Successfully defending against a DUI charge depends on first recognizing that many cases can have potential defenses to the DUI charges. Below is a partial list of possible defenses:
- Lack of Driving or Actual Physical Control.
In Arizona the State must establish you were driving or in actual physical control of a vehicle while impaired. In some cases there are no witnesses to testify who was driving a vehicle and then the State may be unable to meet its burden of proving the accused was driving or was in actual physical control.
- No Reasonable Suspicion to Stop.
An investigatory stop is unconstitutional if the stop is not supported by reasonable suspicion that criminal activity is afoot. Thus, if the officer lacked a constitutionally valid reason for making the traffic stop, all evidence of drunk driving obtained as a result of the unlawful stop must be suppressed.
- No Probable Cause to Arrest.
The Officer must have reliable information which would lead a reasonable person to conclude that criminal activity has been or is being committed at the time of the arrest, otherwise the arrest is unconstitutional and the case must be dismissed.
- Improperly Administered Field Sobriety Tests (FST's).
The National Highway Traffic Safety Administration (NHTSA) has established guidelines regarding the administration of FST's in order for the results to be valid. They are Horizontal Gaze Nystagmus (HGN), Walk and Turn, and the One Leg Stand. NHTSA has set forth guidelines regarding Field Sobriety Tests (FST). The tests should not be given if the suspect:
- is 50 pounds or more overweight
- is 65 years of age or older
- has any back, hip, leg, knee, or ankle injuries
- has any disability effecting balance (past head injuries); and/or
- is wearing shoes with heels two (2) inches or higher
- Your attempting to do the FSTs are voluntary and you can refuse to do any of the field sobriety exercises mentioned above. Police attribute poor performance to possible intoxication and few people can perform the tests perfectly. Police tend to score and report your performance on the FST's toward you being DUI, without taking into account the interest of Officer, nervousness, unnatural tasks, poor instruction for field sobriety test, and unfavorable conditions of environment.
- Denial of the Right to Counsel
When a DUI person requests a lawyer, the police must provide you with an opportunity to speak with a lawyer telephonically as soon as is reasonably possible.
- Violation of Miranda Warnings
Prior to any questioning by law enforcement officers of a person in custody or the person must be warned that: (a) he or she has a right to remain silent; (b) any statement he or she does make may be used as evidence against him or her; (c) he or she has the right to the presence of an attorney; and (d) if he or she cannot afford an attorney, one will be appointed for him or her prior to any questioning if he or she so desires.
- Inaccuracy of the Breath Testing Device
For the test to be valid, the testing procedure must be followed and the device must be calibrated and also the Standard Quality Assurance Procedure (SQAP). If any of the maintenance checks appear out of tolerance, then the breath tests administered can be suppressed.
- Portable Breath Testing Devices (PBT)
You may refuse to blow into a PBT as they are not allowed in Court to state that a person has a certain measurement of alcohol present in their body, due to the device's scientific unreliability.
Is a breath-testing machine manufactured by C.M.I. to analyze your breath sample through an infrared spectroscopy to determine the amount of alcohol present. There are issues of potential accuracy and reliability of the Intoxilyzer. Consequently, there are many ways to challenge the breath result.
- Portable Breath Testing Devices (PBT)
Subtractive retrograde is a method to compensate for any alcohol consumed shortly before driving that could show a higher reading at the time of the test than "at the time of driving." This is because usually a person requires between 30 minutes and hours to completely absorb alcohol.
- Deficiencies in Blood Alcohol Testing & Issues in Blood Cases
Results of blood alcohol testing are admissible if the State can establish the blood was drawn by qualified personnel and the particular scientific analysis utilized complied with scientific standards and any deficiencies may require the test results to be suppressed.
- Denial of Independent Test
A person has a due process right to collect independent scientific evidence of their blood alcohol concentration (BAC). Independent chemical tests are exculpatory evidence and the State may not unreasonably interfere with your reasonable efforts to gain such evidence.