DUI Defense Tactics

Almost any West Virginia DUI case provides one or more opportunities to challenge the State’s case. The more knowledgeable your defense attorney is, the more challenges he/she is likely to find.

Some examples include challenging the DUI stop itself, challenging the blood alcohol concentration (BAC) evidence, challenging the field sobriety test (FST) results, and many more.

Let me show you what I mean through some actual examples:

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DUI Defense Tactics

Officer’s Failure to Investigate

I represented a lady in Taylor County who had been charged with a felony DUI. She was also charged for hitting a parked vehicle then leaving the scene and for driving without insurance.

My client, “Nancy,” suffered from severe anxiety and was under a doctor’s care. She was accompanied by her twelve year old son while driving through a hospital parking lot to drop off an employment application.

While driving, she focused a little too long on a group of people she knew who were standing outside the hospital and her car drifted out of the driving lane and struck a parked truck. The truck was only dinged, but her car was heavily damaged.

Due to her fear of being caught driving without insurance, she fled to her home and immediately began drinking straight liquor to calm her nerves. Definitely not the best cure for her problem, but the only logical decision she could reach in her rattled state of mind.

Because the people standing outside the hospital knew her, the police took very little time getting to her home where she was questioned.

The officer ignored the statements of Nancy’s son that she had not been drinking at the time of the accident. Instead, he made Nancy submit to field sobriety tests and a handheld preliminary breath test, all of which she failed miserably.

He arrested her for felony DUI (her third time being arrested) and took her to jail.

Nancy was represented by a court-appointed attorney who had told her that she should prepare to go to prison for the mandatory term of one to three years (meaning she would have to spend at least eighteen months in prison). He was already trying to work out the plea with the prosecutor so the case could be ended quickly.

I had previously represented Nancy’s sister and she told Nancy to call me. After speaking with Nancy on the phone, I quickly realized there was a lot more that could be done for her than the court-appointed lawyer was going to do.

I immediately began doing what the officer should have done when he was provided with the same information by Nancy - I talked to possible witnesses. We recreated Nancy’s whole day.

She had been helping a friend move into a new home nearly all day. They finished around four in the afternoon and Nancy went home to meet her son when he got home from school. The friend told me that they had each had one beer with lunch and that this was the only alcohol in her new home.

Nancy left over three hours later and was completely sober. Her son stated that he could tell when his mom had been drinking and that there was no question she was not doing so this day. (A point about his credibility - when Nancy was being questioned by the officer she initially denied that she was driving and that she had wrecked. Her son quickly jumped in and told the officer that was not true, then turned to Nancy and said, “Mom, you know that’s a lie and it’s wrong to lie.”)

He rode with Nancy to the store where she spoke with the clerk while she bought cigarettes for her husband who was at work. The clerk told me that Nancy appeared to be completely normal and that she did not observe anything to indicate Nancy was drinking.

Nancy and her son drove to her husband’s workplace and dropped the cigarettes off to him. They spoke for a few minutes and kissed as she left. He stated that she did not smell of any alcoholic beverages and that she was entirely normal in appearance.

The point is, four separate people were identified to the officer and he ignored the information they could have provided. He didn’t care what they had to say and never even bothered to interview them. As far as he was concerned, he had his suspect and the case was closed.

We had a hearing on Nancy’s case after I filed a motion to dismiss the charge. After hearing the evidence of the four witnesses, the judge threw the felony DUI out and Nancy entered pleas to the other two charges of leaving the scene of an accident and driving without insurance.

She paid a $25 fine and went home.

We never even got to argue the issues of how the officer blew the field sobriety tests, but that suited us both just fine!

Before I go any further, let me tell you that I'm not promising that I can do the same in your case. That would be unethical. Every situation is different. That was pretty interesting though, wasn't it?

Proof of Prior Conviction

Let me give you another example about a client I’ll call Jim.

Jim was facing a second offense misdemeanor DUI. Consequently, he was looking at a jail sentence of at least six months up to one year. He was also facing harsher second offense financial and drivers license penalties.

Jim had another lawyer representing him before I got involved. When I met Jim he was seriously considering a plea of Guilty to the second offense DUI, thinking there was nothing he could do to fight the charge and hoping he would receive the minimum jail time. He was hoping to then qualify for home confinement.

I'm not sure what the other lawyer did, but I was going to do everything I could before I would let him do six months in jail or even home confinement.

I dug into the case and in my investigation, realized the prosecutor did not have all the evidence he needed to prove Jim's prior DUI conviction, which was from another state. Of course, the prosecutor disagreed with me. So the fight was on.

I challenged the prior DUI conviction and we had a hearing. The Judged determined the prior conviction from another state was not legally sufficient to allow the State of West Virginia to charge him with a second offense, and that the most he could be charged with under the law was a first offense.

Consequently, the Judge was not required to sentence Jim to at least six months in jail.

The Judge only gave him twenty-four hours in jail and the minimum first offense fine.

My point here was to show you that although Jim's case looked pretty open and shut, it wasn't quite that simple. He didn't need to resign himself to at least six months in jail or home confinement . . . he just needed someone to take a good hard look at the Prosecution's case.

Attacking the Breath Test Machine Results

This example involves attacking the state’s “infallible” breath testing machine on behalf of a client named “Sue.”

Sue was facing a second offense DUI after giving a breath sample that showed a BAC of 0.182%, nearly twice the legal limit, and badly failing the field sobriety tests. She had also admitted to drinking six beers.

Sue was pretty sure the case was over and that she was going to jail for at least six months.

The Prosecutor was happy with her breath machine reading in this case and didn’t even want to talk about reducing the charge since it was so high.

A thorough investigation of Sue's case revealed she had a pierced tongue and had three tongue studs in at the time of her breath test. The Prosecutor was not willing to accept that this fact was relevant and still refused to do anything with the case. She forged ahead on a second offense.

I filed a motion showing the court and prosecutor that properly performed tests require the suspect’s mouth to be free from any foreign objects or materials or else the test is not reliable.

The prosecutor still didn’t want to give up her second offense prosecution, so she argued that we couldn’t prove Sue was wearing tongue studs at the time of her arrest.

We got copies of the intake records from the jail where Sue spent the night after her arrest. Right there on the listing of personal effects were the tongue studs.

When she saw this, the prosecutor immediately offered to reduce the charge to First Offense DUI, and Sue agreed (the other evidence in her case was too damaging to get the charge reduced to a non-DUI charge), ultimately receiving a sentence of only two days in jail, with credit for the time she had already served.

Instead of going to jail for at least six months, she spent about 36 hours on home confinement.

Another client, “Dave,” had a similar case with a high breath machine reading. He also had a pierced tongue, which inflated his breath results just like Sue’s. In his case, though, he did very well on all the field tests given by the officer. As a result of getting his breath results suppressed, the State agreed to dismiss the DUI charge altogether because it had nothing left that could even begin to support a DUI prosecution.

Improper Police Procedure

This last example involves an officer simply doing things the wrong way.

It happens a lot more than most people realize and can have disastrous results if not properly and fully challenged.

Andy was driving home from having dinner by himself at a restaurant where he had consumed a margarita with his meal.

There was heavy rain storm that evening and a gravel driveway had washed out into the roadway in a turn on a hill. As Andy came around the turn, his car hit the gravel and spun.

Before he could stop, his car hit a guardrail, damaging the entire driver’s side. He was not hurt and his car was still driveable. After inspecting the damage, he turned around and continued towards home.

About a mile later, he noticed several emergency vehicles coming the opposite direction through yet another sharp turn in the road, so he did what most people would do - he slowed down and pulled as far to the side of the road as he could to allow the emergency vehicles to pass.

However, instead of going by, a police cruiser pulled across the roadway in front of him and blocked the road so that he had to stop.

The officer got out of his car and approached Andy asking if he had been in a wreck. Andy told the officer he had spun in a turn after sliding on gravel in the roadway and had hit a guardrail.

The officer sent other officers to the scene to investigate the condition of the road (they confirmed it was just as Andy said it was).

Andy was asked to exit his car and walk with the officer across the road to a carwash where they entered a wash bay and began speaking. The officer later testified in a hearing that he had noticed the residual smell of the margarita on Andy’s breath and that he was conducting an investigation of possible DUI even though he hadn’t told Andy.

The officer admitted that during the conversation he felt that Andy appeared to be normal, both physically and mentally, and that he did not observe any indications whatsoever that Andy was under the influence of alcohol.

In fact, the officer was so comfortable with Andy’s appearance that he gave Andy his car keys and asked him to drive his car from where it was parked into the carwash lot.

After doing so, Andy produced his registration and insurance papers as he had been asked. However, the officer was still bothered by the smell of the margarita (he couldn’t actually identify the drink, just that he smelled a mild odor of an alcoholic beverage).

He decided to require Andy to submit to field sobriety testing even though he had just let him drive. This was his first mistake as any tests at the scene of the traffic stop are completely voluntary - an officer cannot force you to submit to them.

His next mistake was that he conducted the tests in complete violation of the testing standards he had been taught to use. Of course, under the improper testing techniques, Andy “failed” the tests.

The office then required him to submit to the preliminary breath test (a handheld device used in the field by officers). Even though Andy’s results were under the legal limit, the officer still arrested him.

We challenged the arrest on the basis of an illegal search and seizure by the officer. Our argument was that the officer had talked with Andy for fifteen to twenty minutes about a variety of subjects and that he had ultimately admitted he did not observe any signs of alcohol impairment.

However, after reaching that conclusion and allowing Andy to drive his car out of the roadway, the officer went against his intuition and began investigating Andy further via the use of field sobriety testing.

This was another case in which the methods of conducting the testing were at issue, but in this case, we were dealing with a reasonable prosecutor who realized those tests were not the real issue.

During negotiations, he agreed that the officer had no right to continue his investigation after admitting Andy did not appear to be intoxicated.

The case was dismissed and Andy’s record was cleared.

You may also be wondering about any impact on Andy’s driver’s license. The case on Andy’s license went to a full hearing before the DMV’s hearing examiner and the officer fought to get Andy’s license suspended. The DMV ruled that the officer was unable to prove his case and dismissed it, saving Andy’s license from any suspension.

All of these examples are true. Nothing has been exaggerated. Only the names have been changed.

The lesson to be learned from these examples is that a case--your case--may be able to be defended by one or more challenges to the charges you are facing, even if others don’t see any hope for you.

That's what I do for my clients.

Could the same be true for you? I don't know now, but if you call for your free consultation at 1-866-MY-WV-DUI (1-866-699-8384), I will explore all these types of possibilities with you.

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