Free Case Consultation (928) 753-6868

Legal News

Top 5 Most Common DUI Defenses

Posted by Shawn Hamp | Oct 18, 2014 | 0 Comments

Shot glasses

Common DUI Defenses

If you have been arrested and charged with the crime of Driving Under the Influence of Intoxicating Liquor or Drugs (DUI) you understand that you are facing a serious offense. You can lose your license, face mandatory fines and jail time. The task may be daunting but DUI cases are defensible. A quality DUI lawyercan help you identify unique issues in your case to identify the best DUI defenses available.

In my practice I have identified some of the most common, effective and typical DUI defenses that I come across.  The following is a list of some of these defenses to give you an idea of how legal and scientific issues form the basis for many types of DUI defenses.

1.  Suspect Not Given Opportunity to Contact an Attorney during the DUI Investigation.

Everyone has the right to consult with an attorney during any criminal investigation before or after being arrested. Rule 6.1 Ariz. Rules of Criminal Procedure.  In DUI investigations, this right is paramount because the time frames of a DUI investigation are critical in making the decision to obtain “independent exculpatory evidence”.  Denial of that right can result in a DUI case being dismissed. State v. Holland, 147 Ariz. 453, 456 (1985)

In Arizona, a suspect in a DUI investigation has a right to consult with counsel if it will not unreasonably delay or impede the DUI investigation. If a motion to dismiss or suppress evidence is filed by the defense on grounds of deprivation of the right to counsel, the State has the burden to prove that any deprivation of the right to counsel would have interfered with the DUI investigation; otherwise the remedy is suppression of evidence and dismissal of the charges. Any evidence obtained following the violation of a defendant's right to counsel must be suppressed, and often times a dismissal of the charges is the remedy when the State interferes with a defendant's inability to consult with counsel.

2.  Breath Alcohol Testing Can Be Inaccurate.

Breath tests, commonly referred to as breathalyzers, determine the particles of breath alcohol in your lungs and give a measurement of the blood alcohol level in your blood. This indirect measurement of you blood alcohol level can result in an inaccurate reading as a single test alone is not sufficient to determine the levels of alcohol in your system.

The partition ratio is the ratio of alcohol levels in the blood as they relate to alcohol levels in the breath or lungs. Breath Alcohol Testing relies on the presumption of a single partition ratio rating. However, variances in human physiology can result in individuals having different partition ratios than the ratio used as the basis for the breath alcohol test.

There are other factors that can suggest that Intoxilyzer or breath test reading can be high. Variances in body temperature during the administration of the tests result in false high readings. Even the breath instrument itself has an inherent 10% margin of error that can give false high readings.

A defense attorney, in consultation with a forensic toxicology expert, can help identify breath testing issues that may produce a valid defense to the breath tests presented in a DUI case.

3.  Illegal Stop of Person or Vehicle.

A driver cannot be stopped unless the officer has a reasonable and articulable basis to believe that a traffic law or other law has been violated nor can they be seized unless a violation has occurred.

In all criminal cases, the State has the burden to prove that all evidence was obtained lawfully and in compliance with the Fourth Amendment of the United States Constitution. The Fourth Amendment protects all individuals from unreasonable searches and seizures. A police officer cannot stop a motorist based on a “hunch” or a guess. Similarly, it is not a crime to drive a vehicle late at night or for simply leaving a bar.  An officer has to demonstrate an objective reason why they made a traffic stop to justify any subsequent seizure or evidence obtained.

defense attorney can analyze a case to determine if a Motion to Suppress Evidence should be filed in cases with no legal justification for the traffic stop.

4.  Field Sobriety Test are Inaccurate or Invalid.

Standardized Field Sobriety Tests are just that, “standardized”. To be an accurate test, the test must be instructed, given, and performed the same way every time to even be considered an accurate predictor for “cues of impairment”. These tests are barely 60% – 70% accurate in some studies and are completely invalid when performed on individuals with disabilities, who are overweight, or the elderly.

Not all Field Sobriety Tests are “standardized”. Tests like “Finger to Nose” tests, Rhomberg-Modified balancing tests, or reciting the alphabet ARE NOT standardized field sobriety tests recognized by the Federal Government and NHTSA (National Highway Transportation Safety Administration). Some of the tests are not even recognized by all police agencies. Their relevance at trial to demonstrate impairment are dubious at best.

An experienced DUI attorney can attack these field sobriety tests with some effectiveness, especially when no reports of bad driving are reported or the investigating officer is not qualified or did not properly administer the field sobriety tests.

5.  No Evidence of Suspect Driving Vehicle or Being in Actual Physical Control.

In Arizona, strong public policy dictates that a driver of a motor vehicle that recognizes they are a danger to the motoring public should safely get off the roadway. A motorist who is impaired but not driving a motor vehicle, or who is not in actual physical control of a motor vehicle should not be found guilty of a DUI. State v. Zavala, 136 Ariz. 356 (1983).

The issue in these cases often comes down to a determination by a jury if the driver was using the vehicle merely as a shelter before they regained their sobriety, or if they remained a threat or danger to the motoring public. Simply because one has a key in the ignition or the engine running does not mean the driver is in actual physical control. A jury must review the “totality of the circumstances” to determine whether a defendant's current or imminent control of the vehicle presented a real danger to himself or others at the time alleged.” State v. Zaragoza, 221 Ariz. 49.

These are some of the most common DUI defenses that I have come across in my practice, but this list is by no means exhaustive of the defenses that can be presented. DUI cases present some of the most interesting and challenging issues regarding legal and scientific defenses. If you have been charged with a DUI, you should obtain a consultation or case assessment to ensure you understand your rights in a criminal prosecution.

About the Author

Shawn Hamp

President and lead counsel for the Law Offices of Shawn B. Hamp, P.C. (An Arizona Professional Corporation), Shawn Hamp has practiced law for more than 15 years with an emphasis in criminal law. An experienced trial attorney, Mr. Hamp has been lead counsel in hundreds of criminal trials and court...

Comments

There are no comments for this post. Be the first and Add your Comment below.

Leave a Comment

Contact Us Today

If you have been arrested or charged with a crime you may be feeling frightened, anxious, and uncertain of what your future holds. The competent and experienced attorneys at the Law Offices of Shawn B. Hamp can help you during this difficult time. We are dedicated to fighting for the rights of our clients and providing excellent legal representation to those who have been accused of a crime. Contact our firm today to discuss your case in a free case consultation.

Menu