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What Are Some Possible Defenses Used In DUI Cases?


The first line of defense involves questioning whether or not the officer really had a reason to pull over the defendant. An officer has to have probable cause to believe that a person committed a traffic violation. Now, it can be as innocuous as failing to use a turn signal, weaving between lanes or speeding. After that, the officer needs a specific probable cause that would indicate that the driver is impaired due to the ingestion of alcohol, a controlled substance or a combination of the two. Furthermore, that impairment must render the driver unable to perform normal functions with ordinary care.

You’re looking for the class indicia that they find in DUI cases, like bloodshot eyes, slurred speech, and abnormal motor coordination. That’s why you start getting into the standardized field sobriety tests. The first thing they’re going to look at is how the driver talks, if they’re slurring and what time of the day or night it is. They are not going to be so suspicious in the middle of the day, but if it’s three in the morning, you can pretty much be sure that the cops are figuring that the person is coming home from a bar. Once in a while there are people that start work at the time, but third shift usually gets off at five or six o’clock in the morning.

I always say to my clients and friends, “Look, if you’re at all thinking that there’s a possibility that you’re under the influence, then wait a few hours. Wait until six o’clock in the morning. The chances of getting pulled over at six in the morning are much, much less than getting pulled over at two in the morning.” If you go through a small town or even a medium-sized town at two in the morning, the streets will probably be completely dead with the exception of police officers that are on third shift. They are just waiting for you to come up, and they’re going to be super picky at that point. Driving five miles an hour wouldn’t get anybody’s attention during the day, but in the same town at night they’re going to say that you’re violating the law. Once a cop pulls you over, they are looking for clues that indicate that you’re under the influence, such as the smell of alcohol, an open beer in the car, how you’re speaking, and how long it takes for you to retrieve your license.

I can’t tell you how many times I’ve heard an officer say, “Well, I asked for his license and he went through his wallet and I saw three separate times that he went past it and I had to keep telling him that he was passing it by.” Or, an officer will say, “They were fumbling around in the car and couldn’t find their license.” So that’s another thing I always tell my clients: if you’re going to go out and come home after you’ve had a little to drink, then you should always have your insurance card and your driver’s license very handily available. I always keep mine clipped to the deviser. If you get pulled over, you don’t have to roll down the window all the way. You can roll down the window half way, so if there’s a smell of alcohol, you don’t blow it right in the officer’s face. You just get your license and insurance card ready to go without fumbling and do exactly what the officer says. The minute you start acting like a fool, you have problems. That’s common sense.

Is It A Viable Defense If Miranda Warnings Were Not Given?

The fact that Miranda Rights were not read is usually not a viable defense. People develop that misconception from watching too much TV, and it always drives me crazy. You’re not entitled to have the Miranda Rights read to you until you’re in a custodial situation, meaning you’re in an interrogation room or in handcuffs. You have to be in a situation where you’re not free to leave and you’re under arrest. If an officer is just doing an initial inquiry at the side of the road, then you’re not entitled to have your Miranda Rights read to you and it’s not a Miranda violation. At that point, the officer is simply making an initial inquiry to see if you’re okay to drive home.

A lot of people say, “Well, the officer didn’t read me my Miranda Rights,” and I tell them that it’s because they didn’t have to at that point. Once an officer takes you down to the station, requests a breathalyzer test and starts talking about what you did that night and how much you had to drink, then you’ve been completely seized for the purpose of the constitution. At that point, you’re not free to leave, and therefore you’re entitled to have your Miranda Rights read to you. Even if they don’t read them to you, anything that you say might be inadmissible during a trial against you. Every case is unique, so you’d have to see specific circumstances, but Miranda usually doesn’t apply until you’re in custodial interrogation. It’s very commonly misunderstood, because on TV, the minute a cop pulls someone over they whip out their little card and start reading, “You have the right to remain silent.” That’s not reality, but it looks good on TV.

For more information on Defenses In A DUI Case, a free initial consultation is your best next step. Get the information and legal answers you’re seeking by calling (847) 244-4636 today.

Barry Boches, Esq.

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