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Best Defenses for a DUI / DWI Charge

Best Defenses for a DUI / DWI Charge

If you have been arrested on a DUI / DWI charge, you might be thinking right now that the state prosecutor has an easy path to a conviction.

You were stopped driving home; the officer arrested you, took a breath sample, and it was above 0.08. Open and shut, right? Not so fast. There are many ways to challenge it.

There are countless ways you can contest the evidence in a DUI / DWI case, to avoid jail, heavy fines, loss of license, etc. Here is a quick list of five ways to fight the charge:

1. The officer lacked sufficient case to stop your car. Under Terry v. Ohio, officers must have reasonable articulable suspicion that “criminal activity is afoot” to initiate a traffic stop. Officers might have seen you leaving Martin’s, followed you on Electric Road, and decided to pull you over. But that’s not enough. There has to be significant weaving, a violation of traffic law, or other cause, for a legal traffic stop. Often times, officers on the Roanoke DWI Task Force are looking for any opportunity to pull your car over after midnight coming from downtown. But a good DUI / DWI defense lawyer will subpoena the dash cam footage and check to see if in fact there was a basis for the stop; if there’s not, case dismissed.

2. The officer lacked probable cause for arrest. Let’s say the officer had reason to pull you over. But then, when they get you out of the car, you perform well on the various field sobriety tests. Only three tests actually count under the NHTSA Guidelines: eye test, walk and turn, and one leg stand. They have to perform those tests exactly as instructed in their training; if they deviate at all from the standard instructions, the tests are unreliable and inadmissible – and your lawyer can move to suppress the arrest, and dismiss the charge.

3. Your BAC was above 0.08 – but the machine was not calibrated. There is a popular misconception that the breath test machines are fail-proof. They are not; one thing you can do in a DUI case is secure the maintenance records for the department’s breath test machine from the Va. Dept. of Forensic Science. The machine’s get out of calibration from time to time just like any other mechanical device, providing a basis to challenge the admissibility of the breath test result.

4. Your BAC was above 0.08 – but not until hours after the stop. It is not illegal to drive and have a BAC above 0.08 hours after the stop; the only issue is what your BAC level was at the time you were driving. The law presumes that your breath test result reflects your BAC level at the time you were driving, so long as the officer takes the breath sample within three hours of your arrest. A careful check of the timeline could invalidate the result; so could a review of the time you consumed any alcoholic beverage, because it is possible your BAC was rising during the three-hour period, meaning, it was below 0.08 while driving.

5. You were in an accident – and the officer did not see you driving. In my experience, accident-related DUI’s are among the most difficult for prosecutors to prove in court. The officer never saw you driving, so they have to rely on the testimony of witnesses to prove you were operating a vehicle. Also, unlike a traffic stop, where the officer can verify you had nothing to drink after you stopped driving, the officer in an accident-related DUI has to establish that you did not consume any alcohol after the accident; if they fail to ask those magic questions, then it raises doubt about whether any BAC, etc., after the accident reflects your condition while driving, as opposed to after you had exited the car.

In summary, DUI / DWI cases are not straightforward for officers, prosecutors, and the court. There is a a lot a DUI / DWI defense lawyer can do to push back against the evidence, all in an effort to avoid jail, keep the fine low, save your license for work, and potentially, get the charge reduced or dismissed.

Need help in a Roanoke DUI case? Call for a free consultation: 540-585-1776.

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