(US Criminal Law) People who get stopped for suspicion of drunk driving are subjected to a battery of tests. If an arrest ensues and DUI charges filed, even though the charges are serious, there are several defenses that can be pursued.
1) Challenge the administration of the breath alcohol test.
• The test must be administered by a properly trained breath alcohol technician or screening test technician. All officers are not qualified to administer this test.
• Even if the test was administered by the proper technician, the officer/technician must prove the machine was properly calibrated and maintained.
• Prior to administering the test, the technician must observe the suspect for approximately 20 minutes to be sure the suspect has not been eating, drinking, vomiting, burping, taking breath mints, smoking or using breath spray.
2) The following medical conditions may alter the breath test and create a falsely elevated breath alcohol test.
• A person with a low hematocrit.
• Someone with either hypoglycemia or diabetes.
• Someone on a high protein, low carbohydrate diet.
• Someone with a candida infection.
• Someone who has Lyme disease.
3) Challenges can be made to the way the blood alcohol concentration test was performed.
There are many areas that can be challenged relevant to a BAC. Start with challenging the laboratory procedures.
• A non-alcohol swab must be used to clean the area before inserting the needle.
• The blood must be properly preserved in the vial and stored in the refrigerator.
• Blood samples may be mislabeled or mixed up.
• Timing of the blood drawn in relationship to the driving time must be accurately recorded.
4) Some medical conditions can create false positives to the BAC.
• Diabetics may have a falsely elevated BAC level, particularly out-of-control or undiagnosed diabetics.
• Some over the counter painkillers, such as acetaminophen, and some prescription drugs, such as Percocet, can create a falsely elevated BAC
• The prosecution must establish a chain of custody for the blood sample. Any break in the chain renders the blood inadmissible at a trial.
5) The arrest can be challenged on the grounds that the police officer lacked reasonable suspicion to stop the car in the first place.
Police officers cannot arbitrarily stop a car, they must have a reasonable suspicion that an offense has occurred. This can be because the driver has committed a traffic violation. Another reason is if the driver is exhibiting impaired driving. But, generalities are not enough. Officers must be specific as to what driving actions appeared to be impaired.
There are other defenses that an aggressive defense lawyer will attempt to use such as was there probable cause for the arrest? Were the Miranda Rights properly administered? Keep in mind that no matter the case, an experienced aggressive lawyer will try to find a proper defense to your case.
This post was provided by the criminal defense lawyers from the Law Offices of David Michael Cantor. For more information regarding applicable DUI defenses in Arizona, please contact their office.
