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If I Am Arrested for DUI/DWI, Do I Have Any Defenses?
Upon failing a field sobriety test (e.g., walk in a straight line) or a DUI/DWI test, you will generally be arrested and charged. However, there are defenses that may invalidate the DUI charge and it may even be dismissed from court. Some typical defenses:
- Insufficient evidence for arrest
The arresting officer's observations often determine whether an arrest will be made. For example, bloodshot eyes or slurred speech are telltale signs of a DUI. These "personal opinions" are questionable in court. For example, bloodshot eyes may simply mean that you had little sleep or that you have allergies, and you can argue that the officer was unreasonable in assuming you were drunk.
- Being arrested even though you weren't in the act of driving
This is a common defense when you are pulled over by an officer while getting into your car, while stopped on the side of the road, or just after arriving home. Most states allow an officer to arrest for DUI without seeing the act of driving intoxicated, but some states do require the prosecution to prove you were driving at the time of the arrest.
- Illegal traffic stop or procedure
A police officer must have probable cause to pull you over; otherwise, the stop is illegal and the DUI charge may be dismissed. Note, however, that an officer who pulls you over for an unrelated violation (e.g., a busted taillight) does not need probable cause to ask if you have been drinking. Also, anybody can be stopped at a sobriety checkpoint without cause. Not being given your Miranda rights (e.g., right to remain silent, etc.) may or may not invalidate a subsequent DUI/DWI test.
- "Rising BAC" defense
A person is guilty of a DUI if their blood alcohol level is above the limit at the time of driving, not at the time of being tested. Alcohol takes time to work through your system. So for example, your blood alcohol level may be below the limit upon being pulled over, but be above the legal limit if the test is given 10 minutes later. The longer the time between being stopped and giving a DUI test, the more likely this defense may work.
- Improper testing
Improper use of DUI/DWI tests can completely negate the test results. The most common tests are breath, blood, and urine tests.
Should I Contact a Lawyer?
Even if you don't think any of these defenses may work, you should still contact an experienced DUI attorney. There are other defenses available depending on your situation. Attorneys who specialize in drunk driving cases may have many other defenses available for you.
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Last Modified: 09-26-2016 07:44 PM PDT
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