101 Ways to AVOID a Drunk Driving Conviction

How to Get Out of a DUI

By: William C. Head, DUI Lawyer Atlanta -Author of 101 Ways to Avoid a Drunk Driving Conviction

Sadness, remorse, and “feeling guilty” after your DUI arrest do not win cases! – How to AVOID a DUI

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! There is no time for a “pity party.” This article outlines how to get OUT of a DUI charge.

DUI-DWI is America’s ONLY crime of degree

Driving under the influence, in America, is a CRIME OF DEGREE. By that, I mean that an adult can drink some alcohol, and be perfectly legal to drive, so long as his or her ability to drive has not been affected by the alcohol consumed (or medication or drugs taken). This impairment factor is WHY every DWI-DUI case deserves review by a knowledgeable, skilled, and determined DUI lawyer. You don’t need a novice to this area of law — which includes all lawyers who have tried fewer than 25 trials as a criminal defense lawyer. Inexperienced attorneys, (in my opinion) will overlook — or not even KNOW — the available DUI defenses without substantial trial experience. DUI laws are very specific, and are often counterintuitive. Don’t assume that every criminal defense attorney will know the law and the DUI strategies that win cases.

What is the minimum level of competency of a DUI lawyer for your case?

A criminal defense attorney who has handled at least 25 trials will have likely handled hundreds of drunk driving cases, with many of the cases having the DUI reduced to reckless driving, or totally dismissed. Most of these reductions or dismissals are based on a 4th Amendment violation, a Miranda violation, or an illegal DUI checkpoint. Each case that is negotiated, or resolved after a pre-trial motion hearing or in a trial, is part of the “education” of the criminal lawyer defending a DUI.

Take these steps FIRST after getting out of jail

Posting bond, getting out of jail, and protecting your right to drive (by filing a legal challenge (appeal) to the administrative license suspension or administrative license revocation in some jurisdictions) are the first steps to take to protect your right to drive. The ALS or ALR appeal typically keeps you driving legally, although (in the past decade) some states have added the requirement of installing an ignition interlock device, as a condition of being allowed to drive.

Over half the states now have some DUI law provision for adding an interlock for first offenders, and some jurisdictions mandate putting the device on the person’s vehicle to be able to drive to and from work (and other limited purposes). In Texas, a repeat offender cannot get his or her car back until an interlock device is installed, during the pendency of the DWI case.

IMMEDIATELY handle your driver’s license suspension appeal

Your DUI attorney can assist you in filing the license suspension appeal, but rules about this differ from state to state. In North Carolina, payment of a $100 appeal fee by your DUI lawyer lets you drive until your criminal case is resolved. In Georgia, the drunk driving lawyer who sends the DDS appeal with the $150 filing fee is considered responsible (liable) for getting the letter done correctly, and filed in a timely manner. You can do this yourself, as long as you follow all the rules, and send the letter appealing the proposed suspension or revocation and the filing fee on time, with proof of delivery. Hence, expect to pay your criminal lawyer to get him or her to sign on as your legal counsel and properly handle this very important matter.

Some states require a filing fee to be paid (like NC and GA, shown above), while others do not. Additionally, the time frame for getting the appeal letter filed VARIES from 5 to 30 days. Plus, some states count “calendar” days, and some states count “business” days (e.g., weekdays that are not holidays.) As you can see, this is a TRAP that can prevent you from being allowed to drive.

DON’T guess at your final day to appeal! DON’T delay this important step. Get the assistance of a top DUI lawyer and file your administrative appeal ASAP. It is a quick and simple process, but being able to provide PROOF of delivery is critical, to protect your driving privileges.

How to beat a DUI – Every aspect of your attorney’s DUI investigation is seeking to uncover errors

DUI lawyers with decades of experience begin looking at EVERY case with an eye toward locating errors made by law enforcement officers. A competent attorney will provide a questionnaire that is often used to help DUI clients “jog” their memory. Plus, an initial DUI questionnaire will document the “memory” of the accused citizen, and establish a baseline of the DUI driver’s retained information to be compared to a police videotape that will be obtained later, or to the police report. DETAILS win drunken driving cases, and these details often help your criminal attorney create DUI strategies to win your misdemeanor DUI or DUI felony case.

Areas of concern for the dedicated DUI attorney fighting your case typically include these 12 tips on your drunk driving lawyer’s tasks for finding the answer to beating your DUI:

  1. The legality of the police encounter, whether at a DUI checkpoint, an alleged traffic violation, an accident, or possibly parked in a parking lot with the engine off, where you were “sleeping it off” until the next day
  2. Issues of coercion or unlawful detention, by virtue of the officer extending a traffic stop beyond the time needed to issue a traffic ticket or warning
  3. The sequence of events, such as an officer reading the implied consent warning before any field tests were given, or an officer ordering a driver to exit the vehicle even when no odor of alcohol or marijuana is noted, and then conducting a pat down
  4. Proper screening of the suspected DUI driver for ocular health conditions, contacts, a glass eye, or other eye issues, before starting the eye tracking test (the HGN test)
  5. Proper orthopedic and “ability to balance” screening of a DUI detainee before the walk and turn or one leg stand evaluations
  6. Reviewing the language used to convince the detained driver to participate in sobriety tests, which are 100% voluntary, and cannot be coerced
  7. Searching for videotape evidence that the police do not have, possibly from a business or building which was near the traffic stop location
  8. Coordinating expert analysis of an accident scene with an accident scene expert, to look for causes of the accident that led to your arrest, in an effort to negate claims that the wreck was the driver’s fault
  9. Using open records requests, statutory discovery motions, subpoenas, and possibly court orders to gather beneficial evidence for the criminal case, such as the officer’s training records, disciplinary records, DUI checkpoint supervisory approval documents, or 911 call records
  10. Talking to eyewitnesses, getting interior premises camera footage, or reviewing detailed bar and restaurant tabs to show the number of drinks you consumed
  11. Coordinating the gathering of medical records and pharmaceutical records of your prescribed medications
  12. Negotiating with the prosecutor, which (at times) means meeting with the law enforcement officer to seek a non-DUI disposition such as reckless driving or some other lesser traffic offense.

 

ALWAYS quiz your DUI lawyer on his or her breathalyzer knowledge and training

If you submitted to testing, and were given a breath test that showed you were over the limit, your DUI defense lawyer must know HOW to fight the breath machine results. Through filing pre-trial motions in limine, and to suppress evidence, your DWI lawyer may be able to have the trial judge exclude all test results due to an implied consent error. Barring that being accomplished, a trial may take place, where the breath machine is a key part of the government’s evidence against you. Your DWI attorney needs to know how to neutralize that evidence, in the eyes of the jurors or the judge (if a bench trial or non-jury trial is the option available).

Are all breath test instruments the same? Beating the breath test in an OWI-DUI-DWI case

No, all breathalyzers are not the same. Different technology and patents are used on all brands. The goal of all devices is the same: to accurately capture, analyze, and report the person’s breath alcohol test results on a printed evidence card or document. This physical proof of results will be offered into evidence at your trial like the results of a blood test would be, if blood had been drawn and collected in vials before being vaporized, and the volatile chemicals within the blood test being analyzed and reported out by an analytical forensic device.

The four brands of US-made breathalyzer devices are:

  • Intoxilyzer
  • Intoximeter
  • Draeger
  • Datamaster

Intoximeters, Inc. bought National Patent, the owner of the Datamaster brand a few years ago, to become the world’s largest manufacturer. A few states allow police departments to use any breath test device on the federally-approved evidential breath testing products list. Other states limit their police forces to one breath testing device, and to a specific model number.

By way of example, the state of Georgia once had the Intoximeter 3000 breath device (made by Intoximeters, Inc.) as its sole and exclusive breath tester, from the 1980s until December of 1994. Next, the Intoxilyzer 5000 (made by CMI, Inc., the owner of the Intoxilyzer brand) was the only approved device in GA. That authorization ended on December 31, 2014. Now, the Intoxilyzer 9000 breath test machine is Georgia’s sole, approved breathalyzer device.

The state of South Carolina has had different versions of the BAC Datamaster since 1991. North Carolina has earlier versions of the Intoxilyzer machine, for the Intoxilyzer 5000. In the last decade, North Carolina abandoned use of the Intoxilyzer brand, and bought the Intoximeter IR II devices. Florida went from the older Intoxilyzer 5000 to the newer Intoxilyzer 8000 model. Alabama abandoned the Intoxilyzer 5000 in the late 1990s after extensive testing showed the unreliability of these devices. Alabama then purchased Draeger model devices, because these were the only devices sold in America that adjusted for breath temperature.

ALWAYS quiz your DUI Lawyer on his or her certifications on field sobriety test training

Until 1994, DUI defense attorneys had no access to courses on field sobriety test training as used by police. I sponsored the first training in America, in Atlanta, in July of 1994. Since then, the availability of training courses has grown to the point that a dozen or more courses per year are offered across America annually. About 1 in 20 DUI attorneys in America (+/- 5%) have taken the time and money to obtain this invaluable training course, and he or she should be willing to show you his or her certificate. (Mr. Head’s FIRST “Student” certificate is posted below.)

The BASIC course has been called the “Practitioner” course for about the last decade. Previously, it was called the “Student” course from 1984 to 2002. Then NHTSA changed the course “title”, but it is still the same type of course, and involves 20 or more hours of class time and training by an Instructor-level trainer.

In addition, issuance of an SFST manual, multiple demonstrations, and supervised administration of the tests in class precedes proficiency testing on dosed tests subjects (by each student, who is graded), to be able to pass the course. Passing the written exam is another component of the basic course training.

Less than 1% of all DWI-DUI lawyers in America have obtained their SFST Instructor certificate. This field sobriety test Instructor training course requires at least 32 hours of instruction and training on how to TEACH the SFST course to others. A completely NEW and more comprehensive Instructor Manual is utilized, and the slides used for instructing are included. All of the attorneys in our DUI law firm in Atlanta, GA have completed the course, because we know that this additional training provides our top drunk driving lawyers with more knowledge (for our clients’ benefit) on how to get out of a DUI.

Invaluable list of 101 specific, proven tips on how to get out of a DUI charge – from Mr. Head’s Book

Although this book is currently out of print, Mr. Head has set forth below the list of the 101 Ways to beat a DUI from his book. A skilled criminal defense lawyer should be able to “translate” these for you, if a specific DUI defense matches up to your case’s facts. Experience in the “battlefield” (the courtroom) is where a top-rated DUI lawyer learns these methods, and comes to know the ways on how to NOT get a DUI conviction.

Find one of the best DUI-DWI lawyers in YOUR state now. Call toll-free 844-832-6384 day or night, 7 days a week.

Here are 101 Ways to AVOID a Drunk Driving Conviction

  1. 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.
  2. 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.
  3. 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.
  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. 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.
  5. 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 (such as “Formula 409™” cleaner), 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.  Always get an independent test or tests, if your state law allows two types to be obtained.
  6. Existing “illegal per se” laws in 49 states and D.C. 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.  See our blood alcohol calculator.
  7. 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.
  8. At a jury trial, if the trial judge incorrectly instructs the jurors about inferences (making it irrebuttable or mandatory), such instruction constitutes reversible error. Many cases that involve reversals get dismissed or reduced to a non-DUI disposition.
  9. 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).
  10. 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.
  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 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.
  12. 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.
  13. Where state DUI law requires it, failure of the police to timely advise 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.
  14. 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.
  15. 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.
  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 “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.
  17. Where the state’s breath testing machine is subject to error of +/-0.01% this margin of error (sometimes called “sampling variability”) can be used to show that the required threshold (which is an element of the state’s case) is missing. Many states have statutes or regulations that require two samples of breath and mandate that the two samples must correlate to within 0.020 or each other. With an expert witness to explain shoddy breath test program oversight, a not guilty verdict can be obtained.
  18. Where good reason exists to refuse the state’s test, such refusal generally will prevent the state from using a numerical breath or blood test reading against the defendant, 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 can be as onerous as the penalties for a 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, 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.
  22. 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.
  23. 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.
  24. 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.
  25. 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.
  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 “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).
  28. 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.
  29. 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.
  30. 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%.
  31. 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 (such as Nyquil®) 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).
  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, overweight 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 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.
  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 alternatives. Change what you drink and remain sober longer.
  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 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.
  39. 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.
  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.
  41. Make sure that you and all your passengers are wearing seat belts, and that no distractions in your car (such as rowdy passengers, a loud radio or CD player) would draw police attention to your vehicle or possibly cause you to not concentrate on driving. Do not use cell phones, light cigarettes or reach down to change channels on the radio and risk committing a minor traffic offense that may get your car pulled over.
  42. Use turn signals with every lane change and turn, and do not use your high beam lights at all on the entire trip home. Keep your speed at the limit or below, because DUI task force officers will use any excuse to pull your vehicle over for purposes of seeing if you have any alcohol on your breath.
  43. If you are pulled over by the police, don’t get out of your car unless required to do so by the police officer, because you may incriminate yourself by conduct which the officer will later testify indicates intoxication (e.g., being unsteady on your feet, or holding onto the door or frame of the car as you exit). If you have provided all necessary documentation for a traffic ticket to be written, and the officer still asks you to get out of your vehicle, ask WHY. If the officer says something about wanting to make certain that you are safe to drive home, politely advise the officer that you do not wish to participate in any VOLUNTARY field sobriety tests (NOTE: in some states, field tests are no longer voluntary).  If the officer insists, or starts to TAKE YOU OUT, politely ask to be permitted to call your drunk driving lawyer since you consider this to be an arrest.  Then, remain silent and avoid conversation.
  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 driving while intoxicated conviction. Once you have stopped your vehicle, an officer exercising his or her community caretaking functions can stop, too, and needs no reasonable suspicion of a crime occurring to legitimately come in contact with you. Be smart and avoid a needless risk of arrest by stopping your vehicle for such reasons.
  47. Don’t ever try to elude an officer or leave the scene of an accident with an occupied vehicle because such conduct can provide a separate and independent basis for a felony vehicular homicide (or vehicular manslaughter) charge.
  48. If you receive a traffic ticket for a moving violation, and not a DUI citation, don’t press your luck by continuing to drive after receiving it. 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.
  49. If you are stopped at a roadblock or otherwise have a verbal encounter with police have your license and other documents in hand and offer these to the officer. A small pocket recorder will capture any conversation between you. [NOTE: Some state laws (i.e., Maryland, Florida and others) prohibit recording any person without his or her permission. Don’t violate your state’s privacy laws to gather this evidence.]  Never admit to having consumed alcohol. Don’t perform voluntary field sobriety tests, and don’t blow into a voluntary portable breath testing device without first speaking to a DUI-DWI attorney, unless the officer advises you that jail time or license loss sanctions will be imposed for refusing to do so.  A state-specific Driver’s Rights Card usually covers what needs to be told the officer about your willingness to cooperate on tests at the scene of the  traffic stop.
  50. If you receive a traffic ticket for a moving violation, and not a DUI citation, don’t press your luck by continuing to drive after receiving it. 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 or otherwise have a verbal encounter with police have your license and other documents in hand and offer these to the officer. A small pocket recorder will capture any conversation between you. [NOTE: Some state laws (i.e., Maryland, Florida and others) prohibit recording any person without his or her permission. Don’t violate your state’s privacy laws to gather this evidence.]  Never admit to having consumed alcohol. Don’t perform voluntary field sobriety tests, and don’t blow into a voluntary portable breath testing device without first speaking to a DUI-DWI attorney, unless the officer advises you that jail time or license loss sanctions will be imposed for refusing to do so.  A state-specific Driver’s Rights Card usually covers what needs to be told the officer about your willingness to cooperate on tests at the scene of the  traffic stop.
  52. If you are involved in an accident after having had something to drink (or after taking any type of medications), don’t talk to anyone at the scene about the details of the accident. If he or she inquires, tell the officer that you are injured and cannot take any field sobriety tests. If anyone else was injured or killed, refuse all tests and remain silent until you can speak to your DUI-DWI lawyer.
  53. Regardless of the cause for the “stop” NEVER admit prior alcohol consumption. If pressed about consumption, simply ask if you are under arrest. Regardless of the answer, politely state that you will be glad to speak or perform any field evaluations once your drunk driving lawyer gets to the location.  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 that you must blow into a portable breath testing device, only do so IF the officer advises you that you will face a jail sentence or loss of your license 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 to determine your blood alcohol level, ALWAYS insist on your own independent 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. In some states courts have ruled that an officer who has been asked to assist the detained person to get an independent test MUST offer meaningful assistance including permitting the person to obtain cash from an ATM or calling friends or family to bring cash to the hospital.
  56. If the police deprive you of your freedom of movement (has you detained and in ‘custody’) and then elicit answers from you to their incriminating questions without first giving your Miranda warnings, your attorney may be able to suppress any answers to police questions made by you while in custody. CAUTION: Blurting out unsolicited information (e.g. telling the officer that you know people in government who will have his job for arresting you) without being prompted by the officer’s questions will generally NOT be subject to being excluded under Miranda.
  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 DUI-DWI lawyer 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 this voluntary field sobriety test).
  58. Before taking the official state-administered blood, breath or urine tests, ask if state law permits you to FIRST speak with an attorney. Some states permit a limited right for you to do so, and you should always exercise this right. Many people who are driving in a state other than the state where their driver’s license was issued can refuse testing and not have any repercussions in their home state insofar as loss of driving privileges for refusal.
  59. If the officer launches into a driving under the influence investigation, ask him or her if a video or audio tape is being made of the conversations between you and the police officer. Recordings are the very best evidence of your true condition at the roadside. Such recordings will document an officer’s missing or defective implied consent warnings can cause test results to be excluded from evidence. Without the tape, a jury often will believe the officer’s testimony over yours, if you claim that his or her description of what happened is not accurate. Some courts have rendered favorable court rulings that hold that where a recording existed but was destroyed by the police prior to trial (destruction of evidence) that the case can either be dismissed, or the field test evidence and/or incriminatory statements excluded, or (at the very least) the jury must be instructed that they must assume that the tape would have been favorable to YOU, had the police not destroyed it.  This is called a “spoliation” jury instruction.
  60. If requested to take the “official” state breath test and/or blood test, your delaying tactics or insistence on speaking with a DUI-DWI 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 or license suspension.
  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 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.
  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 driving under the influence. 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 your attorney’s DUI client intake questionnaire. Don’t delay in doing this. In the morning, supplement the form with any additional data that you remember.
  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 drunk driving attorney “knows the ropes” it is always advisable to utilize an attorney who is a specialist in driving under the influence 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.
  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.
  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.
  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.

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

The best DUI-DWI lawyers in YOUR state have used all 101 ways above to win lots of drunk driving cases. Call and speak to a veteran attorney near you at toll-free 844-832-6384 day or night, 7 days a week. FREE consultations and payment plans are available.

 

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 electronically distributed provided that the entire list, including this notice and the website link http://www.drunkdrivingdefense.com, remains intact.