101 Ways to Avoid a Drunk Driving Conviction

Excerpted from the book, 101 Ways to Avoid a Drunk Driving Conviction by Atlanta DUI lawyer William C. Head, Esq. and Reese I. Joye, Jr., Esq.

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

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.

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 FSTs to see what level of impairment you may have, and avoid driving at all if you have difficulties performing the tests.

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).

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 FSTs, and (in most states) don’t blow into a PBT 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 FSTs or blow into a PBT, 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 FST, 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 FSTs).

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.

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.