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DUI Defenses

Marietta and Cobb County DUI Defense

DUIs are said to be more complicated than many felony cases. Ben has found this to be a true statement, as there are dozens of ways that a DUI charge can be challenged both before trial and at trial. Some of the more common defenses are described below.

The Initial Traffic Stop

Most DUI cases commence with a police officer stopping someone for an alleged traffic infraction. The most common offense that Ben sees being used to justify a traffic stop is failing to maintain lane. Others include speeding, failing to use a turn signal, improper turns, disobeying a traffic control device and improper stopping. 

The first thing that should be examined in a DUI case is whether or not the stop of the vehicle was legal. This can normally be done by reviewing the dash cam video from the officer's patrol vehicle. However, not all police cars are equipped with dash cam videos, and in those cases it will be a credibility contest between the officer and the driver.

When the video reveals an illegal traffic stop, this can be asserted as a basis to suppress, or exclude, all the evidence obtained following the stop. This argument would be advanced in a pretrial motion to suppress, where the prosecutor has the burden of proving the legality of the stop. If the trial court finds that the stop was illegal, this will normally mean that the prosecutor will not be able to proceed in prosecuting the driver, and the case will be dismissed.

The Preliminary Investigation

Police officers are trained on investigating suspected intoxicated drivers from the moment they observe the traffic violation justifying the stop, the manner in which the driver responds to the blue lights and mannerisms they observe when they interact with the driver. Officers are trained to use their ears, nose and eyes to detect clues of an impaired driver.

One very powerful tool that a DUI lawyer like Ben utilizes at pretrial motions and at trial is exposing all the clues that the officer did not observe when they investigated his client. For example, the officer is trained to listen out for slurred words and for people having difficulty understanding and answering questions. If the officer did not observe those clues in a driver, that must be pointed out to the judge or jury hearing the case. This helps support the argument that the driver was not intoxicated.

If used successfully, an experienced DUI lawyer can point out a litany of clues that the officer failed to notate in his police report. Additionally, if there is videotape evidence in the case, oftentimes the video evidence will refute what the officer wrote in his report or testified to under oath. For example, if the officer claimed that the driver had difficulty walking to the back of his or her vehicle, yet the video shows the driver walking normally, this raises some credibility problems with the officer.

Particularly in a case where the driver is charged with DUI-less safe, either because the driver refused to provide a breath/blood/urine sample or had a BAC under the legal limit, showing the jury all the indications that the driver was not impaired can make or break the case. However, even in a DUI-per se case, it is still important in a pretrial motion to suppress to assert that the officer lacked probable cause to arrest the driver for DUI. If the judge agrees with that contention, all evidence obtained from that point forward is inadmissible and the case will not be able to be prosecuted. 

Field Sobriety Tests and Alcosensor

Challenging the reliability of the field sobriety tests is described in more detail here. This is a hugely important aspect of a DUI case when the driver submits to them. Field sobriety tests are completely voluntary, however. 

When the reliability of the field sobriety test results is challenged, this can be the basis for an argument that the officer lacked probable cause for the arrest. It can also serve as a basis to argue that the results of the particular test are not admissible at trial, even if the officer otherwise had probable cause for the arrest.

Many people confuse the two types of breath testing equipment utilized by law enforcement. Most law enforcement officers carry with them in their vehicle what is called the alcosensor device. This is a handheld machine that the officer directs the suspect to blow into. The device will then register a reading with what is purportedly the BAC level. However, the actual numerical reading is not admissible at a DUI trial, only whether it registered positive or negative for alcohol.

One problem with the handheld device, as well as the official breath testing equipment (described below), is that the reading by heavily skewed by the amount of residual mouth alcohol the person blowing into the device has. Someone who drank a beer five minutes before blowing will register a reading on the device way, way higher than what is actually inside their bloodstream. Officer are trained to not use the device on a suspect when it has been less than 20 minutes since the person last consumed alcohol, but this is oftentimes ignored.

The Implied Consent Warnings

When a driver has been arrested for driving under the influence, the arresting officer is required to advise the driver of the implied consent warnings. These warnings advise the driver that they are being asked to submit a breath, blood or urine sample, and that if they refuse to do so their driver's license may be suspended. 

The implied consent warnings must generally be provided as soon as a suspect is arrested. If the officer waits too long without any justifiable reason for delay, the subsequent results of the test, or the refusal, is not admissible at trial. 

The warnings must also be provided in a manner that the suspect understands. Therefore, if the officer "speed reads" the warnings to a driver and thereafter refuses to reread them, the driver will have a good argument that his consent, or refusal, was invalid. 

One part of the implied consent warnings advises the driver that, if they first submit to the State-administered blood, breath or urine test, they can then invoke their right to have an independent test conducted at their own expense. If the officer fails to honor the driver's right to an independent test, this can present grounds for suppression of the results of the State-administered test.

The Intoxilyzer

The official breath-testing device used by law enforcement is the Intoxilyzer. The newest model of this device, the Intoxilyzer 9000, is now in use. These devices are typically located at the jail where the driver has been brought after being arrested for DUI and consenting to provide an official breath sample.

There are numerous aspects of this process that may be relevant in fighting a DUI charge where someone is accused of blowing over the legal limit. It is vital in these cases to obtain the calibration and maintenance records of the device to ensure that it was in proper working order when used in the particular case. If the calibration was off or if the machine was not properly maintained, this could lead to exclusion at trial the results of the provided breath sample.

Similar to the problem with the alcosensor device, the results of the Intoxilyzer can be skewed by residual mouth alcohol. By the time the driver has been placed in front of the this machine and asked, or ordered, to blow into it, it has more than likely been more than 20 minutes since the last alcoholic beverage was consumed. Nevertheless, residual mouth alcohol can still be present in a person that recently belched or suffers from abnormal acid reflux. In these cases, expert testimony is usually required to present a defense.

If you have been arrested for DUI, get an experienced lawyer working on your case immediately. Contact Ben for a free consultation.

"Without a Doubt the Best"

"I would highly recommend Ben. There were not any surprises or extra costs. He was very clear on what to expect. Even more impressive was what happened before I went to court and while in court, everything happened exactly as Ben had told me it would. When I was in the court room and Ben needed to make things happen, he was so articulate I felt as though I had an entire team of lawyers."

"Truly an attorney with not just intellect but heart!"

"When Mr. Goldberg came into my life, he went against all odds, believed in my innocence, fought for my justice, and supported me as my lawyer and my friend. I personally believe that when Mr. Goldberg chose to practice law, his goal was not money nor prestige, but was only the well-being of the client. More specifically, he values the lives of the individuals he represents and provides them with the best defense to see to it that justice is served."

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