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DUI Defense Strategies

DUI charges have been beaten with these defense strategies

Far too often, individuals charged with DUI or drunk driving believe there is no defense to the charge. There are many defenses, however, that may be appropriate – and can help you successfully defend your drunk driving charge.

My experience has identified several general defense strategies as the most successful for drunk driving and DUI cases in Michigan. Every DUI case is different and no single defense or group of defenses is appropriate for every case. Because of this, it's important for your DUI case to be reviewed by a qualified attorney to determine whether your case could be challenged.

The first step toward determining which of the literally hundreds defense strategies is best suited to your case is to complete our free case review. Once you do that, I can review your case in detail and recommend the best DUI defense.

Depending on the facts of your DUI case, one or more of the following defenses may apply:

  • Chemical Test Instruments Used Were Inaccurate
  • Your Blood Alcohol Was Higher When Tested
  • You Were Improperly Stopped
  • The Chemical Testing Was Done Improperly
  • The Field Sobriety Test Was Done Improperly
  • The Charging Documents Have Defects
  • Incriminating Statements Were Suppressed
  • They Can't Prove You Were Operating The Vehicle

Chemical Test Instruments Used Were Inaccurate

Technology is not foolproof. Machines used by the police to test a person's breath, blood or urine are all subject to inaccuracies – and the courts understand this.

It is simply not possible for any testing instrument to be 100% accurate all the time. Blood testing is generally more accurate overall then is breath testing, which in turn is generally more accurate than urine testing. However, simply because your results exceeded legal limits doesn't mean you don't have a defense. After examining the specific facts of your case, I may be able to tell you how why the testing may have been inaccurate. However, it's often necessary to retain an expert for the case to help educate the jury regarding about inaccuracies.

Your Blood Alcohol Content Was Higher When Tested

In unlawful blood alcohol cases (known as UBAL cases) the prosecuting attorney must prove that your blood alcohol exceeded the legal limit at the time you were driving the vehicle. Thus, if the breath, blood, or urine test in your case was not performed until some time after the actual arrest (when you were actually driving) you have an opportunity to argue that these chemical test results should be given less weight.

In these instances, expert testimony is often recommended to help you communicate your defense to the jury or judge. This strategy might help persuade the jury to understand your position and, hopefully, result in a not-guilty verdict.

You Were Improperly Stopped

I t sounds absurd, but in far too many instances, police officers stop drivers merely because it's nighttime and they expect them to have had a few drinks – or more. For instance, they have been known to park outside bars and check license plates for drivers with outstanding tickets. Others stop cars for slight swerving within a lane (which is legal), or loud exhaust pipes or car stereos.

In these situations, the pretext for the stop is designed to justify an investigation. However, the law states that an officer requires "reasonable suspicion" to stop a vehicle, or must actually witness a civil infraction. The officer's justification for stopping you is an extremely important aspect of the case and it must be properly analyzed to determine if it was valid

As you may know, video recording equipment is now used by many law enforcement agencies across the state. In many, many instances, the videotapes I have obtained from traffic stops have revealed that the police officer's justification for the traffic stop was insufficient.

Furthermore, even when a sufficient reason exists for the traffic stop from a legal standpoint, the motorist's driving doesn't always support the officer's hypothesis that the motorist was intoxicated. For instance, speeding, is statistically inconsistent with intoxication because nearly everyone speeds!

If it can be shown that the police did not have a justifiable cause to stop your vehicle, then the evidence collected after the stop might be declared inadmissible. The legal standard is that the stop must be justified by probable cause or an articulable suspicion of criminal activity. It must be mentioned thought, that a violation of the traffic code, such as speeding or weaving between lanes, will provide a sufficient basis for the stop as well.

The Chemical Testing Was Done Improperly

Administrative rules govern how police officers take breath and blood samples. For instance, testing instruments must be properly maintained and calibrated. If the police did not follow these statutes and administrative rules, the test results can sometimes be thrown out. This strategy is unlikely to lead to a dismissal. However, it often improves a defendant's chances for victory at trial.

The Field Sobriety Test Was Done Improperly

The officer's observations and opinions as to what he or she considers "failing the field sobriety test” can be questioned.

Unlike with chemical testing, there are no standardized rules for field sobriety tests. However, there are police training manuals and other instructional guidelines for the police to follow. In some cases, these procedures can be introduced in cross-examination to show that a police officer did not properly administer the field sobriety test.

Field sobriety tests are highly subjective.

Several scientific studies that show field sobriety tests are highly inaccurate. The circumstances under which the field sobriety tests were given can be challenged. Witnesses can also testify that you appeared to be sober.

While these facts and circumstances lead to a dismissal only in very rare instances, they sometimes help persuade the jury to treat the defendant more favorably, sometimes leading to a not-guilty verdict.

The Charging Documents Have Defects

Police officers are human. Like anyone else, they make mistakes. Irregularities in the charging documents and police reports for a case can sometimes be used to question the police officer's credibility. The argument to the jury is very straightforward: If the police officer is mistaken as to the time of day or the direction your car was traveling, then he may also have other facts wrong. This is critical since the prosecutor's case usually relies largely on the testimony of the arresting officer.

Incriminating Statements Were Suppressed

Everyone has seen police officers on television shows read those being charged with a crime their rights. If they fail to do this, or do it properly, any statements you make after that may be struck from the record.

While the courts seem less and less inclined to suppress incriminating statements based on a police officer's failure to read a defendant his rights, statements made by the person charged are still sometimes suppressed. For instance, if you admitted to the police offer how much you had been drinking before he read you your rights, you might be able to get those statements suppressed. In rare cases, this results in a lack of probable cause for the case that can result in dismissal.

They Can't Prove You Were Operating The Vehicle

In rare instances, it's possible to have a case dismissed because there is insufficient proof that you were actually operating the vehicle. The fact that you were positioned behind the wheel with the motor running may not be enough to prove that you were actually operating the vehicle.

However, this determination will depend on the specific facts of your case because the Michigan Courts have indicated "once a person using a motor vehicle has put the vehicle in motion, or in a position posing a significant risk of harm, this person continues operating the vehicle until it is returned to a position posing no such risk". This means if your car is running but does not pose a risk, your attorney might be able to argue that you were not "operating".

A recent case involved an individual who was found in the parking lot of a golf course, asleep at the wheel, with the engine running. For some reason this individual was charged with attempting to drive while drunk, rather than the general crime of drunk driving. In this case, the Court concluded: "that this evidence fails to establish that defendant possessed the requisite specific intent. The evidence does not sufficiently establish that defendant was intending to use his truck as a motor vehicle as opposed to just a shelter.

“The mere fact that the engine was running does not sufficiently establish that defendant had or was intending to put the vehicle in motion. As one of the arresting officers conceded, it was possible that defendant was simply keeping the truck warm while he slept".

Your attorney must carefully analyze the facts of your case because circumstantial evidence can also be used to prove this element of the crime. For instance, if the police find you in an idling car, but there is sufficient circumstantial evidence to determine that the car was driven by you to that location earlier, such as the location of the car, a warm engine, tire tracks in the snow, etc., the prosecutor can sometimes use this evidence to prove prior operation. Cases with an issue of "operation" are often taken to trial so that the jury can make the final determination of the facts. The jury might decide not to convict the defendant because it believes the driver used good judgment in getting some sleep rather than trying to drive.

I haven't mentioned all of the defense strategies here – there are hundreds of them. My advice to you is that you should not simply walk into court and plead guilty without first having your case carefully evaluated.

I believe that almost all cases can be defended in some way. I will be the first to admit that all defense strategies do not lead to a dismissal or even a substantial reduction in the charges. I also believe that it does not make sense financially to vigorously fight every case.

However, you should have every opportunity to make fully informed decisions about your defense. This decision-making process will most likely require the advice of legal counsel. Please call me at 1-877-Joe-Cross to talk about possible defense strategies or complete our free, online case review to get started – I am here to help you.


S. Joseph Cross PC is committed to answering your questions about criminal defense, DUI/OWI defense, and traffic law issues in Michigan.

I offer a free consultation and I’ll gladly discuss your case with you at your convenience. Contact me today to schedule an appointment.