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Defenses to a DUI Charge

Possible Defenses to a DUI Charge may include the following:

1. Illegal Stop

An illegal stop happens when the police officer does not have reasonable suspicion that a crime has occurred or will be occurring. if the traffic officer observes a traffic violation then that is probable cause to stop the vehicle. If the officer has reason to suspect that the driver may have consumed alcohol, the officer may question the driver regarding the officer's suspicions. These may be based on the fact that he smells the odor of alcohol or the driver exhibits bloodshot watery eyes and slurred speech. If the officer does not observe a Traffic violation then there is no reasonable basis for the officer to make the stop of the vehicle. This would be the basis for a motion to suppress any evidence collected because the stop was unlawful.

2. No Probable Cause to Arrest

In order for a person to be taken into custody the police officer must have probable cause to make the arrest. Probable cause is a reasonable person would believe that a crime was committed and the person more likely committed that crime. When a police officer makes an arrest without probable cause any evidence that the police officer of tangs is subject to suppression. That means the court will not allow that evidence at trial and without evidence the charges must be dismissed. 

3. No Evidence of Driving

In order to be convicted of a DUI, there must be proof that the person was driving the vehicle. usually this would be established by observation of the police officer. He would see a vehicle that he would stop and then approach the driver. This is the most frequent way that a person is charged with a DUI. Sometimes police officer would be informed that a driver may be driving intoxicated. When the officer shows up nobody is in the vehicle. Oftentimes when there's only one person around the police officer assumes that person was the driver. The obvious question that they would ask is where you driving the car. The officer observes bloodshot watery eyes, slurred speech, and the odor of alcohol. If the person says I was not driving the car the officers still May conduct their DUI investigation assuming that was the person driving the vehicle. The average person when asked if they were driving the car would answer yes. Sometimes the officer arrives at an accident scene and nobody's in the vehicle but people are standing around. This would lead to the same circumstances asking who was driving the car. This circumstance may lead to a DUI being dismissed without proof of driving.

4. Denial of Right to Counsel

When anyone is being questioned by the police they have a constitutional right to have a lawyer present or to consult with a lawyer. During the police officers investigation if the suspect says I want to call my lawyer or I want to talk to my lawyer or I need a lawyer the questioning by the officer must stop and the person be allowed to contact a lawyer. If the officer refuses to allow a person to contact a lawyer and continues their investigation the DUI is subject to dismissal for this constitutional violation. A police officer may not allow a suspect to call a lawyer if it was substantially interfere with their investigation. If a person asks to call and the investigation is at a point where it would interrupt the investigation then the phone call must be made as soon as possible.

5. Violation of Miranda Rights

When a person is taken into custody and questioned about a crime- Miranda Rights should be advised. Custody means a person is not free to leave. Those are a person has a right to have an attorney present they have a right to remain silent anything said might be used against them in a court of law. During a DUI investigation, even though a person may not be free to leave, the court has ruled that this is not an arrest so Miranda advisement is not required, and the officer can acquire evidence of intoxication. A person is not required to answer the police officer's question and should choose to remain silent. When Miranda rights apply during a DUI is when the person is arrested. Questioning after the arrest requires the Miranda advisement and when it is not given then any evidence or incriminating statement should be suppressed.

6. Right to Independent Test

Often the DUI investigation will include a breath test for alcohol content, blood test, or urine test. These tests may be conducted but an accused has a constitutional right to collect their own evidence. This means the accused can obtain their own breath, blood or urine test. In order for them to do so requires the person to go to a hospital. Because alcohol dissipates rapidly, time is of the essence. The police have an obligation to conclude their investigation and release the person so that they may obtain their own test as quickly as possible. When a person is not released then this ability to get an independent test is thwarted and may result in the suppression of the police obtained test results. 

7. Improper Field Sobriety Exercise

The police often conduct balance and coordination exercises that they refer to as field sobriety tests. These may include walking on a line, touching the nose, or raising a foot. Another of these tests is to follow the point of a pen with the eyes. This is called horizontal nystagmus. The field sobriety exercises are used by the police to determine how well a person follows direction and that the person was attentive. The police like to refer to these as determination of divided  attention. Field sobriety tests are not required and are voluntary which means a person does not have to perform them and may choose not to do them. Each test has a proper procedure to make their performance valid. Should the police officer deviate from the procedure is improper and may cause the use of the field sobriety exercises to be prohibited by the court.

8. Improper Deprivation Period

The use of a breath machine to measure any alcohol consumption requires that a 20 minute observation of the subject take place before starting the test. This is called the deprivation period. It's purpose is to see if the subject placed anything into their mouth or regurgitated. It has been found that mouth alcohol given a false result as the test is for deep lung air. Should someone burp or cough during this period then another 20 minute deprivation period must begin. If the police officer fails to begin a new deprivation period after someone burped the breath test results may be invalid. Invalid test could result in the suppression of the breath test results.

9. Implied Consent Violated

Persons traveling the roadways of Arizona automatically give their consent to search their body for evidence of alcohol in a DUI case. This consent is implied because of their use of the roadways. When a police officer is conducting an investigation for DUI they may request the suspect driver to participate in a breath or blood test to be chosen by the officer. The Arizona Motor Vehicle Department has produced a form for the officer to read to the driver concerning the breath or blood test. A person is free to refuse to take a test but the consequences of a refusal will result in a substantial suspension of their driving privilege. Should an officer fail to read the advisement or misinform a driver as to the implied consent then the mandatory license suspension for a DUI is vacated.

Contact Brian Di Pietro Law, PLLC. Arizona's Most Experienced, Tough Lawyer for DUI/DWI Criminal Charges!

Attorney Brian Di Pietro has successfully represented many clients who had been charged with DUI/DWI. His success is a result of his 38 years of criminal law both as a prosecutor and defense counsel. He is familiar with the case law applicable to the charge of DUI/DWI and is able to use this knowledge combined with his aggressive approach to defending his clients that have resulted in the favorable resolution for his clients. Contact him now at 623-242-2655 for a free confidential case evaluation about your DUI/DWI charges in Arizona.

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