Back in May 2015, we looked at some of the common defense tactics that DUI defense attorneys consider in drunk driving cases, with the emphasis being on the pretrial considerations such as the officer’s observations, motivations and conduct during the period from the initial traffic stop to the arrest.
The actual pre trial hearing, trial or driver’s license hearing, however, are the most important stages of a drunk driving defense, and as you may expect it can feature several defense approaches. We will examine some of these below.
Were there any problems with the police investigation and observations?
Although scrutinizing the investigation is also part of the pretrial defense preparation, in the courtroom it can benefit the defense to call upon and reinforce the jury’s preconceptions and personal experiences by offering alternative explanations to what the police officer’s observations were. For example, many people have drank alcohol before driving without believing that they were impaired at that time; others may have their own ideas about how difficult it can be to perform field sobriety tests even when sober.
A good DUI defense lawyer will show that some behaviors that the officer relied upon as the basis of reasonable suspicion for a traffic stop have more innocent possible explanations than impairment. There can be other reasons than alcohol for why a driver may be weaving in his lane, or driving slowly, or making sharp or wide turns, some of which the jurors may be familiar with. The same applies to the physical characteristics of the defendant that the officer recalls, such as offering other reasons why the driver’s eyes were red, or why he was fumbling for his wallet, or why his clothes looked disheveled.
The objective of offering these and other alternate explanations is not to deny that the police officer saw something, but to raise questions about whether what he saw was really evidence of drunk driving. Giving the jury opportunities to empathize with the defendant can help to establish a reasonable doubt about the conclusions of the investigation. Remember, it is the government’s job to prove the case beyond a reasonable doubt.
Can the field sobriety test results be challenged?
Challenges to field sobriety tests usually take one of two forms: questioning whether the officer properly instructed the defendant before administering the test, and raising doubts about whether the officer properly administered the test itself. Again, some jurors may see these tests as being difficult to take regardless of the level of intoxication, and that they are therefore purpose-designed to cause those taking them to look uncoordinated. If the officer’s instructions can be made to seem ambiguous or confusing, or if the jury believes that the officer rushed through the tests or otherwise did not administer them fairly or consistently, this opens an avenue for that critical sense of reasonable doubt that can lead to an acquittal in a criminal prosecution. Very rarely do we see the tests administered correctly (Every attorney as well as our full time staff Private Investigator at the Hunsucker Legal Group has been certified to administer field sobriety tests and John is also an Instructor of the NHTSA Standardized Field Sobriety tests) Moreover, the general public doesn’t understand what junk science the tests really are. They will rely on studies that were not true scientific studies where the participants were limited, the officers were not observed at all times during the administration of the tests to ensure they were administered properly and that a majority of the participants were almost twice the legal limit in some of the studies. Some of the studies were done in a clinical setting with plenty of light with subjects who had no fear of being arrested versus roadside, at night with people who are nervous about being arrested.
As the years have passed, NHTSA has released new manuals where they have added or removed requirements without any further studies. For example, initially the manual stated those persons 50 pounds or more overweight are not good candidates to take the test. This was later removed without any further studies.
Were there any problems with the breath test?
In previous posts we have looked at some of the ways that breathalyzer tests can possibly give results that are not completely reliable, such as “salting out” of expired test kits or a variety of physical variables in those who provide samples (physical size and weight, the presence of residual alcohol in the mouth, whether the sample came from the upper or lower airway, gender differences, and more).
The upshot of these and other trial defense techniques – we cannot cover them all in a single blog post – is not to defeat the prosecution’s evidence in detail, but to provide enough questions for the jury to ponder about the officer’s conduct, the conduct of the investigation, the methodology used to determine that the defendant was intoxicated and the technology used so that the at least some of the jurors will harbor doubts about whether the prosecution has in fact met their burden and proved its case. An experienced drunk driving defense attorney will be able to offer many such opportunities for doubts to arise if the officer or the government has done not done their job.