101 Ways to Avoid a Drunk Driving Conviction
Summary of the 101 Ways
Excerpted from the book, 101 Ways to Avoid a Drunk Driving Conviction
by William C. Head, Esq. and Reese I. Joye, Jr., Esq.
Chapter I
1. Avoid any type
of vehicle if you have become impaired by overindulging, because any means
of transportation can lead to a DUI
conviction.
2. Don't assume that you can't be arrested for DUI
on private property, because you can be charged with DUI
in most states, regardless of your location.
3. Even a car
being towed can lead to a DUI 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.
4. 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.
5. Breath
machines are subject to error when you have been recently exposed
to volatile fumes, such as lacquer, paint, gasoline, or dry cleaning fluids.
Always get a second, independent test.
6. Existing "illegal
per se" laws in 45 states and D.C. allow the police to make a case
against you regardless of any evidence of impairment; therefore, either
keep your alcohol consumption to moderate levels, or don't drive at all
after having more than a few drinks.
7. Where faced
with a traditional DUI charge,
and the indicated level of alcohol allows the state to have a presumption
of intoxication in its favor, the defendant must introduce evidence of
non-intoxication to rebut the presumption, or face virtual certain conviction.
8. If the trial
judge incorrectly instructs the jurors about presumptions (making it irrebuttable
or mandatory), such instruction constitutes reversible error.
9. With blood
tests, if the personnel drawing the blood for the state's test do
not follow the required rules and regulations, the test results can be
totally excluded from the evidence.
10. In administering
any of the state's tests, if the person operating the machine is not qualified
or 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.
11. 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 alleged
crime is missing.
12. With blood
tests, the use of an alcohol laden swab on subject's skin contaminates
the puncture site and voids the test by the state.
13. Where state
law requires it, failure of the police to advise the defendant of his
right to a second, independent test as required by state law voids the
state's test.
14. In an "illegal
per se" DUI case, proof (by
use of retrograde extrapolation techniques) that the defendant was not
above the state threshold level because he was still in the absorption
stage at the time of the arrest, eliminates one of the elements of the
per se DUI. A similar tactic can
help where you are facing a "presumption" of intoxication threshold.
15. The police
lacked probable cause to make the "stop", so all tests and evidence
gathered as part of the illegal arrest must be thrown out of court.
16. 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 at least adjusted to an amount below the state's threshold
for the "presumption" of intoxication.
17. Where the
state's testing machine is subject to error of +/-0.01% this margin of
error can be used to show that the required threshold (which is an element
of the state's case) is missing.
18. Where good
reason exists to refuse the state's test, such refusal generally will
prevent the state from using a numerical BAC
reading against you, thereby greatly reducing the chances of a conviction
for DUI. However, an administrative
suspension of driving privileges will be the consequence, in most states.
In some states, such as New Jersey
and Alaska, potential penalties for refusal are as bad as the penalties
for DUI.
19. The failure
of the arresting officer to follow through in giving the required implied
consent warnings will cause the state's BAC
test results to be excluded from trial.
20. If the arresting
officer misstates 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.
21. In some 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.
22. Most states
do not permit forcible retrieval of a blood sample from a suspected DUI
driver unless death or serious
injury to another person has resulted from a DUI
related accident. Therefore, results obtained in such cases will be void
Chapter II
23. Use a designated
driver for your group in order to eliminate the possibility of the least
drunk driver trying to take everyone home.
24. Change the
brand or type of alcoholic beverage to lessen the quantity of alcohol
being consumed. For example, use a "low alcohol" brand beer
versus regular beer, or alternate with a "non-alcoholic" beer
every other hour.
25. Use public
transportation to take you and your group to and from your destination,
thereby allowing everyone to imbibe.
26. 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.
27. Use the "Driver's
Rights" cards located in Appendix K (or similar cards provided
by your attorney) which "speak for you" in asserting your rights
in the event of a confrontation with police.
28. Before going
out for the evening, always prepare your vehicle by removing any and all
incriminating items and any valuables.
29. Eat heartily
before starting to drink and include high carbohydrate foods to help absorb
alcohol that you will be drinking later that night.
30. Avoid driving
after drinking if you have a fever or an elevated "body core"
temperature.
31. If you are
taking any type of non-prescription
medication, avoid driving at all after drinking due to the possibility
of the medication containing alcohol which would be added to the alcohol
that you will be drinking.
32. 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.
Chapter III
33. 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,
fat women are the least able to tolerate alcohol.
34. Women should
be especially cautious about what type of alcohol and what quantity they
consume since studies have shown that men's stomachs produce more of a
special enzyme which metabolizes alcohol than is found in women's stomachs.
35. 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.
36. 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 more
drunk than you would by using non-carbonated (or less-carbonated) alternatives.
37. 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.
38. Stop all alcohol
consumption 1 1/2 hours before starting home and drink water during this
time period to improve your chances for a favorable urine test if you
are stopped later that night.
39. Use a hand-held
breath alcohol testing device
to see what your alcohol content is before leaving for home.
40. Give yourself
some field sobriety tests
to see what level of impairment you may have, and avoid driving at all
if you have difficulties performing the tests.
Chapter IV
41. Make sure
that you and all your passengers are wearing seat belts, and that no distractions
in your car (such as rowdy passengers, the radio or a tape player) would
cause you to not concentrate on driving.
42. Use turn signals
whenever required, and do not use your high beam lights at all on the
entire trip home.
43. Be aware that
traffic offenses such as speeding, running a red light, and not making
a complete stop at a stop sign are the leading causes for the police to
stop vehicles that subsequently result in DUI
convictions.
44. In bad weather,
due to more than a ten times greater chance of an accident, don't drive
after consuming any alcohol at all since you can be convicted of a DUI
even where the level of alcohol was less than the per se limit or the
traditional DUI threshold when
an accident is involved.
45. "Blend
in" with traffic because studies have shown that it is significantly
more difficult for police to detect an impaired driver than when your
car is isolated on the highway.
46. Don't be a
good Samaritan on the way home because acts of kindness or civic-mindedness
can bring you into contact with police, resulting in a DUI
conviction.
47. Don't ever
try to elude an officer because such an attempt constitutes a serious
offense and may even result in a tragic
accident, or possibly lead to a murder charge.
48. If you are
pulled over by the police, don't exit your car unless instructed to do
so by the police officer, because you may incriminate yourself by conduct
which indicates intoxication (being unsteady on your feet).
Chapter V
49. If you are
stopped for a traffic violation, don't argue with the police officer.
Simply give the officer your documents, and don't talk except to respond
in the most basic fashion. Your pocket recorder will tape the transaction
for later use.
50. If you receive
a ticket for a moving violation, and not a DUI
citation, don't press your luck by continuing to drive. The police may
well be looking for you down the road. Go to a motel and check in, or
call someone to come get you.
51. If you are
stopped at a roadblock, have your license and other documents in hand
and offer these to the officer. Your pocket recorder will capture the
conversation. Never admit to having consumed alcohol. Don't perform field
sobriety tests, and (in most states) don't blow into a portable
breath testing device without first speaking to an attorney, unless
the officer advises you that your license
will be revoked for refusing to do so. Card No. 1 of Appendix K covers
what needs to be told the officer about your willingness to cooperate
on tests at the scene of the "stop".
52. If you are
involved in an accident after having had something to drink, don't talk
to anyone at the scene about it. Don't take any FSTs. If
anyone was injured or killed, refuse all tests unless your attorney advises
you to submit.
53. Regardless
of the cause for the "stop" NEVER admit prior alcohol consumption.
Don't blurt out anything to the officer in an attempt to explain the circumstances,
or it will be used against you later in court.
54 If an officer
insists that you must perform field
sobriety tests or blow into a portable
breath testing device, only do so IF the officer advises you that
your license will be revoked for failure
to comply. Due to the fact that this is NOT TRUE in most states, ask
the officer to write in his field notes that you are agreeing to do these
tests under protest.
55. When you are
required to submit to the official state test for BAC,
ALWAYS insist on your own independent BAC tests. Some states require you
to obtain your tests on your own initiative, and will tell you nothing
about your rights to seek another test. Other states will advise you of
this right, and will even transport you to a facility for giving a sample,
if you are going to be kept in custody.
56. If the police
deprive you of your freedom of movement and then elicit answers to incriminating
questions from you without first giving your Miranda warnings, your attorney
may be able to suppress any admissions made by you while in custody.
57. A commonly-used
field sobriety test,
the horizontal gaze nystagmus test has a multitude of other possible medical
causes other than intoxication, and your attorney can present these to
the jury to discount the officer's statement that you failed this test
due to intoxication (assuming that you haven't simply refused to perform
all field sobriety tests).
58. Before taking
the official state-administered BAC tests,
ask if state law permits you to speak with an attorney. Many states permit
a limited right for you to do so, and you should always exercise this
right. Card No. 2 of Appendix K covers this situation, and asserts your
rights for you.
59. Try to record
the conversations between you and the police officers because the officer's
missing or defective warnings can cause test results to be excluded from
evidence. Without the tape, the jury will believe the officer's testimony
over yours.
60. If requested
to take the "officials state BAC
tests, your delaying tactics or insistence on speaking with an attorney
(if you have been told that no right to counsel exists in that state)
can constitute a refusal, causing an implied
consent license revocation.
61. By asking
the officer whether you can make telephone calls to an attorney or family
member prior to submitting the official BAC
tests, you may be taking advantage of legally-permissible delays that
will make your BAC tests more favorable.
Chapter VI
62. In states
which require the police to administer multiple BAC
tests, the failure of the police to perform any of the additional tests
required by law will be grounds to exclude all test evidence from the
trial. However, the cause of the non-completion of tests can not be your
refusal or willful non-compliance with the officer's request for a sample.
63. If the police
fail to fully advise you of what types of independent tests you may take
pursuant to state statutes and regulations, this will cause the state's
test results to be excluded from evidence.
64. Proving that
the defendant partition ratio is not "normal" such that the
pre-set breath testing machine standards are inaccurate can provide the
necessary evidence to convince the jury that the BAC
results are not worthy of belief.
65. Proving that
the defendant's hematocrit is outside the normal range and significantly
"variant" to cause an adjustment in the indicated BAC
reading may drop the defendant's BAC
level below the per se standard (or the "presumed" intoxicated
threshold) set by law.
66. Attacking
the breath testing machine's accuracy
based upon its record of failure during certification tests may cast sufficient
doubt upon reliability of the machine to either cause the judge to exclude
the test results or convince the jury not to believe the state's BAC
reading.
67. If you are
to be tested on the official state BAC
equipment, be certain that you inform the officers about any physical
problems or environmental interferers which may have a bearing on your
test results. The state's test may be later excluded if it is non-specific
for detection of alcohol.
68. Bridgework
or false teeth may "trap" mouth alcohol and contaminate a breath
machine sample. The failure of police to cause dentures to be removed
before a test can be grounds for dismissal of charges, or at least grounds
for excluding the state's breath
test results.
69. If a police
officer fails to continuously observe a defendant for the required waiting
period under state law, this can be the ground for excluding the state's
BAC results.
70. Vomiting or
burping delays the start of the breath test due to the contamination of
your mouth by alcohol brought up from the stomach. The failure of the
officer to restart the observation period will be grounds to exclude the
state's BAC results.
71. Where the
prosecution uses a witness to try to establish that you had a higher BAC
at the time of driving (by using retrograde extrapolation techniques),
such testimony should be attacked based on the witness' lack of knowledge
about your rate of elimination, timing of the drinking period, strength
of the alcoholic beverage, and other variables which will affect the Widmark
curve.
72. Always get
the names, addresses and telephone numbers of potentially beneficial witnesses
regarding your appearance of sobriety at the police station, or during
the time your were receiving your independent tests. These witnesses may
help your attorney build your defense.
73. Whenever submitting
to the state's BAC tests, always ask
the test operator to preserve a sample of the breath, urine or blood so
that the sample can be independently tested later.
74. Where a single
breath test is utilized by the
state, your attorney may be able to assert due process and equal protection
arguments that may convince an appeals court that the state's use of one
test is constitutionally infirm, particularly where no sample is preserved
after your request for same.
75. For blood
tests, most states only permit highly-trained medical personnel to
collect blood samples. Challenging the person's qualifications or certification
can result in the BAC test results being
excluded.
76. The state
must prove that the laboratory or hospital which analyzed your blood sample
used properly trained personnel to collect the sample. Sometimes, winning
on this point is as simple as filing a motion to dismiss or a motion for
directed verdict as a result of the prosecutor failing to introduce the
proper evidence of the technician's training, which will cause the person's
testimony to be totally excluded.
77. When obtaining
your independent tests, be certain
that the laboratory analyzes whole blood and not plasma. Whenever
plasma is tested, the results can be as much as 20% higher than when whole
blood is utilized.
78. Always ask
for "split" samples on blood
tests so that an unaltered portion can be later tested to determine
unusual hematocrit or other atypical conditions of your blood.
Chapter VII
79. If you have
not yet been permitted to call an attorney, ask for permission to do so
after you are booked. Every state allows attorney contact at this stage.
80. Don't talk
with fellow detainees or police personnel about your arrest for DUI.
Only speak with your attorney unless he advises you to discuss matters
with other persons.
81. At the police
station, stay seated and be certain that you maintain a composed demeanor
at all times. You may be "on camera" with the police department's
video tape machine.
82. In many states,
the police officers must provide you with certain copies of the arrest,
testing or booking documentation. Remember what you were given and keep
up with all such documents.
83. If the police
ask your permission to videotape you, don't agree to this, since this
likely means that you look drunk, and they want to tape you so it can
be used against you later.
84. If video equipment
is available to the police and it is NOT being used on you, ask your attorney
whether you should request the police to videotape you if equipment is
available. In the alternative, ask your attorney if he has video equipment
which can be brought to the police station so that you can be taped.
85. When you go
to have your independent test(s) done, get a urine test and a blood test,
if your state law allows you to have more than one test made. If you have
been consuming vast quantities of water, as suggested in this book, your
urine test may be highly favorable, when compared to a blood or breath
test.
86. Be certain
that you can establish a "clean" chain of custody for your independent
test samples in the event these are required to be transported for analysis.
87. Call upon
a friend or relative to assist you in arranging for bail so that you can
get out of jail promptly. Furthermore, this witness may be used later
to testify that you did not appear to be intoxicated when they saw you
that evening.
88. Your observations
concerning facts and witnesses may be critical to winning the case, particularly
because you may be the only favorable eyewitness to certain facts.
89. The computer
"readout" on breath machine
tests must be 100% correct or it will be subject to being excluded
by the court upon proper motion filed by your attorney.
90. On the night
of your arrest, complete the DUI
client intake questionnaire found in Appendix F. Don't delay in doing
this. In the morning, supplement the form with any additional data that
you remember.
Chapter VIII
91. Radio frequency
interference may occur in police stations or in "mobile" testing
facilities and may cause several brands of breath
testing machines to give artificially high readings.
92. Because a
skilled DUI attorney "knows the ropes" it is always advisable
to utilize an attorney who is a specialist in DUI
case. Not only can the attorney assist in developing a strategy for
your case, but can also be instrumental in obtaining a more favorable
sentence if you decide to plead guilty or nolo contendere.
Chapter IX
93. A motion for
speedy trial forces the prosecutor to bring the case to trial, or suffer
a dismissal as a result of failing to meet the statutory deadline set
by state law.
94. By use of
a motion for a Bill of Particulars, a defense attorney may cause the prosecutor
to commit himself to a specific trial strategy. By narrowing the focus
of the trial, the defense attorney may be able to undermine the prosecutor's
case, leading to a dismissal of the charges.
95. Whenever state
law permits a preliminary hearing, the defense attorney may benefit from
using this pretrial hearing to obtain sworn testimony from the witnesses
for the prosecution which cannot later be changed or embellished to suit
the needs of the state's case.
96. A defense
attorney may use a motion in limine to suppress evidence to eliminate
the state's principal evidence against you in the case (the BAC
test result) thereby effectively winning the case.
97. When breath
testing machines are utilized by the state to obtain your BAC
reading, all documents relating to such machines should be subpoenaed
and closely scrutinized to determine if all calibration and inspection
has been followed to the letter. The failure of the state to comply with
the mandates of the operator's manual can lead to exclusion of the BAC
test results.
98. A motion for
disclosure under Brady v. Maryland will sometimes uncover potentially
exculpatory evidence which will effectively negate the state's evidence.
Chapter X
99. Where the
judge refuses to excuse a biased juror from the jury panel in your case,
such refusal will constitute reversible error in the event you are convicted.
100. Once the
state has put up all of its witnesses and evidence, and has "rested",
the defense attorney can seek to have the judge decide that the evidence
in the case is insufficient to support the defendant's conviction. This
is called a motion for directed verdict of acquittal.
Chapter XI
101. During closing
arguments, where the prosecutor argues to the jury using inflammatory
and impassioned arguments that are not relevant to the issue of the driver's
guilt or innocence, reversible error occurs.
Excerpted from
the book, 101 Ways to Avoid a Drunk Driving Conviction by William
C. Head, Esq. and Reese I. Joye, Jr., Esq.
Copyright 1991
by William C. Head and Reese I. Joye, Jr. Not to be reprinted, resold,
or redistributed for profit, except with written permission, but may be
freely distributed electronically provided that the entire file, including
this notice, remains intact.
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