Frequently Asked Questions About DUI Defense
It is always worthwhile to hire a DUI attorney, because the best, most experienced attorneys will be able to properly evaluate the case and will know the best defenses available, especially if the case has been set up properly by the police. People need an attorney to conduct all of the legal analysis that is necessary, because DUI is a criminal charge, and to look at all of the alternatives available, such as dispute resolutions and pretrial diversions, because no one wants to go to jail, and they would also like to avoid being saddled with a criminal record for life.
Handling a case without a lawyer is not advisable in my opinion, because a non-lawyer won’t know all of the options available, and the average person can’t do anything about the driver’s license suspension, including how to minimize it. Even if the case ends up being dismissed, in Alabama, a driver charged with DUI faces a serious driver’s license suspension.
To know whether or not they hired the right lawyer, someone charged with DUI should interview several lawyers and ask a lot of questions, to make sure they plan to put in the time, effort and money into being educated about DUIs, and to know they have handled many DUIs in the jurisdiction where they were arrested, thus making sure they have to experience to be able to go through the process and also to walk their client through, as well. It’s also very important that a client feel comfortable with their attorney.
Judges think handling a DUI without an attorney is a bad idea because they don’t know or understand the intricacies of the law; in Alabama, a DUI can be proven in five different ways, which means the state can use any one of those to prove their case. For example, if the person did not take a Breathalyzer test, the state may not be able to prove their case by using a blood alcohol content reading, but they may still be able to use another subsection of the DUI code to do so. These are the types of things that someone not trained in the legal system, and especially with regard to DUI, wouldn’t know. Attorneys have been through years of training and they usually have years of experience, so they will know about things such as proper jurisdiction, proper arrest and whether they were properly served, while someone without that knowledge wouldn’t know how or whether to fight such issues.
It is not always possible for a public defender to handle a DUI case in Alabama; most jurisdictions will only appoint one for a felony, or if there is a potential for serious jail time, so in most cases people charged with DUI won’t even have the opportunity to be appointed a public defender. That said, the public defenders in Jefferson County do a great job, especially given their caseloads, but with just so many hours in the day, and a heavy caseload featuring defendants charged with more serious crimes, DUI wouldn’t be at the top of their list of concerns.
There is no black and white answer to this question because the penalties for refusing to take a Breathalyzer test in Alabama get stiffer with every legislative session, so a person who refuses will have to deal with ever harsher consequences with regard to their driver’s license. However, cases in which the accused refused to take a breath test and the case goes to a jury has a statistically better chance at acquittal than someone who blew a 0.08 or higher.
People have to also understand that the true refusal happens after their arrest, while they were being booked into jail, so blowing or not blowing wouldn’t make a difference in whether they get arrested. It is not against the rules to refuse the portable breath test, whose results aren’t admissible in court; the only refusal to count against their driver’s license is the one at the police station, after they have already been arrested. Sometimes, people get roadside investigation and they think they’re not doing so well, so they opt to refuse the Breathalyzer test, even though police already have enough evidence to arrest them anyway.
There are only three standardized field sobriety tests that all law enforcement officers have been trained on; the walk-and-turn, the one-leg-stand and the horizontal gaze nystagmus tests, so saying the alphabet backwards is not a recognized field sobriety test, which means a good attorney will probably be able to suppress evidence like that, anyway, especially since saying the alphabet backwards has never been scientifically linked to impairment from alcohol.
How or whether you could fight such an admission would depend on a number of factors, such as whether or not they took a Breathalyzer test or whether the result supported their claim that they only had two beers. For example, it wouldn’t make any sense if someone said they had two beers, but they blew a BAC of 0.15.
I would love to have a case where somebody was arrested for a DUI and the only evidence against them was the fact they said they had two beers. Usually, the police report contains more evidence, such as video of the person stumbling, or testimony of smelling of alcohol, not being able to complete the roadside sobriety tests or things like that; there is a small likelihood for someone to be found guilty of DUI if they had truly only had two beers over a several hour period.
The burden of proof is on the state or municipality; they have to prove beyond a reasonable doubt that the person was operating a motor vehicle while impaired by alcohol or drugs, whether legal or illegal; the accused never has to prove they were sober, or they were not impaired. If the police officer did not have a Breathalyzer or blood test and did not properly perform the field sobriety tests, the prosecution will have no real evidence other than the person saying they had two beers or someone else claiming they smelled like alcohol, which is not enough to prove DUI beyond a reasonable doubt.
One thing that could hurt a DUI case would be if they were subsequently charged with another DUI or had violated their bond in some way. Some municipalities might test them for alcohol or drugs while on bond facing DUI charges, and the bond can be revoked if they fail.
Another mistake that could hurt their case would be if they went on social media and talked about the case, while giving in to police pressure to talk too much or perform field sobriety tests can hurt them, even if they didn’t think they were intoxicated and there was no legitimate reason why they were stopped. Police are trying to find a reason to charge the person, whereas people feel like they have to comply with everything to have a chance.
There are many different factors in a DUI case and many ways that people can think differently about being arrested and charged with a DUI. For example, if a client does such things as community service and alcohol education classes in the time leading up to their court appearance, it’s possible to get a much more favorable result in court than if they had not shown the initiative, taken responsibility for their actions and were determined to keep the DUI off their record. In one such case I had, a client became eligible for a pretrial diversion, which he would not have otherwise qualified for.
People need to discuss issues like this with their lawyer and find out how their case can be handled in a way that could help them in their case, or to even help potentially avoid a DUI case altogether by knowing and understanding their rights leading up to it. When someone understand their rights before being stopped, they can often shut down an investigation from the beginning; they just have to demand to know why they were stopped, request a traffic citation and then ask to be allowed to leave; if they are not allowed to leave, they could assume they are under arrest, which changes everything. At that point, the officer will have to make an arrest, if he thought he had enough evidence, or issue a ticket and let the person go if he didn’t, in order to avoid violating their rights.
However, if that person got out of the car and started performing the field sobriety tests, they would essentially be giving police a lot of extra evidence, perhaps enough to create enough probable cause to make an arrest. These borderline situations do not include people who are throwing up and obviously wasted, but rather those who may have had a drink or two at dinner and are less obviously impaired. I am not advocating for anyone to drive around with four times the legal limit of alcohol in their blood or anything like that; I’m just saying questionable arrests do sometimes happen.
Other than driver’s license issues, which are related to Breathalyzer results, punishments having to do with prescription medication tend to be much harder, although we don’t see many of those cases, since it’s more difficult for the state to prove them, unless the driver admitted that they felt impaired by their medications.
The science behind prescription medication impairment is unclear, so it is often difficult to tie the trace amounts of prescription medication in their blood to a specific time period in which they were allegedly driving impaired. Simply seeing prescription medication in the car won’t serve as evidence that the person had taken it then, so without an admission, it’s almost impossible to collect enough evidence to prove a prescription medication DUI had occurred. The police are aware of this and they don’t seem to write as many tickets for it.
There is no minimum jail time requirement for a first time DUI, but the second one carries an automatic five days to a year in jail, and the license suspension rises to a full year. Those are two major reasons why it’s critical to have an attorney for the second DUI; the penalties are much harsher.
Although we get very few blood cases in Alabama, the few we have can be fought. The reason there are so few is because a blood draw has to be requested by the defendant, unless there’s an accident and the defendant was sent to the hospital, where a blood draw occurred. Blood test results can be fought, just as a breathalyzer can, and they may even be a little easier, since there are a number of additional issues with a blood test, such as chain of custody issues or issues with someone being improperly trained to take blood; there are a lot of hoops to jump through to even get the blood test entered into evidence.
Never ignore the DMV; they control the driver’s license, and can suspend it until they are satisfied that the person had jumped through the hoops they wanted and in the meantime, the person will have no license to drive. They could try to drive without a license, but that is not advisable, since it’s a minimum $500 fine and an additional six months suspension if they are caught and pulled over for that.
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