Top Defenses to a DUI Charge



Being charged with Driving Under the Influence of drugs or alcohol is a serious offense. If convicted of DUI, a driver can lose his or her license and be ordered to pay monetary fines and serve time in jail. While facing DUI charges can feel overwhelming, you don’t have to do it alone.

The attorneys at Berry Law are experienced in defending DUI cases and can advise you on your rights and responsibilities. There are many complex issues involved with fighting these charges. Hiring an experienced attorney will result in the best possible outcome for your case.

Each time a driver in Nebraska gets behind the wheel of a motor vehicle, he or she is giving implied consent to submit to a chemical test if suspected of DUI. When an officer has reason to suspect a motorist of driving under the influence of intoxicating liquor or drugs, they will request a breath or blood test to use as evidence.

A driver has the right to refuse to submit to a chemical test when pulled over under suspicion of DUI, but there are consequences for doing so. Refusing a breath or blood test will result in suspension of a driver’s license and driving privileges for at least a year. A driver’s refusal of a breath or blood test will also likely be brought up at trial and could damage a potential defense.

In most situations, it’s best not to try to argue the results of a chemical breath, blood, or urine test on your own. Let your attorney examine the evidence and build a defense against the charges you’re facing. The following are some common DUI defenses in Omaha:

Illegal Stop or Arrest

Law enforcement must have reasonable cause to pull a vehicle over or detain a person under suspicion of DUI. The Fourth Amendment protects citizens from unreasonable search and seizure when they are lawfully minding their own business.

Police cannot act off of hunches or pure suspicion to justify pulling a vehicle over. Driving at night or driving away from a bar or other establishment where alcohol is served are not lawful reasons to stop a driver. In some cases, police have waited for patrons to leave a bar or restaurant before pulling them over. Without some other reason for the stop, any evidence gathered is generally inadmissible in court.

Driving with an expired tag or a broken taillight are violations that give police reasonable cause to stop a vehicle. When there is suspicion of DUI, these types of stops are often described as pretextual because the officer has some pretext other than the traffic violation itself for the stop. Law enforcement may also argue that witnessing a vehicle bobbing and weaving, crossing left of center, or driving unusually slowly are signals that the driver may be intoxicated.

If an officer doesn’t have reasonable cause to believe that a driver is operating a motor vehicle while under the influence and pulls them over anyway, an attorney could argue that the stop was in violation of a defendant’s Fourth Amendment rights. They could file a motion to suppress evidence collected during the stop, including the results of a breathalyzer.

The state has the burden of proving that any evidence obtained following a traffic stop was done so lawfully. Under what’s known as the Exclusionary Rule, if there was no basis for the stop itself, all evidence collected after a motorist is pulled over is inadmissible in court and charges may be dropped.

The same principle applies to probable cause for making an arrest of a DUI suspect. A defense attorney can present evidence to the court that shows probable cause did not exist prior to an arrest. An officer is required to have evidence to support his or her suspicion of DUI before arresting an individual, such as:

  • Smelling alcohol on the driver or in the vehicle
  • Traffic violations consistent with intoxication
  • Horizontal Gaze Nytagmus (an involuntary jerking of the eyes as the eyes gaze to the side)
  • Impaired Speech
  • A lack of balance when exiting the vehicle

Police sometimes make mistakes when arresting a DUI suspect, including failing to properly read his or her Miranda rights. Once in custody, an officer is obligated to advise a suspect of his or her right to remain silent, consult with an attorney or have one appointed to them, and that anything they say can be used in court.

The burden is on the state to show proof that Miranda rights were properly read. Otherwise, any statements made by the defendant following his or her arrest can’t be used as evidence in the case against them.

Denied Right to Counsel

A driver suspected of DUI has certain rights, including the right to refuse to answer police questions pertaining to where they’ve been, where they’re going and what they’ve had to eat or drink. The right to remain silent and have counsel present during questioning doesn’t end just because a motorist is pulled over. Drivers are only required to provide an officer with their license and registration.

DUI suspects have the right to consult an attorney at any time before or after an arrest. If they are denied that right, the state must prove that allowing the suspect to consult an attorney would have directly interfered with the investigation. As soon as a driver asks to consult an attorney, police questioning must stop.

In some cases following a DUI arrest, an attorney may advise his or her client to immediately obtain an independent chemical test that can later be used for comparison with the state’s evidence when building a case. Since the window of time for an independent test to be collected is short, denying a suspect the right to counsel could also be seen as a violation of his or her right to seek an independent test.

Legal counsel could argue that the defendant in a DUI case was denied his or her right to consult an attorney, which can result in the suppression of collected evidence or dismissal of the case.

Inaccurate or Invalid Field Sobriety Test

The Federal government and The National Highway Traffic Safety Administration (NHTSA) have identified certain standardized field sobriety tests as accurate indicators of a driver’s impairment. These tests are intended to be standardized from stop to stop and between law enforcement agencies across the country. Unfortunately, improperly administered tests are common. An attorney can argue as such by requesting that field sobriety tests be suppressed as evidence in a DUI case.

Problems arise when a standardized test is not instructed, administered, or performed exactly the same way each time it’s used. Therefore, field sobriety tests may not be accurate predictors of impairment at all. Some studies suggest that these tests only have a 60 to 70 percent accuracy rate.

When used to assess individuals with disabilities, who are overweight, or elderly, field sobriety tests have been deemed to be completely invalid. Additionally, some police departments use field sobriety tests that are not recognized by the NHTSA, federal government or other law enforcement agencies to be accurate indicators of intoxication. These tests may not demonstrate impairment at all.

Failure to Show Proof of Operation

If a DUI suspect was not operating a motor vehicle at the time of the DUI investigation, he or she has not broken any laws. An attorney may be able to present evidence that his or her client was not in control of the vehicle if the impaired individual was pulled over on the side of the road or sitting in a parking lot. Using the car as shelter before being sober enough to drive is not a crime, even in cases where the keys are in the ignition.

If the defendant in a DUI case was not driving, a court may not be able to find them guilty of Driving Under the Influence since they weren’t driving impaired.

Rising Alcohol Defense

Alcohol is absorbed into the bloodstream differently based on an individual’s gender, weight, stomach contents, and medical conditions. It takes roughly 30 to 90 minutes for alcohol to be fully absorbed, and while this is happening, the blood alcohol content (BAC) slowly continues to rise. This is referred to as a rising alcohol level (RAL).

An attorney might argue that the timing of any chemical test administered is crucial to showing whether his or her client was actually driving under the influence. If a driver consumed alcohol shortly before getting behind the wheel, his or her blood alcohol content can be assumed to have been relatively low when they were operating the vehicle. It had likely risen over the legal limit by the time the driver arrived at the police station for a blood test.

Some attorneys will advise a client to seek an independent chemical test for comparison to the state’s evidence for this reason.

In some cases, defense attorneys may also try to challenge the results of Breath Alcohol Testing or breathalyzer tests. Breathalyzers are used to detect particles of breath alcohol in a driver’s lungs and provide a preliminary measure of blood alcohol content to an officer in the field. The results are later confirmed at the police station by a blood test.

Breath Alcohol Testing is an indirect measurement of blood alcohol. Administrator error, such as failing to maintain or calibrate the breathalyzer before use, can result in inaccurate readings. Because eating, drinking, burping, vomiting or smoking within 15 minutes prior to taking a breathalyzer can affect the results, officers are supposed to observe the suspect during that window, but many times do not.

With a 10 percent margin of error, attacking the accuracy of a breathalyzer test may be a tempting defense, but the reality is that it will likely be followed up with a more accurate blood test. A breathalyzer test alone is not sufficient for determining the levels of alcohol in the blood.

Contact an Attorney for Your Defense

Only an attorney with experience defending DUI cases can look at the evidence and recommend the right defense for each situation. If you’ve been charged with DUI, consulting an attorney at Berry Law is the first step to getting back to normal.

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