“Stand up to your obstacles and do something about them. You will
find that they haven't half the strength you think they have.”
-Norman Vincent Peale
The Colorado Department of Transportation reports over 1,160 Driving Under the Influence (DUI) and Driving While Intoxicated (DWI) citations issued so far for the year 2016 - a 5% increase from last year, and we are only halfway through. After being faced with such charges, many people feel helpless and uncertain about their future. What they often don’t realize is that there are several ways to fight the charges, and it is crucial to take immediate action. The time between receiving the initial citation and facing the charges against you in court will probably pass by more quickly than you’d expect, and it is therefore critical to immediately analyze the arrest to determine whether grounds exist to challenge its legality. To assist with this analysis, we have put together several questions to consider after being charged and/or arrested for Driving Under the Influence.
Questions to Ask in the Aftermath of a DUI ARREST
1. Was the Stop Legal?
Most DUI Citations are a direct result of a lesser traffic infraction, such as speeding, following too closely, expired license plate, missing headlight, driving very slowly, or swerving between lanes. After pulling someone over, the police must be able to clearly identify the reason behind the traffic stop. This reason must also be documented in the subsequent arrest incident report. If the stop that resulted in your arrest for driving under the influence was illegal, then any evidence collected in the police’s investigation will not be able to be used against you in court and the charges will likely be dismissed.
2. Was the Field Sobriety Test Flawed?
Several field sobriety tests, such as the ability to recite the alphabet backwards or the walk-and-turn, have been successfully proven to be flawed in their ability to determine the level of a person’s impairment. Several factors can influence the reliability of such tests, such as being overweight, icy weather conditions, poor coordination, physical disability, or unstable shoes. With this degree of unreliability, it may be possible for you to discredit any evidence collected during these field sobriety tests.
3. Is there any available footage of the incident?
Sometimes the footage from a police officer’s dashboard contradicts the facts stated in the officer’s arrest report. Obtain any footage available from the scene of the arrest and the police holding area. If the events from the videotape do not match up with those accounted for in the police report, you may be able to contest the legality of the arrest.
4. Were the breathalyzer results accurate?
While a breathalyzer test results are often a more reliable indicator of a person’s level of intoxication than field sobriety tests, they too have their flaws. There are several variable independent to the amount of alcohol a person consumes that can affect the reading of a breath test, such as:
- Improper Calibration and Maintenance: Without proper calibration and regular maintenance, breath tests readings may artificially heighten a person’s actual level of intoxication.
- Malfunction: The equipment used for breath testing is not infallible. While it is admittedly rare, studies have shown that this equipment can be defective and provide fluctuating readings.
- Human Error: Incorrect administration of breath tests lead to incorrect readings. Carelessness, distraction or inexperience on the part of the administrating officer could result in defective readings.
- Medical Conditions: Certain health conditions and body traits sometimes cause people to naturally produce body fluids that breath tests mistake for ingested alcohol.
- Over-the-Counter Medicines: Since most breath tests are unable to distinguish between different types of alcohol, the consumption of mouthwash or other hygienic products can also produce heightened BAC test results.
5. Was the blood test properly administrated?
Blood alcohol content (BAC) tests are generally considered to be the most reliable indicator of a person’s level of intoxication; however, this method is also not infallible. There are several possible errors that can skew the results of a BAC into a false positive, which will often cause the case to be dismissed.
- Lack of experience or training in administering the blood test. Colorado requires people who draw and analyze the blood of others to receive proper training and licensure. If the person administering the blood test has not completed the prerequisite courses or has an expired license, you may be able to challenge the credibility of the test results.
- Old or Ill-Maintained Equipment. Given the nature of blood work, precision throughout the testing process is critical for accurate results. Just as with breathalyzer equipment, ill-maintained equipment may produce artificially heightened readings.
- Breaking the Chain-of-Custody. Once your blood is drawn, it will undergo several storage transfers. Any unaccounted break in the chain of custody could compromise the accuracy of the test results.
6. Were You Read Your Rights?
If an officer fails to read you your rights during the course of a driving under the influence arrest, any evidence obtained during the arrest will not be able to be used against you in court.
7. Did You Receive an Implied Consent Warning?
Although you may risk license suspension if you refuse to undergo a breathalyzer test, it is your right to do so and an officer may not demand, threaten or coerce you to consent to taking the test.
8. Were you arrested at a DUI checkpoint?
Colorado is one of thirty states that regularly employ sobriety checkpoints. While the Supreme Court has upheld the constitutionality of such checkpoints, the Supreme Court also prescribed several protocols that law enforcement officials must follow in order for the checkpoints to be considered legal. For instance, police are not allowed to pull a motorist over for evading the checkpoint by turning around or exiting the highway, as long as the means of doing so is not a traffic infraction in and of itself.
If any one of the mandated procedures goes unobserved, you may be able to argue that the stop was illegal. Additional protocols include:
Pre-Planning - Law enforcement officials are not allowed to conduct DUI checkpoints impulsively. The checkpoint site location and the specific protocols to be followed must first be reviewed by a judge and approved through an administrative order.
Uniformity - Each stop must be conducted according to the agency’s predetermined plan. The protocol will vary depending factors such as traffic volume, visibility, and the anticipated effect on traffic flow. If the protocol does not require every car to be stopped, it must provide for a non discretionary means of conducting the checkpoint, such as pulling over every tenth car.
High Visibility - Motorists must receive advance notice that they are entering a DUI checkpoint area through the visible presence of uniformed officers and their marked vehicles, portable or permanent lighting, safety cones and/or warning signs.
Alternative Plan - If variables such as inclement weather or traffic congestion make the preplanned method of conducting traffic stops impossible, the officers are allowed to use an alternative method so long as the reason is well-documented and the contingency method is preplanned.
Investigation Techniques - The uniformed officers involved in the checkpoint’s operation should be selected based on experience and training. It is important for the officers to follow prescribed investigation techniques, such as asking uniform questions aimed at dividing your attention by requiring you to do two things at once, i.e. retrieving your license and registration, or perform standard field sobriety tests.
If you find yourself overwhelmed in the aftermath of a DUI/DWI arrest, take comfort in the fact that you do not have to go through the process alone. The experienced and knowledgeable attorneys at Clawson & Clawson are here to aggressively defend your rights and help you obtain the most favorable possible outcome. Call (719) 634-1848 to schedule a free initial consultation with a DUI defense attorney today.
Action is a great restorer and builder of confidence. Inaction is not only the result, but the cause, of fear. Perhaps the action you take will be successful; perhaps different action or adjustments will have to follow. But any action is better than no action at all.
– Norman Vincent Peale