Anyone facing a DUI understands that the breathalyzer results are very important. Those numerical results are supposed to equate to a person’s Bodily Alcohol Content (BAC), and are used by the Police and Prosecutors to show that that a person was “under the influence” or “over the limit” in any Drunk Driving Case. Beyond that, once a person’s BAC has been measured at the Police Station, they are not released until that number has fallen low enough to be sure the Police aren’t responsible for letting an intoxicated person out of their care and custody.
In my DUI Practice, this number is important to me for a variety of reasons. It goes without saying that any DUI Lawyer, like me, looks at that number with the hope that it can somehow be challenged in a way that makes the whole DUI charge collapse. In this article we’ll briefly examine the whole notion of challenging the breathalyzer.
I have pointed out that not every DUI charge can be easily “knocked out” because of some catastrophic breathalyzer problem. This is a phrase that we’ll repeat a number of times throughout this article. I simply will not set up shop and “cash in” by selling, and telling people, what they want to hear, as opposed to telling the truth. And the truth is that not every single DUI case can be dismissed on some breathalyzer technicality. It angers me, however, that this tactic claims so many people who are vulnerable, and just hand over their money to someone disingenuous enough to smile, and take it.
In a prior article entitled Michigan DUI – How the Rich and Famous Beat the Charges,” I pointed out that, in most cases, they don’t. I think that’s a fact worth repeating. If these charges could be beaten by simple persistence, then every single celebrity and person of fame would just plunk down the cash to “Lawyer up” and get the case dismissed. Yet, almost every day, we hear of someone famous getting charged with DUI, and, sometime later, you hear about them being placed on Probation.
Because not every DUI charge can be easily dismissed.
Consider, for a moment, the garden-variety DUI charge. The Officer will claim to have observed the Driver swerve or in some way drive erratically. Sometimes, these observations are made (or at least claimed) after a cell-phone tip. When the person is pulled over, the Officer notes all the usual characteristics of DUI driving. Fast-forwarding a bit, after being taken to the Police Station, the end result is usually a breathalyzer (BAC) score of over, if not well over, the legal limit of .08.
Sure, there are evidentiary problems that can occur at any stage of a DUI Arrest. It is imperative for me, as a DUI Lawyer, to put the entire case under the microscope and look for any problems with the evidence. Not every single case has a significant enough defect in the evidence, however, to cause a Judge to declare “Case Dismissed! To put it in layman’s terms, the evidence, or how that evidence was obtained, has to be pretty screwed up for a Judge to just decide that it cannot be used at all, and throw a Drunk Driving charge out of Court.
The usual safety net for a Judge is to simply declare that the challenge to the evidence does not affect its admissibility (meaning it gets in), but can be presented to the Jury as far as weight and credibility (meaning the Defense Lawyer gets argue to the Jury that the evidence isn’t good or reliable enough, and the Prosecutor gets to argue that it is).
And this in turn means nothing. Every bit of evidence, in any Criminal case of any kind, can be challenged as to weight and credibility. The recent Casey Anthony Murder Trial in Florida is a great example.
In that case, there was all kinds of evidence of the little girl not being reported missing for 31 days, and the decomposed body being found with duct tape, and the mother’s car being found with a stench like a body having decomposed in the trunk, and tons of other things. All of this evidence was admitted. The Defense, however, did a wonderful job of challenging its weight and credibility. In fact, the Defense convinced the Jury to not give the evidence enough weight to convict the Defendant, and thus she was found “Not Guilty.”
This means that, quite often a successful challenges to the evidence take place at a Trial, where the evidence has been admitted (meaning, conversely, that the Judge did NOT exclude it).
Usually (but not always), finding a significant evidentiary problem requires a careful and critical analysis of the evidence. Many times, a Police mistake is not obvious, and you can bet the Police, in “writing up” a case, won’t be pointing out any mistakes they made, or anything else that makes their Arrest look questionable. That said, as of this writing, I am dealing with a case right now where a Client had been pulled over and asked to take Field Sobriety Tests. He declined, and he is legally allowed to. He asked the Officer “what’s the point?’ because he was sure he would not be over the legal limit. Back at the Station, he blew a .06. Despite that, he was charged with OWI.
The evidence in this case will be challenged, and I expect to see the DUI charge collapse. This, however, falls into the category of exception, and not rule.
In my Practice, where I handle the full spectrum of DUI’s, from 1st Offenses, 2nd Offenses, and 3rd (Felony) Offenses, I often hear how a person felt let down in their 1st Offense case, despite the hopeful (and expensive) “sales pitch” of the Lawyer they hired, who made it sound like he or she was going to ride in and get everything dismissed. The net result, of course, was that no such thing happened, and, feeling rather “burned” by the exalted claims and stratospheric Fees charged by their first Lawyer, and now being a much more educated consumer, they respond to my more realistic approach.
Typically, I learn a lot by interviewing a new Client for a 2nd Offense DUI. Of course, this means they had a prior within 7 years. Because I wasn’t the Lawyer for that prior case, I need to ask them about the most recent. The information I get in response, and which I’ve heard again and again, is enlightening.
The Client usually, and somewhat apologetically, explains that they’re a little skeptical of the whole legal profession after their prior experience. They’ll note that they “hired this guy” who charged them a King’s ransom and made it sound like they’d go in there and get the whole case dismissed, or “knocked down” to some non alcohol-related Offense. They’ll then tell me that the case dragged on for months (not a bad thing, in and of itself), and the end result was that they took a plea to a DUI, or were found guilty of one. They feel they were promised things that didn’t come true, and that they were misled. And soaked for a boat full of money, as well. They’re understandably suspicious of Lawyers.
I tell them that a better way of thinking of it is that they bought into what they wanted to hear, rather than what they needed to hear. And what a person needs to hear is the truth. A person should be prepared, from the start, for every outcome, including the worst-case scenario (in many DUI’s, and especially in 1st Offense cases, that isn’t so bad, anyway). Hiring a Lawyer and banking (while breaking the bank, so to speak) on the exceptional outcome in a DUI case is not a bet that would get good odds in Las Vegas. The smart money would not be betting on a “Case Dismissed!” outcome in every case.
In my Office, I charge a flat Fee for a DUI, knowing that most of them are going to play out a certain way. If there is evidence to challenge, then that will be explained to the Client, who will be in a position to decide, along with me, if spending some extra money on pursuing such a course of action is appropriate. As a matter of course, if I bring such an issue to a Client, I am certain it is worth pursuing. And as it turns out, such fortunate situations are, as you might guess, the exception, and not the rule.
The evidence in every DUI case must be examined thoroughly. There are no real shortcuts to properly handling a DUI. In those cases where the evidence can be questioned, if not excluded, the Lawyer can sometimes use that as leverage for a plea deal to a non-alcohol related Offense, sparing the Client all the consequences and hassles that accompany a DUI. Finding those situations is the product of careful, critical analysis of the case as a whole, and each of its numerous components.
Breathalyzer results can be a goldmine of opportunity for a DUI Lawyer, but as with any kind of precious metals mining, you have to go through a lot of rock and dirt to find a little of the good stuff. In other words, striking gold takes work. Gold just doesn’t build up n the surface, waiting to be picked up by the handful. You have to dig…
However, you’ll never find that gold unless you start digging.