My blood alcohol content (BAC) was over .08, do I have any real defenses?

woman taking breath test

Absolutely! DUI/DWI offenses are very technical and  law enforcement is required to give several tests in very specific ways and get very specific results before they are allowed to take the next step. If the police officer, sheriff’s deputy, or state trooper missed a step or did something wrong, your BAC may not be allowed in court. Sometimes, a mistake by a police officer in the early steps can mean there is not enough evidence to convict a driver of DUI/DWI, even with the driver’s BAC tested above .08 percent.

Usually, the first step that law enforcement must take is to justify why they pulled you over. They cannot just stop any car for any reason. They must have something called “reasonable suspicion” to believe the driver did something illegal. This might be justified if the driver was swerving in the lane, speeding, ran a stop sign, or if the vehicle tags showed a suspended license or other problems. A skilled DUI/DWI attorney will look at every possibility to make sure that law enforcement performed a legal stop because if it was illegal, any evidence collected after the stop might not be usable in court.

The next step usually involves the officer noticing signs of intoxication and making the driver perform field sobriety tests. The officer might ask the driver to walk heel-to-toe in a straight line, stand on one foot, or recite the alphabet. An officer needs to be trained to correctly administer these tests and one mistake might ruin the result. Not all tests are approved by the National Highway Traffic Safety Administration (NHTSA), like touching the tip of your nose with your finger, and reciting the evidence. Not all tests are equally reliable in proving impairment from alcohol. A close look at what tests the officer administered, how they were given, and what results were noted in the police report might open up powerful defenses for the driver.

The next step is often the preliminary breath test (PBT), sometimes called the breathalyzer. Most people do not realize that the result of this test is almost never used to prove the driver is guilty of DUI/DWI. There are also lots of regulations about how and when they can be used, how they must be maintained and calibrated, and what results a police officer can use.

Law enforcement must use these steps to show that there is “probable cause” that a driver is guilty of DUI/DWI before the driver can be arrested. If the driver was arrested and the tests or PBT do not support probable cause, the arrest might be illegal. That means that the BAC test taken at the police station, either a blood or breath (intoxilyzer) test, cannot be used. It would be called “fruit of the poisonous tree.” The arrest was illegal, which makes any evidence taken after the arrest illegal.

A skilled DUI/DWI attorney can find mistakes and problems with a DUI/DWI arrest. Certain mistakes might mean the BAC of .08 percent cannot be used to convict.

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