If you wish to try the cause, we
will try it before the jury. The jury will either render a not guilty
verdict or guilty if the government proves their case beyond a
reasonable doubt. If found guilty, punishment is usually assessed in
the same manner as a straight up plea. If you are found not guilty,
you are entitled to have your criminal records expunged. All
documents relating to your arrest will be destroyed. 9. Expungement
of Criminal Records.
MEDICAL DEFENSES THAT WIN
The defense of a DUI case requires knowledge about physics, chemistry, biology, anatomy, toxicology, pharmacology and how these scientific disciplines interrelate. Chemical testing for blood alcohol levels assumes that the subject is a normal, healthy average person. There are countless medical conditions which can effect the accuracy of chemical testing and the appropriateness of field sobriety exercises. The following are examples:
Periodontal (Gum) Disease
Dentures
Faulty Bridge Work
Gastric Reflux Disease (Heartburn)
Flu
Fever
Pre-Menstrual/Menstrual
Diseases of the Lungs
Heart Disease
Accidents With Air Bags
Diabetes
Inner Ear Conditions
Attention Deficit Disorder
Pre-Existing Injuries To Back, Legs, Etc.
Blood Alcohol Content in Maryland
What does BAC stand for?
BAC stands for Blood Alcohol Content or Concentration. First, here are some quick facts about alcohol.
Alcohol (ethanol) is a powerful, mind-altering chemical, no matter what form it is in--beer, wine, or liquor. Because alcohol consumption is so common in our culture, we often forget that it is a drug that the body treats as a toxin--a poison. It is a depressant that is absorbed into the bloodstream through your stomach and intestinal lining (remember, it is not digested like food) and is transmitted to all parts of the body.
When alcohol reaches the brain, it affects the control centers resulting in poor judgment, slower reflexes, blurred vision and problems with coordination. Your liver processes alcohol out of your system at an average rate of about 1.5 ounces of 80 proof alcohol an hour. Nothing you can do will speed this process up...not exercising, vomiting, or drinking 3 shots of espresso.
Drinking faster than your body can process alcohol causes intoxication (literally alcohol poisoning).
A "drink" is defined as one 12-ounce glass of beer, one 5-ounce glass of wine or 1.5 ounces of 80 proof liquor (“proof” is double the actual percentage of alcohol content, so 80 proof liquor is 40% alcohol). Lately, there has been a lot of talk about binge drinking (5 or more drinks in a row for men, 4 or more for women)
Most people are intoxicated if they binge drink. Now you may be saying to yourself, I'm not really drunk after five drinks. Well, remember, intoxication is caused by the amount of alcohol is your bloodstream or your blood alcohol content (BAC). And yes, it does measure how drunk a person is by telling us how much alcohol is in the bloodstream.
The fact is that your BAC is probably higher than you realize after five drinks. However, most people don't know their BAC when they are drinking, but they do know their body's tolerance level to alcohol. The fact that our body can develop a tolerance to alcohol complicates how we judge alcohol's affect on our bodies.
Also, since alcohol affects our judgment processes, it is hard for us to be accurate about our level of intoxication.
Effect of a Breath or Blood Test in Maryland (after October 1, 2001)
In Maryland, the approved breath-testing device is currently the Intoximeter EC/IR.
It is intended to give a measurement of deep lung air in grams of alcohol (a weight) per 210 liters of breath (a volume). For blood tests the result is measured in grams of alcohol per 100 milliliters of blood.
The test results have legal significance. If the result is .08 or more the driver is per se under the influence (DUI – Driving Under the Influence).
If the test result is .07 or more, but less than .08, it is considered prima facie evidence the driver is impaired (DWI – Driving While Impaired) by alcohol.
If the test result is more than .05 but less than .07, the test evidence is considered neutral.
If the test result is .05 or less, the driver is presumed not to be under the influence of alcohol.
For the driver who is under 21 years of age, the legal limit is .02. The driver may lose their driver's license or privilege for 6 months and be fined. It is important to consult with a lawyer to gain a further understanding of the ramifications of these tests.
DUI Defined
DUI (Driving Under the Influence), commonly known as drunk driving, is legally defined as driving a motor vehicle on a road or highway while under the influence of an intoxicating substance. It is a simple law, with a surprisingly large gray area of actual DUI culpability.
The primary determining factors of DUI are whether the defendant was driving, whether what he was driving was a motor vehicle, whether he/she was on the road, and most importantly whether he/she was intoxicated. While some are more easily determined than others, the most vital question appears to be whether the defendant was actually intoxicated. This issue is at the core of the argument and presents the biggest challenge in dealing with the DUI statute.
Recently, new DUI statutes have been enacted to avoid this complicated intoxication issue. These statutes augment the law by not requiring a demonstration that the defendant was under the influence. Instead, the proof rests on a mere reading of a machine to determine the culpability of a suspected DUI driver. These statutes, often referred to as per se, define DUI as driving a motor vehicle on a road or highway with a blood alcohol level of approximately .1. The actual legal blood alcohol level varies from state to state.
Under Influence Defined
DUI cases always turn on the issue of whether the defendant was under the influence of alcohol or drugs when operating or driving the vehicle. This argument tends to be crucial only because it is meant to indicate that the defendant has consumed so much alcohol or other drugs that he/she is incapable of operating the vehicle in a manner like that of an ordinary prudent driver under similar conditions who is operating the vehicle in a reasonable manner.
The extent of impairment or intoxication needed to satisfy the requirement of the DUI statute depends on the state. Within each state, the court rulings vary accordingly. The terms used in the statutes also vary, but regardless of the language used, the prosecution must show that the defendant was not in compliance of the DUI law when driving the vehicle and the influence of alcohol or drugs was so immense as to make him/her a danger to others in the public.
To establish evidence in the case, the prosecution commonly relies on testimony of witnesses, including police officers, indicating a variety of symptoms including mental and physical that the witness observed. Typically symptoms are revealed to the witness or the arresting officer through conversations and sobriety tests performed on the scene or observing the defendant driving in a manner indicating lack of control.
Observance of these symptoms is clearly subjective and thus possibly flawed in their prosecutorial effectiveness with DUI cases. To avoid this controversial issue, the DUI offense is often prosecuted under a per se statute, where the term "under the influence" is reduced to driving with blood alcohol level of about .08 to .1 based on the statute.
These types of statutes remove the problematic requirement of establishing a DUI defendant's "under the influence" culpability via witnesses' testimony, and replace it with a more easily proven scientific test. In these types of DUI cases, the evidence is limited to the result of some chemical tests performed on the DUI defendant showing that their blood alcohol level was over the legal limit.
Prosecutors strive to show that the blood alcohol limit was over the legal limit to create a presumption that the defendant drove under the influence of alcohol. Thus, the burden shifts to the defendant to prove he/she was not under the influence of alcohol. A common approach is to prove the device or method used to administer the DUI blood alcohol test was inaccurate or faulty. The defendant is also allowed to introduce evidence, such as his/her own testimony, testimony of other witnesses and chemical tests performed by him/herself that rebut the presumption of being under the influence of alcohol by having an alcohol level above legal limit.
Sobriety Checkpoints
Although cumbersome, sobriety checkpoints are one of law enforcement personnel's most direct methods of monitoring for DUI offenders, as well as checking drivers' licenses and vehicle registrations. States randomly use them, but most especially on peak celebratory holidays such as New Year's Eve. Furthermore, because some courts and licensing authorities now issue restricted licenses to offenders, roadside checks allow officers to monitor compliance with court-ordered and statutory restrictions.
The primary purpose of DUI sobriety checkpoints is to promote the safety on the road for the general public and protect possible DUI offenders from the consequences of their own actions. Sobriety checkpoints appear to have become a favorite of law enforcement officials as they have increased in frequency on many public roads.
Sobriety checkpoints teeter on a delicate precipice between legitimate public safety and infringement upon a citizen's Fourth Amendment protection against unreasonable search and seizure. The issues that weighed in this precarious balance include the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest and the severity of the interference with individual liberty. Many states consider sobriety checkpoints constitutionally valid, while others do not.
When a sobriety checkpoint is approved, courts generally find that it was conducted for the purpose of verifying compliance with DUI laws, and are thus a valid exercise of police power.
There are certain caveats in place, however. An officer who mans a sobriety checkpoint may not frisk a suspect as DUI offenses merely involve a possibly inhibited driver and not an actual weapon that would be found on a person. In fact, at court, if a frisk was performed, the officer must offer a factual basis for his suspicion that the driver was armed and dangerous.
Field Sobriety Testing
The Standardized Field Sobriety Test (SFST) is a series of three tests administered and evaluated in a standardized manner to obtain valid indicators of impairment and establish probable cause for arrest. These tests were developed as a result of research sponsored by the National Highway Traffic Safety Administration (NHTSA). A formal program of training was developed and is available through NHTSA to help police officers become more skillful at detecting DUI suspects, describing the behavior of these suspects and presenting effective testimony in court. Formal administration and accreditation of the program is provided through IACP. The three tests of the SFST are:
" the horizontal gaze nystagmus (HGN)
" the walk-and-turn
" the one-leg stand
These tests should be administered systematically and objectively evaluated according to measured responses of the suspect.
a. HGN Testing
Horizontal gaze nystagmus is an involuntary jerking of the eyeball which occurs naturally as the eyes gaze to the side. Under normal circumstances, nystagmus occurs when the eyes are rotated at high peripheral angles. However, when a person is impaired by alcohol, nystagmus is exaggerated and may occur at lesser angles. An alcohol-impaired person will also often have difficulty smoothly tracking a moving object. In the HGN test, the officer observes the eyes of a suspect as the suspect follows a slowly moving object such as a pen or small flashlight, horizontally with his eyes.
The examiner looks for three indicators of impairment in each eye: 1) if the eye cannot follow a moving object smoothly, 2) if jerking is distinct when the eye is at maximum deviation, and 3) if the angle of onset of jerking is within 45 degrees of center. If, between the two eyes, four or more clues appear, the suspect likely has a BAC of 0.10 or greater. NHTSA research indicates that this test allows proper classification of approximately 77 percent of suspects. HGN may also indicate consumption of seizure medications, phencyclidine and a variety of inhalants, barbiturates and other depressants.
b. Divided Attention Testing
The walk-and-turn test and one-leg stand test are "divided attention" tests that are easily performed by most sober people. They require a suspect to listen to and follow instructions while performing simple physical movements. This test is based on the fact that impaired persons have difficulty with tasks requiring their attention to be divided between simple mental and physical exercises.
c. Walk and Turn Test
In the walk-and-turn test, the subject is directed to take nine steps, heel-to-toe, along a straight line. After taking the steps, the suspect must turn on one foot and return in the same manner in the opposite direction. The examiner looks for seven indicators of impairment: 1) if the suspect cannot keep balance while listening to the instructions, 2) begins before the instructions are finished, 3) stops while walking to regain balance, 4) does not touch heel-to-toe, 5) uses arms to balance, 6) loses balance while turning, or 7) takes an incorrect number of steps. NHTSA research indicates that 68 percent of individuals who exhibit two or more indicators in the performance of the test will have a BAC of 0.10 or greater.
d. One-leg Stand Test
In the one-leg stand test, the suspect is instructed to stand with one foot approximately six inches off the ground and count aloud by thousands (One thousand-one, one thousand-two, etc.) until told to put the foot down. The officer times the subject for 30 seconds. The officer looks for four indicators of impairment, including 1) swaying while balancing, 2) using arms to balance, 3) hopping to maintain balance and 4) putting their foot down. NHTSA research indicates that 65 percent of individuals who exhibit two or more such indicators in the performance of the test will have a BAC of 0.10 or greater.
The effectiveness of SFST in court testimony and evidence depends upon the cumulative total of impairment indicators provided by the three-test battery. The greater the number of indicators, the more convincing the testimony. Because SFST is administered according to national standards and is supported by significant research, it has greater credibility than mere subjective testimony.
e. Alternative Testing Methods
Occasionally, certain suspects such as physically disabled persons are unable to perform the SFST and alternative testing methods must be employed. In such cases, some other battery of tests such as counting aloud, reciting the alphabet or finger dexterity tests may be administered. Several appellate court decisions have indicated that, if you administer a test that requires the subject to respond orally in other than a routine information-giving fashion, such as requiring them to indicate the date of their sixth birthday, and if they are in custody at the time, you should administer the Miranda warning first, because the officer is seeking information that is testimonial in nature.
Implied Consent
Under an implied consent law, any person who operates a motor vehicle in the state is deemed to have consented to a DUI chemical test. The implied consent law serves as a means for gathering evidence against a DUI defendant. Although the implied consent law is legal, it fails to mask the law's foundational fallacy that a driver's presence on a state's highway indicates an agreement to submit to a chemical test for drugs or alcohol upon the lawful request of a police officer.
National DUI laws operate under the mistaken belief that revocation keeps DUI offenders from driving and thus is the most effective method of discouraging DUI offenders. This belief ignores the reality that revocation does not keep DUI offenders from driving. It only succeeds in taking the DUI offenders ability to drive legally.
Currently, the federal government funds grants to states that implement certain DUI prevention programs. As a direct result, many states have implemented summary driver's license suspension systems into their implied consent statutes for both failure of a chemical test and refusal to take a test. Under the guise of justice and public safety, states have managed to circumvent a suspected DUI offender's constitutional rights and legally discourage refusal of chemical testing.
DUI lawyers strive to remind courts that the Fourth Amendment of the United States Constitution states that, "the right of the people to be secure against unreasonable searches and seizures, shall not be violated." Although valid arguments have been raised regarding this right in DUI cases, such arguments have been repeatedly rejected.
Furthermore, the Fifth Amendment of the United States Constitution states that "no person . . . shall be compelled in any criminal case to be a witness against himself." Again DUI lawyers have tried to point out the clear error DUI implied consent laws make in violating a motorist's Fifth Amendment privilege against self-incrimination, without much success. Fifth Amendment challenges have been brought in many cases, such as when a DUI suspect submitted to a chemical test or refused chemical testing.
One state statute made refusing to take a blood alcohol test a criminal misdemeanor on the grounds that the privilege protects an accused only from being compelled to testify against himself or otherwise provide the State with evidence of a testimonial or communicative nature, and that the withdrawal of blood and use of the analysis in question in a DUI case does not involve compulsion to these ends. The Fifth Amendment should have protected the DUI defendant in this case, but the court wouldn't allow it.
The Sixth Amendment of the US Constitution mandates a right to counsel in any criminal proceeding. The United States Supreme Court has ruled that the criminal right to appointed counsel attaches only in criminal proceedings that result in actual imprisonment. This means that any claim asserting a right to appointed counsel in an implied consent proceeding must therefore be based on the assertion that such a proceeding is sufficiently similar to a criminal DUI drinking/driving proceeding to warrant the appointment or assistance of counsel. DUI lawyers have persistently argued that the state constitutional right to counsel as well as the statutory right to counsel under an implied consent law is limited at best.
Most states require a police officer that invokes the implied consent statute to provide the DUI suspect with some form of warning or advisory. In this situation, DUI lawyers have argued that a refusal to submit to the test prior to knowledge of the consequences of that refusal should not be allowed to provide a basis for the suspension of the driver's license.
This prior-knowledge of the consequences of refusal is important since most states have enacted some form of implied consent law that requires license revocation upon refusal to submit to chemical testing. Some states require detailed and specific warnings while others remain silent on the issue.
Courts are generally reluctant to go beyond what the legislature has provided in an implied consent statute and in states where no warning regarding the consequences of refusing the test is required, courts have held that failure to give one is not fatal to the refusal charge. However, where an implied consent statute does require a specific warning, DUI lawyers who have challenged the penalty resulting from a refusal have been successful. If the consequences of a refusal are serious enough, courts do compel strict adherence to warning requirements.
Naturally, the consequences of refusal hinge on whether the DUI suspect submits to or refuses chemical testing. In cases where DUI suspects submit to chemical testing without being fully informed of how the test results may be used against them, the courts are split as to whether these results should be suppressed. Historically, this argument has gone both ways.
Whether the motorist was advised of the ability to choose which test would be taken as well as all of the possible tests that could be taken, has been the center of much dispute regarding provisions of implied consent statutes. In many situations the implied consent statute will specify which tests are available and who is responsible for selecting the test. However, some states have modified their statutes, thus making the issues surrounding these requirements more complex. As a general rule, there is no requirement that the motorist be offered a choice of tests.
Implied consent legislation has increasingly adopted the automatic administrative license revocation for failing a chemical test. In these jurisdictions the prosecution need prove only that a motorist had a specified blood or breath alcohol level to impose the license revocation. State legislature has recognized the obvious conflict of interest a DUI suspect may have in choosing to take the test. Thus the duration of the license suspension imposed for failing the chemical test is usually shorter than the suspension imposed for refusing a chemical test.
Driving Defined
Driving is the initial requirement for prosecution under a DUI offense and is defined under two major categories: "driving" or "operating" and exercising some type of control over the vehicle even though it is not moving.
Some court decisions have defined control to mean a domination or regulation of a vehicle. This applies as long as the person is keeping the vehicle restrained or is in the position to regulate its movements and the engine is truly running. Although arguably if the vehicle is not moving, the person is not actually driving, courts have determined that actual physical control does include a person sitting in a motionless vehicle with the engine running. In fact, other decisions have upheld convictions and license suspensions where the person was sitting in a vehicle with the engine not running.
Still, in many jurisdictions a person is considered to have been "driving" only if the person steered or exercised control over the vehicle while it was in motion. Even if the engine is not running, courts have determined that a vehicle's operability is irrelevant and steering a towed vehicle does in fact constitute driving.
If the defendant is not observed driving it may be shown using certain evidence that the defendant drove the vehicle to its present position. A prime example of this circumstance is a single vehicle accident. While the defendant may not be in actual physical control, operating, etc., of the vehicle, circumstances may be such that he drove or controlled the vehicle prior to the crash.
Ultimately, various courts have established diverse decisions on the DUI driving element. To prove the DUI driving element, some require the vehicle to be in motion, while others have found that motion is not necessary if the engine is running. It has even been held that sleeping in a vehicle with the engine running constitutes the element of driving.
If the officer does not directly observe the driving element, the prosecution must use statements made by the DUI defendant linking him to the driving. This is generally the case when the officer arrives at the scene of a crash and the vehicle is not drivable.
Culpability does not always end with the driver of the vehicle. Some statues extend the element of control to one who owns or is in custody of the vehicle if the owner allows a person under the influence of intoxicating liquor or with a blood alcohol level reaching .08 or 0.10 percent or greater blood alcohol content, to operate the vehicle. As long as the owner or individual in custody of the vehicle knows or reasonably should know the driver is under the influence of intoxicating liquor or had an illegal blood alcohol level, he or she is in violation of the statute.
Regardless of the term used in the statute or the language used in the court decision, every time a driver is driving a vehicle on a road or highway, it is held that the driver is "driving," "operating," and "in control" of the vehicle.
Only when a vehicle is not involved in actual in-motion driving, may the defendant raise the issue of whether he was "driving" or "in control" of the vehicle. Courts have developed a list of factors to determine whether the defendant was driving a vehicle that is found motionless:
1- Was the defendant conscious or unconscious?
2- Was the defendant asleep or awake?
3- Was it day or night?
4- Was the defendant trying to move the vehicle?
5- Was the defendant parked on private property or on a public road?
6- Was the defendant in the driver seat?
7- Were there other occupants in the vehicle?
8- Were the headlights on or off?
9- Were the windows up or down?
10- Was the defendant capable of driving the vehicle?
Essentially, the courts have held that while a defendant may be in control of a vehicle and capable of driving it, he/she is not driving it if he/she pulls the vehicle over to the side of the road to avoid driving under the influence. It seems courts have been more compassionate when defendants have shown evidence of taking action to sober up and avoid a dangerous DUI situation.
Vehicle Defined
Inherently, every DUI statute prohibits a person from driving or being in actual physical control of a vehicle. The problem arises where the law fails to provide the type of devices that it intends to be covered or fails to define the terms that are used in the statute. Ultimately, because the statute is not specific enough, the final determination is left up to the courts.
Most DUI statutes use the terms "vehicle" and "motor vehicle". The Uniform Vehicle Code uses the term "vehicle". Obviously, the term "vehicle" is broader in scope than motor vehicle. For example, one court rejected an argument that the defendant's automobile was not a vehicle since it was stuck in the mud it did not have the ability or capacity to transport. Some statutes define a vehicle as a device to transport people; hence a road roller was not considered a vehicle.
Still, courts have determined that most devices with a motor satisfy the "vehicle" definition. Golf carts and farm tractors have been held to be vehicles even though they do not strictly transport people. On the other hand, bicycles, horses and snowmobiles have been held to be vehicles in some states, but not others.
Whether a vehicle is operable may also decide the outcome of a case. As a general rule, when a vehicle is incapable of operation, it is held not to be a vehicle for purposes of the DUI statute. A conviction was reversed where it was undisputed that the car in which the defendant was sitting was inoperable due to mechanical problems. Though an easy out, a vehicle's inoperability is not always a guarantee. In one case a conviction was upheld even though the vehicle was out of gas but near a gas station. The court held that the situation made it "reasonably capable of operation."
DMV's Role in DUI
Laws in most states dictate that the drivers license of a DUI arrestee may be automatically revoked or suspended. Operating on the theory that driving is a privilege, not a right, allows government agencies to impede due process requirements and exercise limitations upon this privilege by revoking or suspending either the license to drive or the privilege to drive.
Actual possession of a valid drivers license at the DUI arrestee's time of suspension may not protect them from suspension of driving privileges. However, as a result of the judicial nature of our legal system, due process requires a hearing to determine whether sufficient cause exists to revoke or suspend a license to drive.
A trial judge's authority to prohibit driving privileges stands independent of the DMV's power to grant, revoke or suspend licenses. Technically, while a trial judge is authorized to prohibit a person convicted of a DUI offense from driving, the court is not authorized to revoke the defendant's license. That is solely the DMV's power.
In describing DUI penalties, some state statutes blur the distinction for an implied consent violation. They appear to grant authority to the trial judge to suspend licenses, when in fact the court does not have that power. Courts can only prohibit driving and may not actually suspend a license. Regardless of this distinction, once the court orders the defendant not to drive, the defendant is subject to being held in contempt of court if he drives without an approved restricted license.
Due to the confusion created over this issue, it is unclear whether a law enforcement officer may legally seize the license of a DUI offender as the result of a rules-of-the-road violation. Most states have statutes stating that the DMV is authorized to suspend the license of an operator or chauffeur upon sufficient evidence that the licensee has committed an offense for which mandatory revocation of license is required upon conviction. While this may be the case, no municipal law enforcement officer is authorized to seize the license of an operator or chauffeur for a traffic offense in violation of a municipal ordinance or a rules-of-the-road violation.
Speed Measurement
Speeding is always an essential part of evidence before the court in a DUI case. Police departments currently use four primary speed measurement devices: 1) speedometer clocks, 2) radar, 3) average speed computers and 4) LIDAR (Light Detection and Ranging). Two additional types used to a lesser extent are 1) aircraft and 2) photo radar. Each method has its own advantages and disadvantages.
a. Speedometer Clocks
Speedometer clocks have gradually been replaced by more technologically advanced methods, but they are still the least expensive method of clocking speeders and can be extremely effective. The patrol car speedometer is used to pace vehicles. The most important component of this method is an accurate speedometer that is factory certified.
A speedometer can be calibrated several ways: via the fifth wheel attached to the rear of the vehicle; using a stopwatch that has been certified to clock the patrol car over a measured course; or using a dynamometer, which allows the patrol vehicle wheels to rotate in place while the speedometer is checked against the device for discrepancy. While the first two are both effective and inexpensive, the latter, using a discrepancy device, is arguably the best method as well as the most expensive.
b. RADAR
An acronym for "Radio Detection And Ranging," radar involves the transmission of electromagnetic waves that reflect off a moving object. When the wave is reflected, it changes frequency and is interpreted by the radar unit in a speed calculation. This change is referred to as the Doppler effect or Doppler shift. In the simplest terms, the Doppler effect explains how as a sound gets closer to a person, it gets louder. For example, consider the sound a passing car makes as it approaches you then moves away. Radar may be used in both moving and stationary modes.
This is the most popular technology for speed enforcement as evidence by the variety of radar detectors on the consumer market. These devices emit a beeping sound when radar waves are detected, warning drivers of approaching police officers. Despite its popularity, radar use is in litigation across the country due to health concerns regarding cancer risk as a result from frequent use of the radar devices. All recent evidence indicates these claims are groundless, but litigation is still pending. Since most cancer studies involve longitudinal research, 20 or more years may pass before scientists lay this issue to rest.
c. Average Speed Computers
An average speed computer is a device that uses a programmed computer to measure speed by dividing the distance traveled by the time it took to travel the distance. They are typically mounted in police patrol cars and can be used in both a moving and stationary mode.
Whereas radar and LIDAR devices are primarily used to measure maximum speed, average speed computers measure average speed over a specified distance. The advantage these have over radar devices is that they do not use electro-magnetic waves, and thus are undetectable by radar detectors.
d. LIDAR
On of the more recent devices used in law enforcement for speed measurement is laser or LIDAR (Light Detection And Ranging). LIDAR devices use an infrared light wave emitted at frequencies that allow the beam to be focused into an extremely narrow target area. The devices are usually operated in the hand-held mode. Although they can be used through the glass it reduces the device's range; therefore, an open window or exterior use is preferred.
LIDAR has become more popular with the frequency of consumer's radar detectors. Detection of laser beams is possible but the devices that detect laser beams are limited in their effectiveness. This is due to the fact that when the device intercepts the laser beam, this corresponds to the clocking of the vehicle with the LIDAR device.
In addition, most LIDAR devices are mounted inside the vehicle, further limiting their detection by another device. The theory behind laser technology is that speed is calculated by dividing the distance by the time of the light pulses of the laser (S=D/T of light pulses).
e. Aircraft
This method of speed enforcement uses the combination of ground-based units and a fixed wing airplane. This method of enforcement is based on the formula Speed = Distance/Time.
Law enforcement uses painted lines on the pavement to identify a measured course. Then as vehicles travel on the measured course, a stopwatch is activated in the airplane. Once the course is completed, the speed is calculated and, if the vehicle was speeding, the description is broadcast to the ground units. The vehicle is pulled over and the vehicle and speed are verified.
It is for this reason truckers will commonly warn fellow truckers via radio of hovering law enforcement. The aircraft, typically the high-wing design that allows an unobstructed view of the ground, can also be used for marijuana eradication activities, emergency transport, traffic monitoring, surveillance and other law enforcement programs.
f. Photo Radar
An extension of traditional radar devices, this technology uses photography to capture the vehicle and license plate when the violation occurs. The date, time and speed can be superimposed onto the photograph. Some devices are so accurate that they can also capture the driver's image in the picture.
Photo radar can be used in manned or unmanned applications such as those devices installed in lights at busy intersections. It is commonly used in jurisdictions where specific legislation permits its use and where vehicles have both front and rear plates.
g. Drone Radar
Drone radar is essentially an unmanned radar station that purposefully triggers motorists' radar detectors. When the detector alarms sound, it is presumed that drivers will slow their vehicles wary of a police officer that is not actually there.
These units can be mounted in moving vehicles, concealed in highway signs, or installed in highway work vehicles and any variety of other locations. The FCC and NHTSA have regulations that must be met in order to use this method of speed enforcement. As motorists catch on, overuse of this method will reduce its effectiveness.
Refusal to Test
Once a DUI suspect has been asked to submit to chemical testing, any decision, whether to submit or not to submit to the tests, can have both civil and criminal ramifications. Refusing to take the test raises several issues in a criminal DUI case including admissibility of the refusal as evidence, refusal to take the test as a crime itself and using the refusal for enhancement purposes.
When prosecuting DUI cases involving alcohol, the state frequently relies on chemical test results to prove the DUI defendant's guilt. If the DUI defendant refused to submit to chemical testing, the prosecutor will attempt to introduce evidence of that refusal and induce the court to prematurely conclude that the DUI defendant knew he would fail the test; hence he/she is guilty of DUI. In these cases, a DUI lawyer should be prepared to aggressively argue this point.
Some state statutes are prepared for this dilemma and detail the admissibility of an individual's refusal to submit to a blood alcohol test. The language of one statute specifies, "If a person under arrest refuses to submit to a chemical test, evidence of refusal shall be admissible in any civil or criminal action or proceeding arising out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle while under the influence of alcohol or drugs."
Although statutory language may provide for the admission of refusal evidence, and the U.S. Supreme Court has upheld the constitutionality of such provisions, state courts may limit the application of such a statute based on the language of the state constitution or judicial interpretation of the state's statutory DUI scheme. One court has restricted admission of refusal evidence to situations in which the DUI defendant denies being given the opportunity to take a chemical test, claims that results of the test taken were exculpatory, challenges the competency of the testing or challenges the credibility of the officer.
Compliance with the qualifying provisions of the statute providing for the admission of refusal evidence may be required. For example, a statute may permit the prosecution to introduce evidence of the DUI defendant's refusal to submit to chemical testing at trial, provided the defendant was advised of the consequences of refusal. If the warning was not given, the refusal evidence would be inadmissible. Frequently, the admissibility of refusal evidence will be dependent on compliance with the state's implied consent statute.
The admissibility of refusal evidence in a criminal proceeding for a DUI drinking/driving violation may have an impact on the individual's constitutional privilege against self-incrimination and right to due process. The discussion of whether the admission of refusal evidence constitutes a violation of the provision against self-incrimination focuses on two aspects of refusal evidence: 1) the classification of refusal evidence as testimonial or physical in nature and 2) determination of the coercive or voluntary nature of refusal. Due process considerations center on the involuntary testing of an individual following a refusal.
The bottom line for this issue may be concluded as follows. A driver who has been arrested for a DUI drinking/driving offense has the "choice" of submitting to a blood alcohol test, which may yield incriminating results, or refusing the test with the consequences of license revocation and the admission of that refusal as evidence in the criminal trial.
The Fifth Amendment of the U.S. Constitution provides that no individual "shall be compelled in any criminal case to be a witness against himself." The leading U.S. Supreme Court case on the issue ruled that the admission of an individual's refusal to submit to a blood alcohol test does not violate the Fifth Amendment privilege against self-incrimination applied to the states by the Fourteenth Amendment.
This opinion took the position that a refusal to submit to a blood alcohol test is not the type of compelled testimonial evidence protected by the Fifth Amendment. The protection against self-incrimination does not extend to all forms of evidence, which may be provided by the individual to the state. Rather, the Fifth Amendment privilege only protects the individual from being compelled to provide evidence of a testimonial or communicative nature.
As stated previously, the results of the blood alcohol test are considered real or physical evidence, and as such do not receive protection under the Fifth Amendment. Simply put, as the results of the test are not constitutionally protected evidence, refusal to submit to a blood alcohol test is not a constitutionally protected right. Furthermore, statutory language that permits a refusal does not establish a right to refuse a blood alcohol test when requested following arrest for a DUI drinking/driving violation. Such language merely covers a contingency when the cooperation of the individual is not forthcoming.
Although the Fifth Amendment does not protect the actual test results, additional statements made at the moment of refusal may be protected, as they could be considered testimonial or communicative in nature. In states where there is no specific statutory obligation to take the tests, the DUI defendant's lawyer could successfully stop the defendant's refusal to submit to field sobriety testing from being introduced as evidence against at trial.
Compulsion is another determining factor in the debate over constitutionality of admissibility of refusal evidence. The U.S. Supreme Court has found that there is no coercion involved in obtaining refusal evidence when an individual is arrested for a DUI drunk-driving offense and is requested to submit to a blood alcohol test.
Even though the DUI defendant had not been warned that a refusal could be used against him at trial, some courts have still ruled that the defendant's rights under the due process clause was not violated. Admittedly, the arresting officers did advise the DUI defendant that his refusal to submit to chemical testing could result in the loss of his driver's license for one year however, the officers did not specifically inform him that evidence of the refusal could also be used in any criminal proceedings against him. Because a suspect does not have a constitutional right to refuse chemical testing, the DUI drinking/driving defendant cannot claim that a warning was constitutionally required.
Evidentiary rules can alter the admissibility of evidence of refusal. One such rule states, "although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." Courts have found refusal evidence to be generally relevant to establishing evidence of consciousness of guilt, although on occasion it has been held irrelevant.
One court held that if the refusal is submitted in order to draw an inference of guilt or innocence, then it is irrelevant. Since the refusal may be admitted as evidence despite the best arguments, the best method to overcome this particular problem for the DUI defendant may be for the defendant to present evidence of his reasons for refusal. It has been found that this method may effectively counteract any prejudice admission of evidence of refusal may cause.
Some states have enacted a statute criminalizing the refusal to submit to a blood alcohol test. The purpose of the refusal statute is "to encourage all suspected drunk drivers to take the breathalyzer test." The criminal offense of refusing to submit to chemical testing is separate and distinct from the DUI drinking/driving offense. The penalties imposed as a result of a conviction are additional to the penalties imposed if the defendant is also convicted of the DUI drinking/driving offense.
In spite of if the DUI defendant pleads guilty or is acquitted of the DUI drunk driving charge, the criminal liability for refusing to submit to chemical testing remains in full force. In fact, some states go so far as to actually use the fact that the DUI defendant refused to submit to chemical testing to enhance the penalty the defendant is to receive upon conviction of the DUI offense. Despite the injustice of making a suspect's refusal to submit to chemical testing a crime, the relevant statute requires a mandatory jail sentence for those convicted of DUI offenses after refusing to submit to chemical testing.
Highway Defined
Highway is typically defined as the entire width between the boundary lines of every way or place of any type where any part thereof is open to public use for purposes of vehicular traffic. Highway has been interpreted to include a parking lot if it is open to public use. The essential feature of public use is that it is not confined to privileged individuals or groups whose eligibility is decided by some predetermined criteria, but is open to the indefinite public. For example, a taxi cab employee parking lot that is posted as "no trespassing" was held not open to public use and thus not a highway within the definition of the DUI statute. Similarly, a store parking lot restricted to employee and customer use was not a designated "open to public" parking area and thus was also not a highway under the terms of the DUI statute.
Parking lots for apartment buildings have generally been held to have sufficient "public use" to come within the highway definition regardless of the fact that they are restricted to tenants and their guests. Condominium parking lots open to the public fall into the same category. Parking lots to social clubs, bars and banks have all been held subject to the DUI laws. However, testimony must be presented showing the nature of the parking lot to sustain a conviction.
Courts are divided on whether public access areas include private property. A public access area has been interpreted to include any parking area in common public use with the owner's consent. A baseball field has been held not to be a place where the public is invited or licensed to operate a vehicle. Clearly a private residence driveway is not open to the public.
On occasion, parking lots in general have been held not to be included within the highway definition, simply because the legislature has not specifically included them within the statutory definition of "highway." Since "parking lot" was excluded from the definition of "highway" the court refused to include it in the prosecution for driving with a suspended license on a highway. In fact, a conviction was actually reversed where the offense occurred within an alley, since the term "highway" was not sufficiently defined in the felonious driving statute. DUI Punishment
At the sentencing state, the defendant's guilt will have been determined or admitted. This is surprisingly, a prime opportunity for the DUI lawyer to prepare the court regarding the requirement of justice. Intimate familiarity with the penalties authorized or mandated by statute as well as the purposes of various sanctions is absolutely necessary for effective representation at sentencing.
Ultimately, the purpose of DUI statues is to reduce the number of DUI drunk driving incidents, thereby increasing highway safety and reducing traffic fatalities. Sanctions against convicted DUI drivers attempt to promote this purpose through specific and general deterrence, as well as rehabilitation. Sentences may include incarceration and/or fines, community service, restitution, suspension or revocation of the driver's license and rehabilitation programs.
The sanctions imposed in any particular case will depend upon a number of factors, including statutory mandates, the degree of discretion left to the judge, formal or informal sentencing guidelines, the judge's individual agenda, the scope of the offense, whether the defendant has any past convictions and the judge's perception about whether the defendant is likely to commit further transgressions or is an ideal subject for rehabilitation.
DUI punishment has become alarmingly harsher over the past decade and promises only to become more severe. Here is a short discussion on each:
a. Fines
A defendant can expect to pay a fine of a few hundred dollars up to several thousand dollars. The financial impact of a DUI conviction eventually extends beyond the courtroom. The real financial burden may include higher insurance premiums, loss of employment and even loss of family or custody. The real financial cost thus cannot be calculated portraying excessive fines as unnecessarily disproportionate to the offense.
However, a further consideration in this context is a comparison between the amount of the fine and the financial resources of the defendant. Courts have ruled that since the defendant did not have the resources (or a reasonably near expectancy of them) to pay a $350 fine, that the fine was excessive and therefore, constitutionally prohibited.
Furthermore, the Supreme Court has ruled that the jailing of an indigent defendant solely because he or she is too poor to pay a fine violates equal protection where the offense would otherwise not be punishable by incarceration. Sentences of fine or imprisonment are thus not only challengeable on the grounds of abuse of discretion, but are subject to constitutional limitations as well.
b. Incarceration in County or State Jail System
A convicted DUI defendant may spend as many as one day to several months in prison. The sentence may be enhanced if the defendant refused to take the test, engaged in altercation with arresting officer or had a prior DUI conviction. Claims that imprisonment imposed on a DUI offender would constitute cruel and unusual punishment because of the defendant's alcoholism have been rejected. Even an argument that a ten-year mandatory minimum sentence at hard labor for fourth offense drinking and driving was cruel and unusual, was rejected.
If the sentencing guidelines provide for an enhanced DUI sentence in the event a victim of an accident involving the criminal defendant sustained serious bodily injury, the enhanced sentence will stand only if the prosecution establishes that the defendant's DUI conduct was a direct and substantial cause of the victim's serious bodily injury. A recent trend in sentencing is to order persons convicted of a DUI offense to serve at least part of their sentence confined to their homes.
c. Probation
The criminal justice system has gradually shifted its focus from filling prisons to a more compassionate approach, namely rehabilitation. Thus, conditional probation has become an increasingly important aspect of sentencing.
In general, the power to suspend sentence and impose probation is statutorily created, and must, therefore, be exercised in accordance with the statute authorizing it. Depending upon the restrictive nature, some statutes permit the court sole discretion in setting certain conditions of probation, while others specifically restrict the judge to certain conditions.
The most restrictive statutes may require imposition of certain conditions for certain offenses, require defendants to complete a minimum sentence before being eligible for probation or simply prohibit granting probation entirely for offenses of a certain type or those which prescribe punishment of a certain severity.
When probation is granted, some statutes explicitly authorize the imposition of certain conditions such as restitution, fines, recoupment and incarceration. These conditions have been upheld as designed to deter further offenses and thereby contribute to the defendant's rehabilitation. Recoupment statutes have withstood arguments that they may operate to deter defendants from exercising their right to counsel on account they are based on the ability of the defendant to pay. However, where revocation of probation occurs and the defendant is indigent or has made a good faith effort to pay fines or the costs of rehabilitation programs, courts have held revocation of the probation violates equal protection.
In addition to the explicitly authorized conditions of probation, formulation and imposition of other conditions is often left to the sound discretion of the trial court. These conditions are generally limited only by the requirement that they be reasonably related to the defendant's rehabilitation. Accordingly, trial courts should be viewed as having wide discretion in imposing these conditions.
Because the point of probation is to foster the rehabilitation of the offender, conditions that are neither reasonably related to that purpose nor necessary to the protection of public safety have been overruled as an abuse of sentencing discretion. Thus, restrictions drawn so broadly as to unnecessarily restrict the defendant's otherwise lawful activities have been held impermissible, as have conditions which have required that the defendant forfeit all assets and work full time for charity for three years, or the requirement that the defendant live and work on a specified farm during the term of probation.
Other conditions that have been held unlawful include sentencing a defendant to a period of probation that is greater than the maximum jail term for the offense or conditions that may later lead to enhancement of the sentence.
d. Attending DUI Classes or AA Meetings
As rehabilitation has emerged as a preferred primary goal, the possibility of alcohol rehabilitation or treatment should absolutely be considered before sentencing for at least two reasons: first, the client may need it; second, the sentencing judge will probably look more favorably upon a defendant whose drinking problem has been evaluated, with measures taken to control it if necessary.
If rehabilitation or treatment is allowed to be determined after sentencing, the defendant will be forced to accept the court's recommendation, including frequency and the facility. Whereas, if the client with or without the lawyer's assistance, seeks treatment, a better suited treatment program may be established for the client's individual personal and work-related needs, increasing the likelihood of successful treatment as well as leniency in sentencing.
e. Community Service
Community service will generally be upheld as a condition of probation or suspension of sentence unless it is manifestly unreasonable. In addition to using community service as a condition for probation, state statutes may allow for the performance of public work in lieu of restitution or mandatory confinement. Statutes that permit community service to be ordered require that the court set a specific number of hours of service to be performed by the offender and also provide an assignment to an appropriate agency. The DUI lawyer must be aware of local provisions on community service and, where permitted, suggest it as an alternative to incarceration or as a condition of probation.
f. Home Monitoring Programs
One of the softer sentences, home monitoring programs are designed to be accommodating and versatile enough for a variety of offenders. Although these programs are deemed a softer sentence, they are a sentence nonetheless. One system, developed by Mitsubishi® is specially adapted to inhibit a DUI offender while also detaining the offender in his/her house. Included with their system is a hand held breath analyzer, which is utilized much in the same fashion as that used by the ignition interlock devices. The device measures the breath for alcohol and transmits the results to the appropriate probation or correctional officer.
In addition to monitoring a defendant's alcohol intake, the systems can be used more generally to merely confine the DUI offender to his/her house, effectively incarcerating him/her without the added expense of incarcerating them in a jail or prison. Despite the obvious convenience and frugality of these systems, many states still refuse to prescribe their use where there is a mandated jail term.
g. Suspension, Revocation or Restriction of Drivers License
The most common result of DUI conviction is the suspension of drivers license. Statutory chapters set guidelines for granting of drivers licenses generally also provide the circumstances under which they can be revoked. With such statues in place, license revocations have primarily become a simple state administrative agency matter, occurring automatically upon conviction of a DUI offense.
In fact, where the statute does not specifically provide allowances for the court to grant a restricted license for travel to work or alcohol treatments, the court generally has no inherent authority to stay revocation, impose a lesser revocation period or order the Secretary of State to issue a judicial driving permit. Even where courts are allowed the authority to grant restricted licenses, these are generally limited to cases where "undue hardship" would result from failure to issue such a restricted driving permit. In cases where the Secretary of State refuses to issue defendants judicial driving permits ordered by the trial court, the order is often upheld on appeal, while due process challenges on mandatory revocations often fail.
In addition to mandatory license revocation, state statutes are increasingly giving courts the discretionary power to suspend the DUI offender's vehicle registration, or even, in some circumstances, to impound the convicted DUI offender's vehicle. Where allowed, actual impoundment rarely occurs and when it does, is of relatively short duration.
h. Restitution
Statues also regularly authorize restitution as a condition of probation. Courts have held that since restitution is not a fine, its amount is not limited by the statutory maximum fine; that since it is not a debt, it's not dischargeable in bankruptcy and that, although restitution is not in the nature of civil damages, restitution payments already made might be off-set against a subsequent award of civil damages for the same act.
Varying ideas of the restitution's nature and purpose have resulted in differing approaches in determining the amount of money to be paid. Recognizing the subjective nature of this determination process, most courts provide at least be reasonable support in the record for the trial judge's determination. Some states, fearing a weakening of the rehabilitative effect of restitution if the amount ordered appears arbitrary, require that the amount assessed be undisputed, liquidated or easily measurable. Others dispense with this requirement.
Finally, even where the trial court has failed to make an exact computation of damages, a restitution order was upheld where the appellate court felt that this omission worked to the defendant's favor, in that actual damages were thought to be much greater than the sum ordered as restitution. Courts also vary as to the types of damages for which restitution may be ordered; although there is general agreement that the defendant's criminal act must have caused the loss. Out-of-pocket losses such as medical expenses, pain and suffering, loss of wages and funeral expenses have all been upheld.
Because restitution is based on the actual financial loss of the victim, the court must first determine the total amount of the victim's actual, fiscal damages and then subtract from that amount any proceeds attributable to those damages received by the victim from the settlement of the civil claim. The defendant may be required to pay interest on the restitution award if it is found that the victim was actually deprived of the use of any money as the result of the defendant's criminal offense. The question of whether restitution may be ordered for the support of the deceased victim's dependents has been answered in the negative by those states, which limit restitution awards to the direct victim of the act.
In contrast, other states define "victim" to include any person who has suffered loss as the result of criminally injurious conduct. These states have allowed restitution payments toward the support of dependents and to the parents of a deceased victim. One court even upheld an order of payment to the insurance company that reimbursed the injured victim. For the most part, courts are reluctant to order restitution to a third party without explicit authorization by statute. For example, a court's order to make restitution to the athletic fund of the college at which the decedents had been athletes was not authorized by statute that permitted restitution only to the "victim or aggrieved party."
Regardless of how the amount of restitution is determined and to whom it is paid, most states require that restitution orders be limited in accordance with the defendant's ability to pay. State statute may require such limitations, but even where not required most courts recognize that conditions impossible to fulfill would frustrate the rehabilitative purpose of restitution. As such, these courts require an inquiry into the defendant's ability to pay before restitution is imposed. However, at least one court has held that a restitution order imposed on an indigent defendant was not an unreasonable probation condition since the defendant's finances could improve during the probationary period and probation could not be revoked solely for nonpayment.
i. Installation of Ignition Interlock Devices
Some states permit municipal and district court judges to impose additional sanctions on alcohol DUI offenders, which may include ordering some offenders to install an ignition interlock breath alcohol device on his/her cars. These devices require the driver to blow into a breath analyzer and unless the breath has a low (about .02%) level of alcohol, the car wouldn't start.
j. Vehicle Impoundment
Some state laws require the DUI arrestee's vehicle to be impounded. In limited cases, the vehicle may even be forfeited to the state, which is usually sold at a public auto auction with proceeds going to the state. Impoundment is said to be among the most effective punishments to encourage the DUI defendant from committing similar transgressions.
Prior DUI Convictions
If prior DUI convictions exist, a wise and experienced DUI lawyer will absolutely challenge them. A prior conviction must have met due process requirements. The rights to counsel, jury trial and confrontation must have been fulfilled or have been knowingly and understandingly waived.
In cases where prior conviction resulted from a guilty plea, the waiver of rights is often not adequate. If the defendant is pardoned, he/she may not receive an enhancement at sentencing when convicted for another DUI, though some courts have held otherwise.
In-home Arrest
Although one may be arrested in public without a warrant with some exceptions, a warrantless home arrest must pass a higher degree of scrutiny.
A warrantless arrest is limited to situations where there is consent to enter the home, or where exigent circumstances exist. A simple lack of response from within the home without other information does not qualify as consent or create exigent circumstances.
Some states allow in-home arrests without a warrant when the officers have probable cause for arrest and exigent circumstances are present. Exigent circumstances are found present when there is 1) the likelihood that relevant evidence would be lost if too much time were taken before determining the DUI defendant's blood alcohol level; 2) the possibility that the DUI defendant would drink more alcohol in the interim between driving and blood alcohol testing thereby rendering any subsequent test worthless; 3) the possibility that the DUI defendant would reenter his/her car, creating grave danger to the public; and 4) the gravity of the DUI offense.
When a suspect commits a misdemeanor in police presence, police may follow the suspect from a public place into a private home to affect an arrest without a warrant. The rationale is that one who is being pursued shall not be allowed to escape arrest simply because he beat his pursuers to a private place.
By contrast, it has been held that a nonconsensual home entry from DUI drinking and driving was unlawful when 1) the offense was not a felony, 2) no hot pursuit was in progress and 3) no further danger to the public existed because the driver was no longer on the road driving. In the case of an in-home arrest without a warrant in which the officers gained entry into a suspect's home by climbing through a window to question him in the investigation of a DUI offense, the entry was found to be unlawful and the subsequent arrest held invalid.
The private rights of suspected DUI offenders have not been entirely overlooked and limitations on in-home arrests without a warrant for violation of the DUI statute do exist. To justify an in-home warrantless arrest for a DUI offense, there must be: 1) consent to enter the home or the presence of exigent circumstances, such as hot pursuit, 2) the need to prevent flight of the suspect, 3) protection of public safety, 4) severity of the underlying offense, or 4) the need to prevent destruction of evidence.
Top 10 Mistakes in Drunk Driving Cases
Lawyers who represent drunk driving defendants -- especially those who don't concentrate in the area -- are frequently making some big mistakes that harm their clients, experts warn.
Lawyers Weekly USA conducted extensive interviews with the leading drunk driving defense experts in the country, and asked them for the 10 mistakes that they see defense lawyers make most. Here's what they told us:
1. Assuming the Case Can't Be Won
Many lawyers give up after getting the breath test result and the police report. They "do the guilty-plea shuffle," says Jess Paul of Indianapolis, a regent of the National College for DUI Defense.
Of course a more aggressive approach costs more, and some clients can't afford it. But many clients can afford to pay, and their lawyers should be doing more and charging more, experts say.
"If a lawyer doesn't plan on spending the time to prepare and try the case and quotes a fee of $500, he's just asking for a malpractice claim," says Reese Joye of North Charleston, South Carolina, co-author of 101 Ways to Avoid a Drunk Driving Conviction.
Lawyers should be "charging enough to take their clients' cases seriously," advises Roderick Kennedy, a judge in Albuquer-que, New Mexico.
The results of breath tests can often be overcome with a "Motion to Suppress," with cross-examination of the state's expert or the police officer, or with evidence of the defendant's sobriety.
"The jury knows that a thermometer might say an oven is 360 degrees, but if you put your hand in the oven and don't feel any heat, the thermometer is wrong," says John Henry Hingson of Portland, Oregon, a former president of the National Association of Criminal Defense Lawyers.
Lawyers frequently overestimate the cost and difficulty of preparing and trying a drunk driving case, says Ronald Cole of Anderson, South Carolina, author of a drunk driving defense manual.
He says such a case "doesn't require a big budget," at least if an expert witness isn't hired.
Lawyers who plead guilty too easily have another problem: They lose credibility when negotiating future cases with the prosecutor, says David Chapman of Tacoma, Washington.
With a more aggressive approach, a lawyer "will get the breaks when they are available," says Stephen Trezza of Tucson, Arizona.
2.Not Finding Out If the Breath Test Rules Were Followed
Breath test results can be attacked on the grounds that the state's technical rules for administering the test weren't followed properly, experts say. But many lawyers overlook this.
"Lawyers just don't read the statute and regulations," says John Tarantino of Providence, Rhode Island, editor of DWI Journal: Law & Science.
A violation of the rules can be introduced as evidence that the results are unreliable, and can also be used to exclude them altogether. There's a trend toward excluding test results for even very technical violations, experts say.
Most states have detailed requirements for how the test is given, how the machine is calibrated and maintained, how the operator is certified and how records are kept.
A common violation is the officer's failure to observe the defendant for a certain period of time -- usually 15 or 20 minutes -- before the test is given. The officer is supposed to make sure the defendant doesn't burp, hiccup or regurgitate during this time, since these actions can throw off the test results.
Courts have excluded test results because of this violation even where there is no evidence that the defendant actually burped, hiccupped or regurgitated.
They have also thrown out test results where:
* A copy of the test results wasn't mailed to the defendant;
* The test operator's license or certification had expired;
* The machine's mouthpiece was not changed before the test;
* The machine wasn't inspected as often as required;
* There was no record of the temperature of the solution used in calibrating the machine;
* The test wasn't sufficiently supervised by a "senior operator."
To look for a violation, lawyers should get copies of the machine's "calibration log," "usage log" and maintenance re-cords, as well as the operator's certification or license.
Many lawyers don't ask for these re-cords, says Lawrence Taylor of Long Beach California, author of the treatise Drunk Driving Defense. "They just get the complaint and the arrest report and that's the end of it."
3. Not Visiting the Scene Of the Arrest
Visiting the scene of the arrest is absolutely critical -- but many lawyers don't do it, experts say.
"It's the one thing that makes the most difference in the cases I try," says Flem Whited of Daytona Beach, Florida, editor of the Drinking/Driving Law Letter.
Going to the scene may allow you to find things that could have made the roadside tests difficult to perform, such as heavy traffic going by at 65 miles per hour or gravel on the pavement.
You also might see things that would explain erratic driving, such as a winding road, says Richard Zisson of Wellesley, Massachusetts.
When you cross-examine the police officer, you'll be able to ask about these things much more confidently if you've seen them yourself, says Whited.
You also might be able to catch a physical impossibility in the officer's testimony, says Zisson.
For example, if the officer says the defendant weaved a certain number of times while driving at a certain speed from Pleasant Street to Maple Street, you might take some measurements and find that there simply wasn't enough time for that to happen. Zisson says, "You do it on a blackboard and it's beautiful."
Whited notes that in a recent case, the officer claimed the defendant drove with two wheels on the curb for a certain distance before running into a street lamp. By visiting the scene, he found there were street signs in the way that would have made this impossible.
Visiting the scene also allows you to throw details into your cross-examination -- such as the position of a tree or a fire hydrant -- that will help persuade the jury that you really know what you're talking about, says Whited.
In some cases you may want to take photographs or a video of the scene to show the jury, experts say.
Francis Moore of Red Bank, New Jersey, a regent of the National College for DUI Defense, suggests taking a photograph of the spot where the roadside tests were given and including in the photo a level 8-foot board resting on bricks to show the slant in the road, a factor that makes the tests more difficult to perform.
He suggests putting a carpenter's level on the board; the greater the number of bricks needed at one end to make the board level, the more the road slants.
4.Not Fighting the License Suspension
Many lawyers make the mistake of not contesting a license suspension because they don't realize that (1) these hearings can often be won, and (2) even if you lose, you have an opportunity to "depose" the arresting officer.
"Lawyers fail to appreciate that, by God, these things can be won," says Douglas Cowan of Bellevue, Washington, co-author of a book on his state's drunk driving law.
License suspensions are imposed in every state for refusing a breath test and in 39 states for failing a test. It appears that defendants can get a hearing in every state if they request one.
These hearings can often be won based on technical defenses, experts say, including:
* The defendant wasn't properly advised of his rights (because the officer's explanation of the state's "implied consent law" was defective in some way);
* The officer failed to show up at the hearing;
* The "stop" or arrest wasn't justified;
* The defendant wasn't allowed an independent test;
* The test wasn't given in time;
* The defendant wasn't allowed to call an attorney;
* The officer was outside his jurisdiction;
* The officer's report wasn't sworn;
* There was no certificate by the machine operator;
* The form wasn't dated;
* A temporary license wasn't provided;
* The defendant didn't "refuse" the test (because he had asthma, the mouthpiece was clogged, he was confused about his rights, etc.); and
* There's no proof the defendant was driving.
Some of these defenses will work in some states but not in others. Also, the "batting averages" of defense lawyers vary from state to state. It appears that lawyers in some states win more than 60% of their hearings, while in other states they win less than 10%.
Even if the defendant loses at the hearing, it can still be a gold mine as a deposition of the officer, experts say.
At the hearing the officer is usually unprepared and uncoached. Generally he can be asked about every aspect of the arrest, including the roadside tests. The hearing transcript can be used to limit his testimony or to impeach him at a suppression hearing or at trial.
Also, if his testimony shows weaknesses in the state's case, or if it's inconsistent with his report, it can be used in plea bargaining.
(For an extensive discussion of license suspension hearings, see 96 LWUSA 141; Search word for LWUSA On-Line: Mauk-awsher.)
5.Not Filing a 'Probable Cause' Motion
Lawyers should file a pre-trial motion challenging "probable cause" as to the stop and the arrest in virtually every case, experts say.
Like suspension hearings, these motions can be won -- and even if you lose, they provide another opportunity to "depose" the arresting officer.
"Many lawyers don't bring any pre-trial motions but just go to trial," says Cowan's co-author, Steven Hayne of Bellevue, Washington. "This is a huge mistake."
"It's the most common mistake I see," says Mark Gardner of Painesville, Ohio.
The motions don't succeed very often. In general, a police stop is justified if there was a "reasonable and articulable suspicion" that a crime was being committed. It's usually enough that the defendant weaved. For the arrest, it's usually enough that the defendant failed the roadside tests.
However, "You never know what might click with the judge," says Michael Snure of Winter Park, Florida.
In some cases, the police officer will be inexperienced and won't testify to facts that justify the stop, says Trezza. For example, he may testify that he only saw the defendant weaving a couple of times within the lane.
But even if you lose, the hearing on the motion "is a great form of discovery," says Moore.
As with the suspension hearing, the officer can be asked a broad range of questions and his testimony can be used at trial as well as in plea bargaining.
In many cases, an officer's testimony will be different at the pre-trial hearing from what it was at the suspension hearing, and it will change again at trial, says Hingson. "The more times the officer is under oath the better."
6. Not Using the 'Training Manual' for Roadside Tests
The "training manual" with which the arresting officer learned to perform field sobriety tests is powerful evidence that defense lawyers frequently overlook, experts say.
If the officer didn't follow the manual's directions completely, this can be used to attack the tests' validity. This can be done at the suspension hearing, in a pre-trial motion to exclude the evidence and at trial.
"The officer will do something inconsistent with the materials 99.9% of the time," says Zisson.
The biggest mistake is that officers don't use objective scoring, says Taylor. The manuals explain how to score each test and how to combine the results to get a final score, but most officers just decide subjectively whether the person failed the tests, he says.
Officers also frequently ask the driver to do more than the manual requires, says Donald Day of Naples, Florida.
For example, with the one-leg stand test, some officers tell the driver to stand for longer than the manual specifies. Others require drivers to keep their head tilted back or their eyes closed.
If the officer used a test that isn't in the manual, you can argue that the test is per se invalid, experts say.
Most state manuals include only three tests:
(1) "Walk the line" (also called "walk and turn" or "heel to toe");
(2) One-leg stand; and
(3) Horizontal gaze nystagmus.
Common tests that officers use that aren't in the manuals include:
* "Finger to nose";
* Alphabet tests;
* Counting tests;
* Picking up coins; and
* Balancing tests.
You can subpoena the officer for the manual or you can get a copy from your state's traffic safety division or whatever institution trained the officer, says Day.
Most state manuals are based on a manual issued by the National Highway Traffic Safety Administration. Lawyers can use this manual if their state doesn't have its own, says Taylor. They may prefer to use it anyway since it may be more detailed then the state version.
The manual is "DWI Detection and Standardized Field Sobriety Testing," DOT-HS-808-112. It can be obtained from the National Technical Information Service in Springfield, Virginia by calling 703-487-4640 or faxing a request to 703-487-4815.
(For an extensive discussion of how to attack roadside tests with manuals and other materials, see 94 LWUSA 537; Search word for LWUSA On-Line: Paver.)
7. Ignoring the 'Extra' Penalties
Another mistake is failing to explain to the client all the effects a conviction might have in addition to a fine or jail time, such as a license suspension or revocation, higher insurance rates, loss of a job and the inability to rent a car.
"Not fully investigating and advising the client about the administrative sanctions is malpractice," says William O'Neil of Myrtle Beach, South Carolina.
"I see this over and over," says Bradley Koffel of Columbus, Ohio.
All the consequences of a conviction should be explained to the client and taken into account when deciding whether to plead guilty, says Hayne.
8. Trying to Make The Officer Sound Like a Liar
One of the biggest mistakes defense lawyers make is "trying to make the cop a liar when 'simply being mistaken this one time' will suffice," says Robert Chestney of Atlanta.
Jurors are reluctant to believe that an officer is lying, experts agree.
And an officer will never admit that he's lying even if he is, says Snure.
A better approach is "to meld the cop's and the client's stories together," says Cowan.
According to Zisson, "Generally the theme should be that the case is about a cop jumping to conclusions and making mistakes."
Taylor suggests beginning the cross-examination of the officer by asking, "You testified that the defendant was under the influence of alcohol. Is it possible you are wrong?"
9.Putting the Client On the Stand
"A lot of lawyers subscribe to the old wives' tale that you should always put the client on the stand in a DUI case," says Hayne.
However, he says, "Clients typically are inexperienced witnesses and will act nervous and appear deceitful."
Chestney adds, "Putting the client on the stand shifts the focus of the jury from 'Is the state's case really strong enough to remove all reasonable doubt?' to 'Is this person being 100% honest with me?' It forces the jury to choose between the cop and the defendant. And it allows the prosecutor to do what he lives for -- to make your client look like he's hiding something."
The better practice is to have the client testify only when you need him to contradict something the officer said, says Victor Pellegrino of Tampa, Florida.
For example, if the officer claims the defendant admitted to having had 10 beers, you may need him to testify that he never said this.
10. Not Consulting A Specialist
A lawyer who isn't a specialist in drunk driving should consult someone who is, experts say.
You should call a specialist and arrange to spend an hour or so talking with him or her about the case, says Chapman.
The specialist should be able to spot potential defenses, outline what investigation and discovery should be done and what motions should be filed, and generally plot strategy.
Today, a drunk driving case "is not something one should approach without getting good advice from people who know what they're doing," says Stephen Komie of Chicago.
He adds, "DUI's have gone from a relatively minor case to a complex case as a result of the reforms of the '80's and '90's."
Norman Teague of Meriden, Connecticut agrees. He says these cases "have gotten sophisticated. If in 1983 the skill level required was '1,' it's now '8' or '9.'"
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