications that can lead to a false positive.
- Breathalyzer tests administered during the absorption phase, when the alcohol was not completely absorbed in your body.
- Improper administration of chemical testing, particularly portable breathalyzer tests.
- Vomiting or indigestion that may affect the results of breathalyzer tests.
- Rising BAC: The BAC could be below the legal limit while the defendant was driving, but have risen to above the legal limit by the time test was administered.
Custody chain of Blood, Urine, or Saliva Test
Any samples collected for testing – including blood, urine or saliva – must be handled properly in the chain of custody, including a properly documented chain of custody form. Any mishandling, including mislabeling of samples or deliberate tampering, makes these test results inadmissible.
Defenses Related to “Driving”
In most DUI or DWI cases, the driver is pulled over while driving, so there isn’t much argument as to whether the defendant was actually driving at the time of the offense. However, if the officer approached a parked car while you were behind the wheel, he or she did not actually witness you driving.
This is a bit of a long shot, but in some rare cases the passenger and driver can switch places when pulled over, if the original driver believed that the passenger (defendant) was sober and thus could pass a sobriety test.
If you or someone you know has been charged with a DUI or DWI, it’s important to be aware of your or the defendant’s rights. These are just a few of the defense strategies that could be used. Reach out to an experienced defense attorney with expertise to make sure that your rights are protected.
About the Author:
Andrew M. Weisberg is a former felony prosecutor who now serves as a defense attorney in the greater Chicago area. He has extensive experience in handling all types of criminal cases, from sex offenses and domestic violence to retail theft-related crimes, murder, and drug crimes.