Things to Challenge in your DUI/DWI Case

CHALLENGE the initial stop of the vehicle. If the Court determines that the officer stopped your vehicle without having a reasonable articulable suspicion that you were somehow engaged in criminal activity the charges against you should be dismissed.

CHALLENGE the officer’s testimony regarding observations used to conclude that you were driving under the influence of alcohol (DUI / DWI). In most cases involving driving while under the influence of alcohol (DUI/ DWI) law enforcement officers offer testimony about observations they want the Court to believe supports the conclusion that you were under the influence of alcohol. Often there are innocent explanations for these observations that support the conclusion that you were not under the influence of alcohol.

CHALLENGE the officer’s recitation of only those observations offered to support the conclusion that you were under the influence of alcohol. Law enforcement officers will go to great lengths to testify about each and every observation that even remotely supports the conclusion that you were under the influence. However, in doing so officers intentionally decide to not write down all of the things that you did correctly and all of the observations which are inconsistent with you being under the influence of alcohol.

CHALLENGE the Field Sobriety Tests which were utilized to conclude that you were driving while under the influence of alcohol (DUI / DWI). There are a variety of so-called Field Sobriety Tests utilized by law enforcement officers. Often the tests utilized vary among officers within any particular law enforcement agency, as well as from one agency to another. However, only three Field Sobriety Tests have been found to be sufficiently reliable by NHTSA and standardized. If the officer asked you to perform Field Sobriety Tests which have not been found to be reliable and standardized your lawyer may be able to get this testimony excluded.

CHALLENGE the officer’s training regarding administration of the Standardized Field Sobriety Tests used to conclude that you were driving while under the influence of alcohol (DUI / DWI). If your lawyer can show that the officer was not properly trained to administer the Field Sobriety Tests, the Court may exclude this testimony.

CHALLENGE the actual administration of the Standardized Field Sobriety Tests which were used to conclude that you were driving while under the influence of alcohol (DUI / DWI). Most officers do not administer the Standardized Field Sobriety Tests in accordance with the guidelines and standards established by NHTSA. Your attorney should be familiar with the NHTSA standards so that any deviations from those standards by the officer can be exposed. Deviations from the NHTSA standards is important because even NHTSA acknowledges that “[I]f any one of the Standardized Field Sobriety Test elements is changed, the validity is compromised.” HS 178 R1/02, VIII-19

CHALLENGE the officer’s advisement regarding under what circumstances the result of the PBT can be used in your driving while under the influence of alcohol (DUI / DWI) case. Law enforcement officials are required to read to you certain warnings and advisements regarding the PBT and use of the result. If your lawyer can show that you were improperly advised, the result may be excluded.

CHALLENGE compliance with the PBT manufacturer’s warranty requirements. Many PBT devices are not maintained and calibrated in compliance with manufacturer’s warranty requirements. If your lawyer can show that the PBT used in your case was not properly maintained and calibrated the result may be excluded.

CHALLENGE the accuracy of the Preliminary Breath Testing (PBT) device used to conclude that you were driving while under the influence of alcohol (DUI / DWI). There are several factors which can cause PBT devices to produce inaccurate results, including breath sample composition, breath sample temperature, residual mouth alcohol, breath sample contaminants, radio frequency interference. Some of these factors cause the PBT to produce a false high reading and some cause a false low reading. Any lawyer you hire to defend you on a charge of driving while under the influence of alcohol (DUI / DWI) should be able to explain to you how each of these factors affects the PBT.

CHALLENGE whether there was Probable Cause to arrest you for driving while under the influence of alcohol (DUI / DWI). If the Court determines that you were arrested without Probable Cause to believe that you were driving under the influence of alcohol (DUI / DWI), or probable cause to believe that you had committed some other crime, the charges against you should be dismissed.

CHALLENGE the officer’s advisement regarding Implied Consent. Law enforcement officers are required to read to you certain warnings and advisements regarding your Implied Consent to take the breath test and the consequences of refusing to do so. If your lawyer can show that you were improperly advised, the result may be excluded.

CHALLENGE the officer’s training regarding use of the breath test machine used to conclude that you were driving while under the influence of alcohol (DUI / DWI). If the officer has not been properly trained regarding use of the Intoxilyzer, your lawyer may be able to get the Court to exclude the Intoxilyzer test result.

CHALLENGE the actual administration of the Intoxilyzer 5000 test used to conclude that you were driving while under the influence of alcohol (DUI / DWI). The breath test using the Intoxilyzer must be administered in accordance with specific guidelines. Your lawyer should be able to explain to you the proper procedure for administration of the breath test, and if your lawyer can show that the test was not properly administered, the result may be excluded.

CHALLENGE the admissibility of the Intoxilyzer 5000 test results in your trial for driving while under the influence of alcohol (DUI / DWI). Recent developments in constitutional law raise significant questions about the admissibility of the test result suggesting doing so violates your constitutional right of confrontation.

CHALLENGE the accuracy and reliability of the Intoxilyzer 5000 test result. Many attorneys feel that if there is a breath test in their client’s case it is unattackable and they immediately assume the only option is to plead guilty. These attorneys do not understand how the Intoxilyzer functions, so they do not know how to attack the results it provides. Any lawyer you hire to represent you on a charge of driving while under the influence of alcohol (DUI / DWI) should be able to explain to you how the Intoxilyzer 5000 functions and the several assumptions on which the software used to produce the result is based. If an attorney can not explain to you how the machine functions, how is that attorney going to challenge the result the machine produced?

CHALLENGE the significance of the Intoxilyzer 5000 test result by showing it does not reflect the blood alcohol content at the time of driving. The government must prove that you were under the influence of alcohol or that your blood alcohol content was .08 or more, at the time you were driving. However, the breath test using the Intoxilyzer was administered much later and one’s blood alcohol content can change significantly over that period of time. Any lawyer you hire to defend you on a charge of driving while under the influence of alcohol should be able to explain to you how the body absorbs, metabolizes, distributes and eliminates alcohol and why the time lapse between driving and testing can be critically important.

CHALLENGE the denial of the ability to take a breath test if you were not allowed the opportunity to do so. Virginia law requires that you submit to a breath test under most circumstances, and if you were denied the opportunity to do so it could result in the charges against you being dismissed.

CHALLENGE everything!