Below is an article written by Attorney Christopher Parker-Cyrus.
“10 WAYS TO BEAT A DUI CASE”
FIGHTING AN ILLEGAL SEIZURE OR STOP The Fourth Amendment of the United States Constitution protects against unreasonable searches and seizures. A “stop” of a vehicle begins whenever a police officer detains an individual. Generally, such a detention of a driver occurs when a driver realizes that the officer has his lights flashing and that the driver is no longer free to continue driving. There are many issues that may arise in relation to the stop or detention of a driver of a vehicle. In order for the detention of a driver to be considered a legal and valid detention or stop, the officer must have had facts causing him to suspect that the driver had committed or was committing a crime or a violation of a traffic law. If the officer did not have this reasonable suspicion, then, the stop or detention of the vehicle was illegal.
CONTESTING OBSERVATIONS OF THE POLICE OFFICER AFTER A STOP Police officers will always note observations that they believe indicate impairment by alcohol or drugs. They follow a set of guidelines that are outlined in a report, such as an Alcohol Influence Report. Typical observations include “watery or bloodshot eyes, slurred speech, the odor of alcohol, and swaying while standing, etc.” As an example of contesting an allegation of proof of impairment due to watery or bloodshot eyes, it can be argued that these symptoms can be caused by many things other than alcohol or drugs, including fatigue, smoke, contact lenses, illness, lack of sleep, etc.
FIGHTING ADMISSIONS/STATEMENTS MADE BY A DRIVER THAT HAS BEEN DETAINED BY POLICE Many individuals believe that a police officer is required to explain his or her rights. Actually, a police officer is not required to read a person’s rights under the United States Constitution or under the United States Supreme Court case of Miranda v. Arizona. In 1966, “Miranda Rights” were stated by the United States Supreme Court when it decided the case of Miranda v. Arizona, 384 U.S. 436 (1966). The law is that statements made in response to questioning by law enforcement, while a person is in custody, will be admissible in any criminal trial only if the prosecutor is able to prove that the person was advised of his or her “Miranda Rights” before interrogation began. The key issue is the person’s right to consult with a lawyer before being subjected to that interrogation. If the person was not advised of his or her right against self-incrimination prior to the interrogation, his or her statements cannot be used against him or her in a criminal trial.
ATTACKING THE FIELD SOBRIETY EXERCISES The Field Sobriety Exercises are the tests that are given to a person, at the roadside, when he or she is suspected of being under the influence of alcohol. These include the following: a. Horizontal Gaze Nystagmus, which is done by moving a pen from side to side directly in front of the person’s eyes. The examiner is looking to see if the person’s eyes begin to jerk and how quickly they begin to jerk. b. Walk and Turn, where a person is instructed to walk 9 steps in a line, make a specific turn, and walk back to the starting point. c. One Leg Stand, where a person is instructed to lift one of his or her legs 6 inches off of the ground while maintaining his or her eyes closed and to count. d. Finger to Nose Test, where a person is instructed to close his or her eyes and follow the police officer’s instructions, alternatively touching his or her left and right forefingers to the tip of his or her nose. The best procedure to follow to fight against the results of the police officer is to carefully review those results, which must be written on a report that is completed by the police officer administering the Field Sobriety Exercises. Each detail of each exercise is important.
CONTESTING THE BREATH TESTING PROCEDURES In Florida, the legal limit of the blood alcohol or breath alcohol level of a person is .08. If a person registers above .08, he or she is presumed to be guilty of DUI. However, the breath testing procedures can be attacked and the case can be won even if the person’s result was above .08. First, it is relevant how long before the breath test the person was arrested. If as much as three or four hours have passed, then, the breath test is arguably not admissible in a trial. Second, the police officer that administers the breath test is required to observe the person for at least 20 minutes prior to the breath test to ensure that the person has not taken anything into his or her mouth, regurgitated, etc. because this could affect the breath test. Third, the police officer must receive two valid breath samples that are within .020 of each other. Otherwise, the breath test results cannot be admitted into evidence in a criminal trial. Fourth, the police department and the Florida Department of Law Enforcement are required to do maintenance on the breath machine each month and each year. If the prosecutor cannot prove that the required maintenance has been done, the breath test results cannot be admitted into evidence in a criminal trial.
ATTACKING THE BLOOD TESTING PROCEDURES Although a blood test is said to be the most accurate type of test in a DUI case, it must be done properly for it to be admissible in a criminal trial. For example: a. Unless there is an accident causing serious bodily injury, a police officer must receive consent from a driver before having a blood test done. b. The individual conducting the draw of the blood to be tested must have the proper qualifications to conduct the blood draw, such as a nurse or a certified paramedic. c. The prescribed rules for the preservation of the blood must be followed. d. The “chain of custody” of the blood must be strictly observed after the blood is drawn.
FIGHTING A DUI CASE WHERE THE DRIVER REFUSES A BREATH, BLOOD, OR URINE TEST Prior to offering a breath, blood, or urine test to a driver, a police officer must read “Implied Consent” to the driver. In Florida Statute 316.1932, the “Implied Consent” law is stated: “Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by so operating such vehicle, deemed to have given his or her consent to submit to an approved chemical test or physical test including, but not limited to, an infrared light test of his or her breath for the purpose of determining the alcoholic content of his or her blood or breath if the person is lawfully arrested for any offense allegedly committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic beverages.” If the police officer does not advise the driver of “Implied Consent” prior to any alleged Refusal of a breath, blood, or urine test, the alleged Refusal of the test is not a valid Refusal.
CONTESTING A DUI CASE WHERE THERE HAS BEEN AN ANONYMOUS REPORT OF DRUNK DRIVING In a case where there has been an anonymous report of drunk driving or erratic driving, the police officer legally cannot stop the vehicle based on that anonymous report alone. After locating the vehicle, the police officer must make an independent observation of a law violation that corroborates the anonymous report. If no such corroboration exists, a Motion to Suppress Evidence because of an illegal stop must be filed and argued in court.
ATTACKING A CASE THROUGH THE RIGHT TO SPEEDY TRIAL A person charged with a criminal offense has the right to a speedy trial. This means that, except where the person or his or her attorney has agreed to waive that right, the person has the right to have a trial within a certain period of time. For a misdemeanor charge in Florida, the period is 90 days. For a felony charge in Florida, the period is 180 days. If the specified period of time expires without the person either waiving his or her right to a speedy trial or the person’s trial beginning, then, he or she has the right to pursue the process for a dismissal of the case.
FIGHTING A DUI CASE BY NEGOTIATING WITH THE PROSECUTOR In every DUI case, a prosecutor will be assigned to the case. Just as an individual’s own attorney will review the case and fight for that person’s rights, the prosecutor will also review the case in order to prosecute. The investigation of the case includes obtaining all reports on the case, a list of the witnesses, the breath test card, the Implied Consent Form, the police patrol car video, and more. By finding weaknesses and defenses in the case of his client, a qualified and experienced attorney will do everything possible to convince the prosecutor handling the case to either dismiss the case or reduce the charge to one that is less serious than DUI.
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