Le Knapp: How Can I Avoid A DUI Conviction?

When people are arrested for DUI, most arrestees think that they have no chance to win. Many prospective clients have told me that they felt guilty by virtue of being cuffed and taken to jail. Additionally, almost 100% were (at the time of arrest) unaware of their legal rights when being questioned and evaluated by the police officer. Once you are out of jail, it is time to take action to avoid a DUI conviction.

• Avoid any type of vehicle if you have become impaired by overindulging, because any means of transportation can lead to a drunk driving or drugged driving conviction. Motorized equipment, such as golf carts, riding lawn mowers, electric wheelchairs or scooters will qualify as a vehicle in almost every jurisdiction. In other states, even a bicycle or a horse will be considered a vehicle for purposes of most states’ driving under the influence laws.

• Don’t assume that you can’t be arrested for drunk driving on private property, because you can be charged with drunk driving in most states, regardless of your location. Other states prohibit driving while intoxicated in parking lots accessible by the public or other roads or driveways leading to a public road.

• Even a car being towed can lead to a driving under the influence conviction if the person sitting behind the wheel is intoxicated, so avoid even getting in the front seat of a car if you are intoxicated. Be aware that current DUI laws are written by legislators and interpreted by judges to obtain more convictions, not fewer.

• If sleeping inside a car after you have been drinking, do so in the back seat, with the ignition off and the keys in your pocket, with the car off the highway. Better yet, put the ignition key in the trunk and use the remote release switch to get access once you are able to drive safely. To avoid a possible DUI, you must avoid inadvertently being in actual physical control of a motor vehicle.

• Breath testing machines are the most commonly used type of forensic test used by police. These mechanical devices are subject to error when you have been recently exposed to solvents volatile fumes, such as lacquer, paint, gasoline, or dry cleaning fluids. Be sure to advise your drunk driving lawyer of any exposure during the day before being arrested, and save the bottles that contain the chemicals.

• Existing “illegal per se” laws in 49 states allow the police to make a case against you regardless of your level of impairment. Therefore, either keep your alcohol consumption to moderate levels, or don’t drive at all after having more than a few drinks. Underage drivers are typically subject to lower per se alcohol levels ranging from 0.00 to 0.02 grams per cent. This means one beer or glass of wine for many smaller body weight drinkers.

• Where faced with a traditional driving under the influence charge (as opposed to “per se” DUI charges), and the indicated level of alcohol allows the state to have an inference of intoxication in its favor, the defendant’s DUI-DWI attorney must introduce evidence of non-intoxication or successfully impeach the officer’s account of the signs of impairment to rebut the inference, or face virtually certain conviction.

• At a jury trial, if the trial judge incorrectly instructs the jurors about inferences (making it irrefutable or mandatory), such instruction constitutes reversible error. Many cases that involve reversals get dismissed or reduced to a non-DUI disposition.

• With blood tests, if the crime lab or hospital personnel drawing or testing the blood for the state’s test do not follow the required state rules and regulations, the test results can be totally excluded from the evidence. In many driving while intoxicated cases, once the blood results are excluded, the DUI charge is dropped, and the case is resolved on the underlying non-serious traffic offense (i.e., speeding or lane violation).

• In administering any of the state’s tests, if the person operating the machine is not qualified or currently certified in accordance with state law, the test is invalid. Requiring strict proof of the testing officer’s certification can often lead to a dismissal or a favorable “plea bargain“, where some flaw or defect in the proof of current certification is called into question by the DUI-DWI defense attorney.

• By proving that the defendant was not in actual physical control of the vehicle, the case can be won, since one of the elements of the driving while intoxicated offense is missing. In some cases, the officer will not have observed the driver behind the wheel, and is unable to get an admission (confession) from the person he or she suspects was driving. Remain silent in such situations, and ask for an attorney. Remember that circumstantial evidence (such as having the keys in your pocket) can tie you to the vehicle.

• With DUI blood tests, the use of an alcohol laden swab on subject’s skin can contaminate the puncture site and render the blood test either inadmissible in some states, or create reasonable doubt of the reliability of the results at trial.

• Where state DUI law requires it, failure of the police to timely advice the defendant of his right to a second, independent test of blood, breath or urine, as mandated by state implied consent law causes the state’s test to be excluded from evidence.

• In some states, where the defendant is accused of an “illegal per se” DUI case, proof (by use of retrograde extrapolation techniques) that the defendant was not above the state threshold level (typically 0.08 grams per cent for drivers age 21 and over) because he or she was still in the absorptive stage at the time of the arrest, eliminates one of the elements of the per se DUI. A similar tactic can help in a common law driving while intoxicated case where you are facing an “inference” of intoxication threshold, since reasonable doubt can be raised about what the person’s blood alcohol level was at the time of driving.

• The police lacked probable cause to make the traffic stop, so all tests and evidence gathered as part of the illegal arrest must be thrown out of court. These cases are always fact-specific, and require a highly skilled drunk driving defense lawyer to obtain the necessary proof at pre-trial motion hearings.

• The use of medical or other expert testimony can prove that the defendant’s physiological system is unusual so that the state’s test results can be excluded or adjusted downward to an amount below the state’s threshold for the inference of intoxication, or simply presented to the jury in a fashion to create reasonable doubt about the quality and accuracy of the state’s tests.

• The failure of the arresting officer to follow through in giving the required implied consent warning swill cause the state’s BAC test results to be excluded from trial.

• If the arresting officer mis-states the required wording of the implied consent warnings, the state’s BAC test results will be excluded from trial, or the entire case may be dismissed.

• In some states, evidence of defendant’s refusal to be tested is not relevant to the question of whether the driver was driving under the influence at the time of driving. In such states, if the prosecutor mentions the defendant’s failure to submit to the state’s test, such introduction of evidence is improper in a jury trial.

• Most states do not permit automatic or forcible retrieval of a blood test sample from a suspected DUI driver unless a judge has issues a search warrant after either death or serious injury to another person has resulted from a DUI-related serious accident. Therefore, results obtained in such cases will be void.

• At trial, the prosecution must prove proper venue (that the criminal offense occurred in the court’s jurisdiction) in most states. Failure to prove venue will cause a conviction to be set aside at a timely post-trial motion, if the jury convicts the defendant.

• When a prosecutor draws up an accusation (sometimes called a complaint or information, in some jurisdictions), if the defendant’s name is incorrectly listed (wrong name), then the criminal defense attorney representing the defendant can assert this issue after jeopardy has attached, and win the case. This is sometimes called a demurrer or motion to quash.

• Typographical or drafting errors in the accusation, made by the prosecutor, can create a win for the defendant if critical language is omitted in the wording. This is sometimes called a demurrer or motion to quash.

• Put together a “kit” of items to assist you to avoid incriminating yourself and in order to be prepared in the event you are stopped by the police.

• Use “Driver’s Rights” cards (or similar cards provided by your DUI-DWI attorney) which speak for you in asserting your legal rights in the event of a confrontation with police. These cards can help you not incriminate yourself and help avoid providing the police with potentially inculpatory evidence (such as alleged slurred speech).

• Before going out for the evening, always prepare your vehicle by checking to make sure it has no equipment defects, that the tag is current and is visible (including all decals showing the current tax year being valid) removing any and all incriminating items (such as open containers of alcohol, drug paraphernalia) and any valuables. By having no valuables in the vehicle, if you need to leave your vehicle (and not drive), you won’t be concerned about your laptop or other important items being in the vehicle.

• Eat heartily before starting to drink and include high carbohydrate foods to help delay absorption of any alcohol that you will be drinking later that night. Studies show that eating before and during alcohol consumption can slow the person’s gastric motility from roughly 30 minutes (with no food) to over 2 hours. This keeps the “peak” alcohol level at a lower number as compared to drinking on an empty stomach.

• A fever or an elevated body core temperature (possibly caused by hot flashes or immersion in a hot tub) can cause a breath test reading to read artificially high. Most breath machines are pre-set to assume that every test subject has a perfect body temperature of 98.6°. For every degree higher (centigrade), the breath machine will overestimate the results by roughly 6.5%.

• If you are taking any type of prescription medication or non-prescription medication, avoid driving at all after drinking due to the possibility of the medication will either have a geometric impairing effect when combined with alcohol (called “synergistic effect”) or that the medication could actually contain alcohol which will be added to the alcohol that you will be drinking. The combination of alcohol and any medication, even Tylenol or aspirin, can cause the driver to unintentionally become more impaired (i.e., have slowed reaction times in handling divided attention tasks).

• Don’t drink at all (much less drive after drinking) if you are taking prescribed medications since the possibility of synergism or some other adverse effect from combining alcohol and drugs could kill you or cause the death of someone else.

• Be aware that a person’s body water determines how readily your body will absorb alcohol, and that lean, young men are best able to tolerate alcohol while old, overweight women are the least able to tolerate alcohol.

• Women should be especially cautious about what type of alcohol and what quantity they consume since studies have demonstrated that a male drinker’s stomach typically produces more of a digestive enzyme which helps metabolize alcohol than is found in women’s stomachs. This means that the average 150 pound woman is at an impairment disadvantage when compared to an identically built 150 pound man who consumes the exact same quantity of alcohol over the same time period. Also note that most prescribed and many over-the-counter medications (such as Zantac, Prilosec, Nexium or even Tums or Rolaids) designed to prevent gastric reflux or indigestion will remove or make inactive this valuable digestive enzyme. Hence, any person taking such medications or heartburn aids should cut alcohol consumption by one-third or even more.

• If you plan a night of drinking, start by having up to 32 ounces of water before any alcohol consumption, and alternate a glass of water between each alcoholic drink to help slow the rate of consumption.

• Studies have shown that carbonation in highball mixers, sparkling wines, and draft beer tends to accelerate the rate of absorption of alcohol into your bloodstream, causing you to get drunk than you would by using non-carbonated alternatives. Change what you drink and remain sober longer.

• Use non-carbonated fruit juices or other mixers with wine to dilute the alcohol content of your beverage, and thereby extend the time in which you can safely continue consuming wine.

• Stop all alcohol consumption at least 2 to 3 hours before starting home, and drink water during this time period to improve your chances for a favorable breath, blood or urine test if you are stopped later that night. Remember, if you drink heavily, even 10 hours of waiting will not eliminate a sufficient amount of alcohol to drop your blood alcohol level below your state’s per se limit. When heavy consumption occurs, don’t risk driving at all.

• Use a hand-held breath alcohol testing device to see what your approximate blood alcohol content is before leaving for home. Wait at least 30 minutes after drinking to use it, and remember that these devices are not highly accurate. If you are close to the legal limit, don’t risk driving. In the event of an accident involving death or serious injury, you can be charged with a felony vehicular homicide offense (vehicular manslaughter in some states) with any measurable level of alcohol in your system. In bad weather (rain, snow, ice) the number of accidents can increase by a factor of 20 or more, so make the decision to not drive at all when such conditions prevail.

• Give yourself some field sobriety tests to see what levels of impairment you may have, and avoid driving at all if you have difficulties performing the tests.

Avoid A DUI Conviction Attorney Free Consultation

When you need legal defense help for a criminal DUI case in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.