What defenses are there in a DUI case?
Potential defenses in a given drunk driving case are almost limitless due to the complexities of the offense. Roughly speaking, however, the majority can be broken down into the following areas:
1. Lack of Driving or Actual Physical Control. Intoxication is not enough: the prosecution must also prove that the defendant was driving or in actual physical control of a vehicle while impaired to the slightest degree for reason of alcohol consumption or with a BAC of .10 or more within two hours of driving. This may be difficult if, as in the case of accidents, there are no witnesses to his or her being the driver of the vehicle.
2. Lack of Reasonable Suspicion to Stop or Probable Cause to Arrest. Evidence will be suppressed if the officer did not have legal cause to (a) stop, (b) detain, and (c) arrest. Sobriety roadblocks present particularly complex issues.
3. Miranda. Incriminating statements may be suppressed if warnings were not given at the appropriate time.
4. Deficient "Implied Consent" warnings. If the officer did not advise you of the consequences of refusing to take a chemical test, or gave the prescribed instructions incorrectly, this may affect admissibility of the test results -- as well as the license suspension imposed by the motor vehicle department.
5. Subjective Nature of the Offense/Erroneous Nature of the Evidence. Most crimes involve tangible evidence -- a quantity of illegal drugs, a body, a gun, a knife, etc. An alleged violation of 28-1381(A)(1), Driving while impaired to the slightest degree, relies almost exclusively on the subjective and unverifiable impressions of the arresting officer. The officer's observations and opinions as to impairment can be questioned. The circumstances and procedures of the Field Sobriety Tests can also be called into question. The strong tendency of the police officer to reinforce his arrest decision with "facts" conveniently corroborative of that decision can be attacked. Also, DUI arrests translate to thousands of overtime dollars for the involved officers. This fact is relevant to a motive on the part of the officer to err on the side of arrest in close cases and should be brought to the jury’s attention. Furthermore, an alleged violation of 28-1381(A)(2), having an unlawful BAC within two hours of driving, will also rely an test results that are highly questionable. A breath test has one compelling -- and erroneous -- assumption: That all test subjects are "average." The only truly "average" person is a woman, Chinese and dead
6. Blood-alcohol concentration. There exists a wide range of potential problems with blood, breath or urine testing.
A. Inherent Margin of Error. The Intoxilyzer 5000 has an acknowledged 10% margin of error -- that is a twenty percent range of error. In other words, on its best day, when the device is calibrated and deemed to be operating properly, it will have a 10% +/- margin of error.
B. Core Body Temperature Variation. The Intoxilyzer 5000 assumes that every test subject has a core body temperature of 37 degrees C. and an expired breath temperature of 34 degees C. For each degree above this assumed average, test results will be 6.8% higher than the subject’s actual blood alcohol level as measured by the breath reading. This problem tends to be exaggerated by the circadian effect -- the later after rising that one is tested, the higher their core body temperature will be. Given that most DUI arrests occur after midnight, this is a substantial factor. State witnesses will be forced to admit they don’t have the slightest idea of what a given test subject’s body temperature might have been at the time of the test.
C. Non-specific and Cumulative Analysis. The Intoxilyzer 5000 is an Infrared Spectrophotometer utilizing a process which measures the methyl "tail" of any hydro-carbon molecule detectable at the 3.39 to 3.48 infrared micron wavelength or "stretch". The device is NOT specific for ethyl alcohol. There are hundreds of these hydro-carbon compounds on the breath of an alcohol free subject. Not only does the machine not differentiate between these compounds, it reads them cumulatively as ethyl alcohol.
D. Partition Ratio Variation. As mentioned earlier, the Intoxilyzer 5000 assumes a 2100-to-1 ratio in converting alcohol in the breath to alcohol in the blood. As in the case of core body temperature, the machine assumes that all test subjects are "average." In fact, this ratio varies widely from person to person (and within a person from one moment to another). By way of illustration, if a person blows a .10 test result, and that person’s actual partition ratio at the time of testing is 1500-to-1 rather than the presumed 2100-to-1, their actual blood alcohol level will be closer to .06 -- a level below the legal limit.
State "experts" will argue that, given the so called "breath standard" of "1 gram of alcohol per 210 liters of breath," the partition ratio is "irrelevant" because the state need no longer prove blood alcohol content of "1 gram of alcohol per 100 liters of blood." This argument can be easily attacked because alcohol on the breath can not impair a person. Alcohol can only impair a person after it reaches the central nervous system through the blood. Accordingly, with respect to the issue of impairment, breath alcohol is only "relevant" to the extent that it purports to be an indication of alcohol in the blood. Fortunately, while the legislature is free to manipulate the law, they are limited in their ability to manipulate science!
E. Linearity Problems. By it’s very nature, infrared spectrophotometry will have problems with linear validity. In other words, the machine will not be as accurate at extremely low blood alcohol levels as it might be as one approaches the legal limit of .10%. This problem is illustrated by the fact that Arizona Department of Health Services regulations allow for a measurable volume (.01 grams) of alcohol to be detected in a subject known to be alcohol free!
F. Radio frequency interference. Radio Frequency Interference or "R.F.I." can result in inaccurate readings. While the Intoxilyzer 5000 purports to have an "R.F.I. Detector" that will void a test subject to radio frequency interference, these detectors are not tested and calibrated at commonly used frequencies nor are they tested on varying horizontal and vertical planes.
G. Testing during the absorptive phase. This is a corollary of the rising alcohol defense. Alcohol can not effect or impair a person until it reaches the central nervous system -- the brain. Alcohol can not begin the process of reaching the brain until it is absorbed into the bloodstream. The blood, breath or urine test will be unreliable if done while you are still actively absorbing alcohol (it takes 45 minutes to three hours to complete absorption; this can be delayed if food is present in the stomach). Thus, alcohol consumed within forty-five minutes before driving might be reflected in a BAC test performed an hour or so after driving is concluded. But, those "last drinks" could not have effected your driving because they were unabsorbed at the time of driving.
H. Retrograde extrapolation. This refers to the requirement that the BAC be "related back" in time from the time of the test to the time of driving and relates to the absorptive phase/rising alcohol defense referred to in 19(6)(G) above. Again, a number of complex physiological problems are involved here including gender, body weight, what alcoholic beverages were consumed and when.
7. Regulation of blood-alcohol testing. The prosecution must prove that the blood, breath or urine test complied with state requirements as to calibration, maintenance, etc., and was in proper operating condition at the time of the test. Through the proper use of discovery, the defense can often unearth "foundational" deficiencies with respect to the state’s chemical evidence. What doesn’t get into evidence can’t hurt you at trial.
8. License suspension hearings. A number of issues can be raised in the context of an administrative hearing before the state's department of motor vehicles. Most importantly, given the limitations imposed on a defendant’s right to engage in pre-trial discovery, the D.M.V. hearing is an excellent discovery tool and allows the defendant an opportunity to commit state witnesses to a "story" under oath.
However, from a practical standpoint, a defendant ("Petitioner" in the administrative proceeding) will almost invariably lose at the D.M.V. hearing.
There are many reasons for this: The same Administrative Law Judge sits as both judge and prosecutor -- his or her inclination is to always uphold the suspension/revocation of your license.
Furthermore, a D.M.V. hearing is a civil, rather than a criminal, proceeding. Accordingly, the procedural safeguards inherent in a criminal proceeding (e.g., burden of proof, ability to "retro" test results, reliance on the inherent margin of error, etc.) are unavailable in a D.M.V. hearing. Nonetheless, D.M.V. hearing should be insisted upon because they are valuable discovery tools.
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