Approaches for Legally Attacking a DUI Charge

1. PORTABLE BREATH TEST GENERALLY NOT ADMISSIBLE – Washington generally prohibits the use of portable breath testing results as evidence at trial in a DUI case.

2. POLICE BIAS AND QUESTIONABLE CREDIBILITY - Law enforcement records of specific officers can be obtained through discovery to impeach them.

3. FAILURE TO CONDUCT REQUIRED OBSERVATION PERIOD – Washington requires that a driver be observed continuously for a minimum period of fifteen minutes prior to a breath test in order for the results to be considered admissible and valid.

4. EXPERT WITNESSES – Expert witnesses are available to review the validity of breath alcohol tests, blood alcohol tests, and standardized field sobriety tests.

5. MEDICAL AND HEALTH PROBLEMS AFFECTING PHYSICAL PERFORMANCE – Medical problems with legs, arms, neck, back and eyes can affect the results of field sobriety tests. Medical records and supportive letters from physicians should be used.

6. INCLEMENT WEATHER – Weather reports establishing high winds, low visibility, and other conditions are available to explain poor driving or poor balance in many DUI cases.

7. ABSENCE OF PROBABLE CAUSE TO ARREST – A police officer must have specific and articulable facts to support any arrest for DUI or the evidence can be suppressed at trial.

8. ILLEGAL SEARCH – The police are prohibited from searching a person or the automobile for a minor traffic offense, and may not search a car without a driver’s consent or probable cause. Any evidence illegally obtained generally is not admissible in court.

9. PRIOR INCONSISTENT STATEMENTS MADE BY LAW ENFORCEMENT OFFICERS – Any statement made by a police officer, verbally, in police reports, or at previous court proceedings may be used to attack that officer’s credibility and competence.

10. ABSORPTION AND/OR CONSUMPTION OF ALCOHOL AFTER DRVING – The prosecutor must prove the blood or breath alcohol at the time of driving. Recent consumption of alcohol just prior to driving will cause the test results to be higher than what the true level was when the person was operating the automobile. There may also be post-driving alcohol consumption.

11. CONTAMINATING SUBSTANCES – Many edible and non-edible items contain forms of alcohol, which may cause false results such as asthma spray, cough drops, paints, fingernail polish. These items can cause the breath results to be invalid.

12. BAC DATAMASTER PROTOCOLS NOT PROPERLY FOLLOWED – The manufacturers of breath testing devices have specified protocols, which must be followed for a breath result to be valid. Failure to follow these requirements will result in improper readings.

13. INABILITY TO PRODUCE DISPATCH TAPES – Most stops of vehicles are recorded on dispatch tapes as well as recording police communications regarding an arrest of an individual. Failure to preserve such tapes upon request may cause all evidence which could have been recorded to be suppressed.

14. FALSE, COERCIVE, AND/OR MISLEADING STATEMENTS BY LAW ENFORCEMENT OFFICERS – Any misleading statement by the police regarding the consequences of taking (or refusing) a blood alcohol or breath alcohol test may cause the suspension to be reversed and removed from the driver’s record.

15. TWO YEAR STATUTE OF LIMITATIONS – A misdemeanor charge of DUI must be filed in Washington within a certain period of time, two years, from the date of offense or the charges will be dismissed with prejudice.

16. DRIVING ON PRIVATE PROPERTY – A person who has not driven the car on a public highway in Washington State cannot always be charged for drunk driving.

17. PROSECUTORIAL FAILURE TO DISCLOSE EXPERTS USED AT TRIAL – The failure of the Washington DUI prosecutor to disclose the state’s expert(s) will cause those witnesses to be barred from testifying against the defendant.

18. HOSPITAL USE OF LACTATE RINGERS DISTORTS BLOOD TESTS– When hospital staff use lactate ringers during the treatment of a patient, the hospital blood serum results will report falsely elevated and accordingly, invalid readings.

19. FAILURE TO RECORD SIMULATOR SOLUTION TEST RESULTS TAINTS RELIABILTY –The failure to include the value of the simulator solution used to test Washington BAC Datamasters will cause the breath test results to be inadmissible in court.

20. NONCONSENUAL BLOOD DRAWS – The police may not take a blood test against the driver’s consent where there has not been an injury involved or the result is inadmissible.

21. NO PROBABLE CAUSE TO STOP OF VEHICLE – A driver cannot be stopped unless the officer has a reasonable and articulate basis to believe that a traffic law or other law has been violated. Similarly, a person cannot be seized unless a violation has occurred.

22. LEGALITY OF WEAVING WITHIN A LANE – Weaving without crossing any lines is not a violation of the law, and a vehicle cannot be stopped for that reason.

23. ANONYMOUS REPORTING OF IMPAIRED DRIVING – A car cannot be stopped simply because an anonymous citizen reported that the driver was drunk.

24. STANDARDIZED FIELD SOBRIETY TESTING IS NOT RELIABLE – In healthy individuals, the one-leg stand test is only 65% accurate regarding impairment, and the walk-and-turn test is only 68% accurate in determining if a person is impaired. Those individuals with physical injuries, medical conditions, 50 pounds or greater overweight, and 65 years or older cannot be validly judged by these tests.

25. NON-STANDARDIZED FIELD TESTS ARE INVALID NOT ACCEPTED BY LAW OR SCIENCE – Neither the National Highway Safety Association (NHTSA) or medical science consider touching the finger to your nose, or reciting the alphabet, or counting backward, as valid sobriety tests.

26. BREATH TESTING IS PRONE TO ERROR – Virtually all experts concede that one breath test alone is unreliable. Breath testing is subject to various inaccuracies, including a variance as much as +/- 12.5%, non-specificity for ethanol, mouth alcohol, or acid reflux disease etcetera.

27. BOOKING ROOM VIDEOS AND AUDIOS – Many police stations videotape suspects on site, where suspects’ speech is clear and balance is good, despite police testimony to the contrary.

28. SQUAD CAR VIDEOS – More and more often, the suspect’s driving and performance on field tests is being recorded; often contradicting police testimony.

29. SPEEDY TRIAL VIOLATION – If a client is not provided with a trial within a certain period of time, which varies between states, through delays of the court or prosecutor, the charges must be dismissed.

30. POLICE BLOOD TEST MAY BE QUESTIONALBE – Frequently, law enforcement alcohol blood testing strays from prescribed rules of testing, analysis, or preservation recommendations.

31. HOSPITAL BLOOD TEST MAY BE ERRONEOUS – Hospital blood tests can overstate a person’s true blood alcohol level by up to 25% in healthy, uninjured individuals. Also, blood alcohol tests are not statistically reliable in severely injured persons.

32. BREATH TEST OPERATOR QUALIFICATIONS – Washington requires a Breath Test Operator to possess a valid, unexpired operator’s certification and follow-ups or the breath test result is inadmissible.

33. BAC DATAMASTER MACHINE ERRORS AND MALFUNCTIONS – Washington specifies that if there is a malfunction of the breath test instrument within a certain period of time before or after a suspect’s breath test, the results of the suspect’s test are possibly invalid.

34. BREATH TEST OPERATOR LICENSE STATUS – Washington requires that a Breath Test Operator must possess an unexpired operator’s license, or the breath test result is inadmissible or given far less weight in evidence.

35. BREATH TEST DEVICE ACCREDITATION – A breath-testing instrument must be listed on the Federal List of Approved Breath Evidential Instruments and the ISP approved list of Devices or the results are inadmissible.

36. FAILURE TO MEET THE BURDEN OF PROOF FOR DRIVING UNDER THE INFLUENCE – A defendant’s admission to driving, without more, is not sufficient to prove a charge of driving under the influence.

37. DISINTERESTED INDEPENDENT WITNESSES – Often disinterested independent witnesses to accidents, bartenders, hospital personnel and others can provide crucial evidence of the defendant’s sobriety.

38. FAILURE TO PROPERLY GIVE MIRANDA WARNINGS – Prosecutors may not use as evidence the statements of a defendant in custody for a DUI when the police have failed to properly issue Miranda Warnings.

39. STANDARDIZED FIELD SOBRIETY TESTS NOT PROPERLY ADMINISTERED – According to the National Highway and Traffic Safety Administration, improperly administered field tests are not valid evidence of intoxication.

40. LAW ENFORCEMENT OFFICER’S PRIOR DISCIPLINARY RECORD – A police officer’s previous disciplinary record can be used to attack the officer’s credibility.

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Disclaimer: State laws may change over with time. Please consult an attorney for legal advice on specific statutes in Washington

APPROACHES FOR LEGALLY ATTACKING A DUI CHARGE