A Lawyer always and immediately looks like a hero if he or she gets a case dismissed because of a successful challenge to the Traffic Stop, or the Field Sobriety Tests, or the Breath or Blood Test results. While the focus of this article is not about the “minimizing consequences” aspect of “properly handling” DUI cases, it would be plain idiotic to ignore or otherwise fail to point out that when a charge is brought upon evidence strong enough to survive a legal challenge, A DUI Lawyer like me will put in almost heroic legal efforts that still produce wonderful results short of having a Judge just throw the case out.
These results may not be as glamorous as just “beating” the charge, but the efforts they require do spare a Client from loads of misery all the same. A real DUI Lawyer knows this, and producing exceptional results and seriously minimizing the consequences a Client will face in any and every case is just part and parcel of the job. On the other hand, a Lawyer who just “does” DUI cases may not even have a clue about such consequences, or that there are things that can be done to avoid or limit them.
To use another medical analogy, imagine a patient is brought into the Emergency Room, and, after some tests, the Doctor says “Mr. Jones, you have a whatchamacallit in your abdominal area, and I can make it go away if you take one of these pills every day for a week.” Great news for Mr. Jones, who leaves the hospital thrilled that he didn’t have to stay, or have surgery.
Imagine, however, that after his tests are run, the Doctor comes back to Mr. Jones and says “I’m sorry, sir, but that whatchamacallit in your abdomen is just too big to treat with medication; I’m afraid your going to have to have surgery to remove it.”
Once he has the patient on the table, the skilled Surgeon will minimize his incision, snip this way, and sew that way, all to make sure that Mr. Jones heals faster, has a quicker recovery, and has a smaller scar. Because he specializes in removing abdominal whatchamacallits, the Surgeon knows how to get Mr. Jones back on his feet sooner and with less down time and a smaller scar than might have been the case if a more general, trauma Surgeon had done the operation. He knows, in effect, how to minimize the as many of the negative consequences as possible of something that could not be avoided.
The very term “DUI case” itself means more than just the existence of a case-file in a Courthouse somewhere. A DUI case is the sum-total of the evidence that a person was, in fact, operating a motor vehicle while intoxicated, or at least impaired by the consumption of alcohol. The real “question” in a DUI case is just that: Did the person operate a motor vehicle after consuming enough alcohol to become “intoxicated” (.08 or above), or at least “impaired” (an amount BELOW .08, but usually higher than .04)? The “case” itself is the evidence collected by the Police to prove that.
While there are countless things that, in theory, can cripple a DUI case and lead to its dismissal, in the real world, these things tend to be concentrated in either the Stop (or, more broadly, the first Police contact), the Field Sobriety Tests (and the specific facts that led to the actual Arrest), and the Breath or Blood Test (and all the circumstances surrounding the administration of those tests, and the corresponding results).
The Traffic Stop is huge. Every fact accounting for why the Police came into contact with the Driver must be examined. Some cases are straightforward; a Driver is seen weaving, or the Police respond to an accident. Other cases are more complicated, such as when the Police zoom up on a Driver is response to a cell-phone tip. Still others are legal puzzles of the first order, and can involve things like someone being Arrested for a DUI long after the car has been parked and there is no one in it.
The Field Sobriety Tests are fertile grounds for challenging the validity of a DUI Arrest. In the first place, if there is any Police in-car video, it should be obtained and watched by the Lawyer. How well or poorly a person did on the FST’s is far better determined by watching them on video, rather than reading about them in the Officer’s Arrest Report. Add to that about a million other factors that can affect a person’s performance, and you have a recipe for a major-league inquiry. Was the ground flat, or wet, or slippery, or sloped? Was it cold, or hot, or raining, or snowing, or windy? Was the Driver on medication, or suffering from a medical or physical condition, or an illness or injury that could affect them (bad back, injured knee, overweight, sprained ankle, vertigo, or anything else) and put them at less than 100% of their best?
I’ve seen situations where a person has been ordered out of their car, on a cold, windy night, and not allowed to even put their shoes on before performing balance tests and the like. How reliable can any tests of their balance or coordination be in such a circumstance? If someone were to just read the Police Report, it would appear the Driver couldn’t walk straight line, or hold his or her balance. Once it’s realized that they were standing barefoot, in the cold, being blown around by whipping winds and shivering their behind off, then the test seems a lot less reliable as any kind proof or demonstration of their intoxication. Better still if that’s caught on video…
Breath and Blood Tests provide even more opportunities for things to go wrong for the Prosecutor’s case. There is an entire “operating procedure” governing how these tests must be done. Amongst them is how the Datamaster breathalyzer machine is calibrated (this must be done regularly), maintained, and used. The Police Officer operating it must be properly trained to do so, and there are innumerable other factors that can affect or distort the results when a person blows into it. A person with acid reflux, for example, can produce a dramatically higher test result than someone without it, even after only few drinks. Blood tests are no different…
Blood is supposed to be taken a certain way, and then placed into a tube, filled to a very specific level. A disc of sodium fluoride (the same fluoride used on teeth) is supposed to be dispersed in the collected blood to prevent the blood from fermenting. If this is not done, the alcohol in the blood sample will continue to ferment, and by the time the sample is actually tested by the State Police, the amount of alcohol within it may have increased significantly, and will certainly NOT be representative of a person’s BAC at the time they were driving. The process by which the collected blood is tested (usually mass spectrometry or gas chromatography) is highly technical, and observation of proper testing protocols must be observed.
DUI cases do not dismiss themselves. Most of the time, the flaws or problems in a DUI case that can be challenged successfully, and that may lead to a dismissal, or at least to a substantial reduction of the charges, can only be discovered after careful investigation. They are seldom obvious. It is certainly an advantage to have a skilled DUI Lawyer with years of experience review the evidence of any particular case and look for any flaws or problems.
In that sense, it is also a matter of numbers. A DUI Lawyer like me will handle more DUI cases and DUI related matters in the course of a few weeks than most general Practitioners will in any given year, or longer. As a result of all of those experiences with DUI cases, a DUI Lawyer learns to look for things that the general Practitioner might not even know exists, or how it works. Because of the DUI concentration of my Practice, and having had to explore issues concerning the integrity of a blood sample and how that affected it being tested on the gas chromatograph or the mass spectrometer I really had to learn the workings of those machines, and their limitations. A Lawyer who merely “does” a DUI case here and there, however, will never likely see an issue like this, and will probably never have the opportunity, much less the reason, to study the nuances of the science behind blood testing.
To “handle” a DUI case means to “properly handle” it, and to “properly handle” it means, first and foremost, carefully and critically examining every single bit of evidence of the case in an attempt to find any and everything that can reasonably be challenged in an effort to defeat the Police and the Prosecutor’s case.
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