Defenses to a DUI Charge
Successfully defending Clients against DUI charges in Arizona involves recognizing the issues and using them to our advantage.
Potential DUI defenses include:
LACK OF DRIVING OR ACTUAL PHYSICAL CONTROL:
In Arizona the State must establish you were driving or in actual physical control of a vehicle while impaired. Consequently, the prosecutor must have a witness who observed you driving or show that you were in actual physical control of a car.
Actual physical control cases usually involve situations where a person may be found parked in a vehicle, sitting in the driver's seat with the engine running or pulled over to the side of the road. If a person has voluntarily relinquished control of their vehicle, actual physical control does not exist to support a DUI arrest.
NO REASONABLE SUSPICION TO STOP:
An officer must have a valid reason to stop you before making a DUI arrest. This means the officer must have some reasonable suspicion that criminal activity has or is likely to occur, or the officer has witnessed an actual traffic violation. If the officer lacks a valid reason for stopping and detaining you, all evidence related to the DUI can be suppressed, thereby causing the DUI charges to be dismissed.
NO PROBABLE CAUSE TO ARREST:
The Officer must have reliable information which would lead a reasonable person to conclude that a suspect is impaired to drive a car. The officer must perform a thorough investigation and have sufficient evidence before making an arrest. If the officer fails to develop probable cause, the DUI charges are subject to dismissal.
IMPROPERLY ADMINISTERED FIELD SOBRIETY TESTS (FST'S):
The National Highway Traffic Safety Administration (NHTSA) has established specific guidelines regarding the administration of FST's. Commonly administered field tests include Horizontal Gaze Nystagmus (HGN), Walk and Turn, and the One Leg Stand. The Walk and Turn and One Leg Stand tests should not be given if the suspect:
• -- is 50 pounds or more overweight;
• -- is 65 years of age or older;
• -- has any back, hip, leg, knee, or ankle injuries;
• -- has any disability effecting balance (past head injuries); and/or;
• is wearing shoes with heels two (2) inches or higher.
If an officer fails to follow the NHTSA guidelines during a DUI investigation, the FST's are invalid.
Additionally, Field Sobriety Tests are voluntary and you can refuse to do any of the exercises mentioned above. Poor performance on FST's are commonly attributed to alcohol impairment. However, few people can perform the tests perfectly. Police will generally argue that errors on the FST's are due to intoxication and will usually ignore other issues such as nervousness, anxiety, tiredness, etc.
DENIAL OF THE RIGHT TO COUNSEL:
When a DUI suspect requests an attorney, the police must provide you with an opportunity to speak with a lawyer telephonically as soon as is reasonably possible. The police must give you a private room to speak along with a telephone. If the police fail to provide access to an attorney, the DUI charges can be dismissed or blood or breathalyzer results suppressed.
VIOLATION OF MIRANDA WARNINGS:
Before any questioning by law enforcement officers of a person in custody he or she must be warned that they:
(a) have a right to remain silent;
(b) any statement they make may be used as evidence against them (c) they right to the presence of an attorney
(d) if they cannot afford an attorney, one will be appointed for them prior to any questioning.
If police violate a person's Miranda rights, any statements the person makes during police questioning cannot be used against them.
INACCURACY OF THE BREATH TESTING DEVICE:
In order for breathalyzer tests to be used by the prosecutor, police must have followed the required procedures outlined by the Department of Health Services. Among other things, these procedures include a fifteen minute deprivation period. The breathalyzer instrument must be calibrated every 31 days and must also undergo periodic standard quality assurance testing.
If any of the maintenance checks appear out of tolerance, or if required procedures
were not followed, the breath tests can be suppressed.
PORTABLE BREATH TESTING DEVICES (PBT):
The PBT is a field test instrument designed solely to determine if a person has alcohol in their system. The results cannot be introduced in court because the machines do not undergo scheduled tests for accuracy or reliability.
A person can and should refuse the PBT test.
The Intoxilyzer Machine is a breath-testing device manufactured by C.M.I. to analyze your breath sample through an infrared spectroscopy for the purposes of determining the amount of alcohol present in your system. There are issues surrounding the potential accuracy and reliability of the Intoxilyzer. There are many ways to
challenge the breath result.
Subtractive retrograde is a method which can be used to show that a person's alcohol concentration at the time he was stopped by police was lower than at the time they took a blood or breath test. This issue is dependent upon many factors such as when alcohol was consumed, whether a person ate any food, the time the person last consumed alcohol, etc.
DEFICIENCIES IN BLOOD ALCOHOL TESTING
& ISSUES IN BLOOD CASES:
Results of blood alcohol testing are admissible if the State can establish the blood was drawn by qualified personnel and the particular scientific analysis utilized complied with scientific standards. A gas chromatograph is used to analyze blood samples and the State must show the machine was in proper working order. Also important are issues regarding storage of the blood sample, integrity of the blood kit, preservatives used in the blood sample, etc.
DENIAL OF INDEPENDENT TEST:
A person has a due process right to collect independent scientific evidence of their blood alcohol concentration (BAC). Independent chemical tests are exculpatory evidence and the State may not unreasonably interfere with your reasonable efforts to gain such evidence. If this occurs, dismissal or the DUI charge or suppression of the blood or breath tests may result.