DRIVING UNDER THE INFLUENCE
WHAT WE LOOK FOR
IN TRYING TO WIN YOUR CASE
If you have been arrested for suspicion of driving while
intoxicated, (DWI) be advised there are numerous factors
that can work in your favor and result in the dismissal of
your case. DUI help is only one phone call away.
For a conviction to be rendered, the burden of proof is on
the People of the State of New York, meaning the arresting
officer and the prosecution. All aspects of the charges must
be proven, which includes but not limited to proper
administration of sobriety tests, chemical tests, probable
cause and search and seizure protocols and following the
law. Each of these human, mechanical or procedural factors
are subject to error. We review all of them and determine
which can work in your favor.
Our Office can help with DUI
Advice, DUI Penalties, DUI Laws, DUI Charges, DUI Defense,
DUI Arrest, DUI Felony, DUI Misdemeanor, DWI Penalties, DUI
Suspension and much more.
ARRESTING POLICE OFFICER ERROR.
The judgment of the officer who stopped you could be in
error for any number of reasons. Furthermore, his
administration of correct procedure after the arrest could
be improper. Here are examples of what can hurt the
prosecutions case and therefore help you.
THE OFFICER FAILED TO READ YOUR
If you are taken into custody or the police question you
with the purpose of eliciting an incriminating response,
they must read you your rights beforehand. If he fails to
read you your Miranda rights and obtain a valid waiver of
these rights, then any statements obtained after arrest, as
long as they are the result of officer questioning and not
so-called “spontaneous, unsolicited statements”, will most
likely be thrown out of court.
THE OFFICER DID NOT HAVE PROBABLE
CAUSE FOR STOPPING YOU.
After the officer stops you, he may not arrest you, put you
in handcuffs and take you away for administration of
chemical tests unless he has evidence that the crime of
drunk driving has occurred. If this happens, you are
entitled to what is termed suppression hearing during which
a judge determines whether the arresting officer had
probable cause. At these hearings, the officer is
cross-examined by us, and while the judge usually sides with
the prosecution, the defense has the opportunity to expose
problems with the investigation. As a result, the District
Attorney often times will lessen the charge or work with us
to settle the case.
THE OFFICER MISTOOK THE REASON FOR
Sober drivers make mistakes all the time: inappropriately
wide turns, weaving in and out of traffic, drifting out of
their lanes. Drivers talk on cell phones or become
distracted by the kids. The officer can mistake any of these
as signs of drunk driving, when in reality they may be
nothing more than unsteady driving from a merely
inattentive, but sober driver.
Further, fatigue can cause a driver to
exhibit these same erratic driving responses. The officer
could have confused the miscues of a drunk driver with those
of someone who is drowsy and exhausted.
YOU WERE STOPPED WITHOUT
You may not be pulled over arbitrarily by a police officer.
There must be reasonable suspicion substantiated by specific
articulable facts foe an officer to stop you. It this
standard cannot be metin a suppression hearing, as described
above, your case will likely be dismissed.
THE OFFICER MISJUDGED THE LEVEL OF
The Alcohol Behavior Research Laboratory at Rutgers
University did a study, which demonstrated that police were
no better at judging intoxication levels than were
bartenders or social drinkers. Furthermore, none of these
groups were able to judge levels of intoxication accurately
more than one quarter of the time. When a prosecutor makes
an appeal to the jury based on the officer’s ability in this
regard, his opinion deserves to carry no special weight.
Additionally, police officers ordinarily cite smell of
alcohol on the breath as proof of the suspects intoxication.
Any chemist knows that alcohol (ethanol) has no odor. What
causes the smell of alcohol are the other agents in the
beverage. Drinking non-alcoholic beer will give the breath
the odor that many officers will claim is the smell of
alcohol. All that the odor of alcohol on the breath can
indicate is that the suspect probably consumed some alcohol
recently. It does not confirm that ones blood alcohol
content (BAC) is greater than .08% level required to
demonstrate legal intoxication.
THE OFFICER FOUND NO INDICATION OF
Toxicologists know that a degree of mental impairment always
precedes physical impairment, if the impairment is being
caused by the consumption of alcohol. Police officers often
report that persons they arrested were coherent in
understanding and answering questions, and following
directions throughout the investigation and arrest. It is
well established scientifically, if mental impairment due to
alcohol was not present, then it follows that neither was
physical impairment due to alcohol. There may always be
physical impairment stemming from any number of factors,
such as sickness, injury, age, obesity, nervousness, or just
a general lack of coordination. The prosecution must prove
that any observed physical impairment is caused by the
alcohol in question.
LACK OF CORRELATION BETWEEN
SPEEDING AND DWI.
While speeding is against the law in itself, studies have
demonstrated that speeding is not the correlative factor to
driving while intoxicated. A speeding driver is as likely to
be sober as drunk, and so speeding is not evidence that the
driver is drunk. An officer alleging that he pulled a driver
over for speeding as evidence of DWI maybe basing his action
on invalid assumptions.
THE OFFICER MISTOOK OTHER SYMPTOMS
Police use preprinted forms filing DWI reports. These
contain boxes which the officers simply check off to
indicate that the suspect had “bloodshot and watery eyes,”
“slurred speech,” “unsteady,” and a “flushed face.” In New
York State there are presently no video cameras in the
police cars, so these statements are usually left
unchallenged by an inexperienced DWI lawyer.
As we all know, numerous other conditions
can cause these symptoms. Allergies, exhaustion,
sleeplessness or eyestrain could make ones eyes bloodshot.
Anger over the traffic stop could cause ones face to flush.
Embarrassment or becoming flustered could cause one to slur
his or her words. Yet, the officer may not take these other
causes into account, however obvious it is that these
behaviors are just as likely to come from causes not related
to alcohol consumption.
BREATH ALCOHOL TESTING ERRORS:
Many factors render Blood Alcohol Levels even more prone to
inaccurate results than field tests.
ERRORS INHERENT IN BLOOD AND BREATH
TESTS FOR INTOXICATION.
Assuming that the test machines are in standard calibration
and that the tests were administered flawlessly (a rare
scenario), experts still acknowledge DWI breath tests
contain an error rate of plus or minus .02%, and blood tests
have a error rate of plus or minus .005%. When you add in
the factors below, further questions can be raised about
HEARTBURN CAN GIVE A FALSELY HIGH
The breath test is designed to test the amount of alcohol
present in the air in your lungs. If you suffer from
heartburn, GERD (gastroesophageal reflux disease) or acid
reflux, alcohol from the stomach can travel back from the
stomach to the throat or mouth. When you blow into the
breath test machine, what is measured in these instances is
the mouth alcohol plus the air in your lungs. This can raise
your reading on the test falsely by a factor of 4, meaning
that an actual blood alcohol level of .04 would read as .16,
double the legal limit. If you had just eaten a spicy meal
and were experiencing heartburn when you took the test, you
might give a very high false reading. Even a slight,
unnoticeable regurgitation can result in mouth alcohol being
blown on the test.
MOUTH ALCOHOL FROM OTHER SOURCES
CAN ALSO AFFECT TEST RESULTS.
Mouth alcohol can come from sources other than belching or
heartburn. Decaying food particles trapped between the teeth
in dentures, braces, cavities or impactions will tend to
form alcohol in the mouth. So would latent alcohol from
having recently taken cough syrup, cold medicine,
homeopathic preparations, mouthwash or used various breath
Like alcohol burped up from acid reflux,
latent alcohol in the mouth from these sources can also
dramatically raise breath test levels.
THE MACHINES ALSO READ OTHER
People who work around chemicals can absorb these compounds
and these may show up in lung tissue. Such things as nitrous
oxide, acetonitrile, ethylene, toluene, isopropanol, if
found inn the lung tissue of a DWI suspect, can give a
falsely high reading on the breath test.
Recent exposure to any type of volatile fumes (gasoline,
paint, lacquer, etc.) can falsely elevate test results.
A LOW CARB DIET CAN FOOL THE
When a person is eating a high protein, low carbohydrate
diet, such as the Adkins Diet, the body produces compounds
called ketones during metabolism. When a person then
consumes carbohydrates, as in drinking alcohol, these ketone
bodies in the blood can produce another form of alcohol,
isopropyl alcohol. Most breath testing machines do not
distinguish between the two even though it is only the
ethanol that causes impairment. A falsely high test result
If you are hypoglycemic, borderline
diabetic or if you have diabetes, consumption of alcohol,
even in small amounts, will cause your body to convert
elevated levels of acetone into isopropyl alcohol.
YOUR BLOOD ALCOHOL LEVEL WAS STILL
When you consumed your alcohol, may have more consequences
on your test reading than how much you consumed. The reason
is because alcohol can take up to 3 hours to absorb fully
into the bloodstream. In other words, your peak Blood
Alcohol Level may come at the station house when taking the
breath test and could be twice as high as your level when
you were particularly if you consumed the alcohol shortly
before you were stopped. Your Blood Alcohol Level may have
been .07 when you were stopped but an hour later at the
police station when the alcohol has been fully absorbed, the
test reads .14. No law mandates a Blood Alcohol Level above
.08 at a police station; it’s the level when you were
driving that counts. This is another potential source of
breath testing inaccuracy.
INDIVIDUAL VARIATIONS IN YOUR
RATION OF BLOOD TO BREATH.
Across the general population, there is a conversion ration
that breath machines use to convert a breath alcohol reading
to a blood alcohol reading. The machine assigns this value
at 2,100 to 1. Fundamental to breath testing, is the
assumption that the subject being tested conforms to this
ration. Scientists, however, have disclosed widely different
ratios among individuals across the population. And, if a
person’s breath-to-blood cvolnversion ratio is lower than
2,100 to 1, a breath test will reveal a blood alcohol level
much higher than it actually is.
BREATHING TECHNIQUES AND
TEMPERATURE CAN AFFECT TEST RESULTS.
Variances in the duration and volume of the breath sample
may result in a false high or false low reading. The machine
is calibrated to receive a breath sample that lasts over 10
seconds in delivery time, which usually translate to the
delivery of approximately 2 liters of air. A longer breath
sample may yield a much higher amount of alcohol being
registered. Conversely, a shallow breath hyperventilating
,may result in mouth alcohol being blown, again giving a
false high reading.
Even breath temperature may affect results. The machines are
calibrated to record breath blown at a temperature of 34 C.,
just a few degrees below normal body temperature. Even a
slightly higher temperature can give a falsely higher
reading. Such can occur from fever, sitting in the back of a
hot squad car, exertion from dancing at a club, sitting in a
hot tub and so on.
Due to various physical conditions such
as chronic lung problems (emphysema, asthma, bronchitis or
chronic obstructive pulmonary syndrome) or dental problems,
many persons are not suitable candidates for breath alcohol
testing, yet these same individuals are given breath alcohol
tests day in and day out, with little regard for the
physiological differences among individuals being tested by
one, generic machine.
TEST RESULTS MAY BE CONTAMINATED.
Radio waves generated by any number of electronic devises
such as police radios, radar guns, scanners, computers,
etc., can interfere with electronic circuitry in blood or
breath testing machines. Radio Frequency Interference, or
FRI as it is known, can influence a breath machine and
render a false test reading. While the amount of inaccuracy
is difficult to determine, it nevertheless adds yet one more
degree of skepticism surrounding breath alcohol tests.
A DISCONNECT MAY EXIST BETWEEN
INTOXICATION SYMPTOMS AND TEST.
A test reading is only one factor in a DWI case. Sometimes
the test reading is inconsistent with other evidence such as
the field sobriety tests, officer reports of the suspects
behavior, etc. As well, specific symptoms can be observed at
different levels of intoxication and if tghe DWI suspects
other indicators do not conform to what would be expected
from the test results, this disconnect calls the entire case
into question. That is, the expected level of impairment was
not evident at the reported Blood Alcohol Level test
DWI Rights & DUI
WE GO TO WORK
IMMEDIATELY ON YOUR BEHALF
We listen closely to what led up to and resulted in your DWI
arrest, asking pertinent questions to reveal details to
strategize a tactical defense plan. We become totally
familiar with your case, and allocate plenty of time to
address your concerns.
Immediately we go to work to save your
driver's license, and investigate your case beginning with
the police report and evidence. We examine every event and
surrounding detail involved, including the use of breath
testing equipment, maintenance records, calibration,
observation periods, certification of operators and blood
testing technicians, and more.
Once we have obtained a copy of the
police report pertaining to your arrest and DWI offense(s),
we examine every aspect to uncover inconsistencies,
inadherence to policies and procedures, contradictions, and
other information that we can put to the test at your any
DMV Hearing in preparation for your criminal court case. The
DMV Hearing can be very instrumental in serving as a "mock
trial", in some cases, where we can test the strength of the
charges against you, and the likelihood they will stand up
to the measure of "beyond a reasonable doubt".
We will examine the evidence against you,
and if you submitted to a blood test, we will request a
sample to send to our independent laboratory for an expert
second opinion. We employ toxicologists, criminalists,
private investigators, independent laboratories, alcohol
dependency mediators, and other experts (as needed) to
exhaustively support your defense case. If the results of
the independent lab test differ from law enforcement's
claims, we will obtain documentation such as affidavits from
our lab sources, and if your case proceeds to a Jury Trial,
we employ the full force of our contacts and resources to
provide essential support and testimony on your behalf.
We will visit the scene of your arrest,
the landscape and conditions where you subjected to field
sobriety tests, if applicable. We will match the area
against the police report, and again thoroughly weigh all
contributing and external factors such as the weather and
traffic patterns at the time of your arrest.
We will make a list of all witnesses, law
enforcement personnel, and test technicians to ensure each
person's statement or account of the incident is
corroborative. We will cross-examine all involved parties if
your case proceeds to a Trial.
We will request maintenance, calibration,
& certification records on all breath testing equipment and
personnel, reviewing the administration of tests for
inadherence to procedure or other disqualifying causes.
We will give you all the information you
need to prepare for your first court hearing. In some
instances, we can successfully file a pre-trial motion at
this hearing, in some cases resulting in an an entire
dismissal of the charges against you. If your case does not
proceed to trial, the prosecutor may offer to have your DWI
charges reduced to a traffic infraction.