WAYS TO FIGHT YOUR DUI AND WIN!!!
By Attorney Craig Cahoon

Driving Under the Influence (DUI) charges are rarely hopeless.  In Washington State , there are numerous factors that can effect whether or not you can win against a DUI charge.  Some of the more common ways are listed below.

Probable Cause.  In Washington State , you are entitled to be free from unreasonable searches and seizures by the police.  In fact, our State Constitution grants a greater protection to our citizens than does the United States Constitution.

What this means in the DUI context is that the police have to have a specific, articulable suspicion that criminal activity is taking place.  The first question in a DUI case is whether or not the police had a valid reason for the initial stop.  If not, the results of the illegal seizure can, and should, be suppressed – which means the State cannot use that evidence against you.

Miranda.  We’ve all seen TV shows where the police read several warnings to someone they’ve just arrested: “You have the right to remain silent,” etc.  In Washington State , the police are required to read these warnings to you – if you are placed under custodial arrest.  Failure to read these warnings can lead to the suppression of any statements you make to the officers.  Like most of the law, however, there are numerous rules and exceptions that apply to the Miranda Rule.

Innocent reasons for bad driving.  It would be great if we were all perfect drivers all of the time, but no one is.  During a DUI trial, the Prosecutor will try and convince the Jury that the sole reason for your bad driving was Alcohol (or drugs).  By explaining any driving mistakes, we can begin to chip away at the State’s case.  Victories come more often from a series of small wins rather than a single attack.

One of the most common reasons for bad driving in the DUI context is simple fatigue.  In Court, the more you can stress the innocent explanations for any bad driving, the harder it will be for the Prosecutor to get a conviction.

Field Sobriety Tests (FSTs).  The roadside tests are not perfect.  There are three standardized tests used: HGN, Walk and turn, and One Leg Stand.  

The Horizontal Gaze Nystagmus test detects involuntary movements of the eyeballs.  It is generally performed by having the subject follow a stylus (like a pen or a finger) with only their eyes.  If Nystagmus (involuntary shaking) occurs prior to 45 degrees from dead center, then alcohol in a concentration of .10 or higher may be present.  Under Washington State law, this test can be admitted to show the presence of alcohol but not to show impairment.

The Walk and Turn test.  This test is described as a divided attention test because you are judge on factors like following instructions and doing several tasks at once.  The biggest problem with this test is that it can falsely report mistakes as signs of impairment when in reality those mistakes can come from a wide variety of sources that have nothing to do with alcohol or drugs.

The One Leg Stand.  This is another test designed to test for impairment, but it suffers from the same over-inclusive problem that happens with the Walk and Turn test.

All three of these tests are voluntary.  You are almost always better off if you decline these tests.  

15 minute rule.   Washington State law requires the police to check your mouth then wait 15 minutes before conducting a breath test.  The reason is simple:  If you have a source of alcohol in your mouth, the machine can be fooled into reporting a higher (sometimes substantially higher) level of intoxication.  If the officer fails to perform the mouth check, the results of the BAC machine can be suppressed.

Alcohol Level was rising.  Alcohol takes time to reach your blood stream after you drink it.  This means that if you drink right before you drive, your breath alcohol level can be much higher when you are tested than it was at the time of driving.

Odor of Intoxicants.  The police will almost always try to bolster their case against you by claiming to have “smelled the odor of intoxicants” on the defendant’s breath.  With careful cross examinations, we can get the police to admit under oath that intoxicants have no odor.  This type of evidence will be insufficient to show that a driver was “under the influence” or had a BAC level of .08 or higher.

Non-standard Field Sobriety Tests.  The police will occasionally try to use FSTs other HGN, Walk & Turn, and One Leg Stand.  These non-standard tests lack scientific reliability and need to be suppressed because of their misleading nature.

Substances Mistaken for Alcohol.  The breath testing machine used in Washington can mistake other substances for alcohol.  In fact, there are approximately 200 chemicals that can be in vapor form at room temperature that will register as alcohol with our BAC machine.  Most of these would be fatal if consumed, but some are not.  This includes Acetone, which can be produced naturally in the human body.  

Low Carb Diets.  One of the ways Acetone is produced on the breath is during fasting or low carb diets.  The breath test machine will read Acetone as alcohol and include it in the report.

Diabetics.  People suffering from Diabetes will naturally produce Acetone on their breath, creating a falsely high BAC level.   The BAC machine checks for Acetone, however the machine will only warn about an "interfering substance" when it reaches a level of .01.  Anything below that level will be read into the alcohol score.  This means that a BAC ticket could be artificially high by as much as .009.  While this may not seem like much, it can be the difference between being over the legal limit or not.

Simulator Solution.  The breath test machine uses an external source of alcohol vapor as a way of verifying that the machine is working properly.  If this solution is either mixed incorrectly or is out of date, the BAC reading is not reliable and subject to suppression.

BAC result does not jive with field results.  Especially in the case of a very high BAC level, if the Police Officer’s observations show only minor impairment then the Jury will question the reliability of the BAC machine.

Breath Test Tube.  Condensation can disrupt the reliability of the BAC machine.  As a result, the tube you blow into is heated.  In fact, it must be “warm to the touch.”  If it is not, the test results may not be admissible.

Other Defenses.  DUI cases often come with unique sets of facts.  There can be defenses to the charge that only a trained professional will find.  If you find yourself facing a charge like this, call a lawyer who can help you.