DUI Defense Theories

 
The best DUI defense is to be successful attacking the reason the officer stopped your car. If they have no right to stop you all the observations the officer made a subject to suppression since they were illegally obtained.

The next attack comes in the form of whether the officer had reasonable suspicion of a crime to detain you beyond the brief time it takes to issue a traffic citation. A police officer can’t just get everyone out of the car and start field tests without a reasonable basis to support a belief that the person has had too much to drink.

Courts have listed several factors that can be used to determine if the officer had reasonable suspension. They are not exclusive and the evaluation will be case by case using what has come to be known as the Evans Factors.

The court in State v. Evans, 127 Ohio App. 3d 56, states, “Cases considering an officer’s decision to conduct roadside sobriety tests rely on the totality of relevant circumstances. Courts generally approve them only where the officer bases his decision on a number of factors. Without citing the numerous cases which have been canvassed, it may be said these factors include, but are not limited to:

  • Time and day of the stop (Friday or Saturday night as opposed to, e.g., Tuesday morning);
  • Location of the stop (whether near establishments selling alcohol);
  • Indicia of erratic driving before the stop that may indicate a lack of coordination (speeding, weaving, unusual braking, [accident] etc.);
  • Whether there is a cognizable report that the driver may be intoxicated;
  • The condition of the suspect’s eyes (bloodshot, glassy, glazed, etc.);
  • Impairment of the suspect’s ability to speak (slurred speech, overly deliberate speech, etc.);
  • The odor of alcohol coming from the interior of the car, or, more significantly, on the suspect’s person or breath;
  • The intensity of that odor, as described by the officer (“very strong, “strong,” “moderate,” “slight,” etc.);
  • The suspect’s demeanor (belligerent, uncooperative, etc.);
  • Any actions by the suspect after the stop that might indicate a lack of coordination (dropping keys, falling over, fumbling for a wallet, etc.); and
  • The suspect’s admission of alcohol consumption, the number of drinks, and the amount of time in which they were consumed, if given.

All of these factors, together with the officer’s previous experience in dealing with drunken drivers, may be taken into account by a reviewing court in determining whether the officer acted reasonably. No single factor is determinative.
The next attack would be to the way the officer conducted the field sobriety tests. The National Highway Traffic Safety Administration or NHTSA publishes a manual that court’s use to judge whether they are allowed to come in as evidence at hearing or trial.

The Ohio Revised Code or ORC section 4511.19(D)(4)(b) gives courts the standard. In a criminal prosecution for DUI the officer can testify concerning the results of the field sobriety tests if there were administered in substantial compliance with the current testing standards set by NHTSA.

NHTSA lists three standardized field sobriety tests. They are called Horizontal Gaze Nystagmus, Walk and Turn, and One Leg Stand. Examples of non-standardized tests are counting forwards or backwards, alphabet, finger count, finger to nose, etc. Challenges can be made to non-standardized tests.

Another attack on a DUI charge is the propriety of the arrest. Did the officer have probable cause? A test result is meaningless if the court finds there was no probable cause to arrest you.

The court in State v. Homan, 2000-Ohio-212 explains the elusive principle of probable cause:

 In determining whether the police had probable cause to arrest an individual for DUI, we consider whether, at the moment of arrest, the police had sufficient information, derived from a reasonably trustworthy source of facts and circumstances, sufficient to cause a prudent person to believe that the suspect was driving under the influence.  [citing: Beck v. Ohio (1964), 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142, 145;  State v. Timson (1974), 38 Ohio St.2d 122, 127, 67 O.O.2d 140, 143, 311 N.E.2d 16, 20.]

If the state survives all the above attacks, we turn to trying to suppress the results of any blood, breath, or urine test results. The court will look to the Ohio Administrative Code or OAC to see if the police complied with the requirements. If they fail to substantially comply with the code the results are not able to be use as evidence at trial. This will be a huge blow to the prosecution of the case.

The Ohio Department of Health is in charge of establishing the regulations. The provisions are contained in OAC 3701-53-01 to 3701-53-10.

Another attack to the charge of DUI in Ohio is with the use of experts. They cost more money, but they can be a really valuable counterpoint to the officer’s testimony that he did everything right and that the results are reliable. I have used field sobriety and breath-test experts.

An expert that can interview your client and give an opinion about an expect blood alcohol content or BAC (especially if it is under the limit) can be very helpful. I have also seen experts that can take a breath test result over the limit where the test was taken an hour or two after the person was driving and reverse extrapolate the BAC back to the time of driving and if that is under the limit that can be used to form a reasonable doubt at trial.

More interesting attacks to a charge of DUI include:

  • Involuntary Intoxication
  • Arnold–Chiari malformation
  • Naturally occurring nystagmus
  • Diabetic Emergency / Ketoacidosis
  • Medical condition that causes imbalance, muscle weakness or tremors, memory problems, pain, etc.
  • The defendant was unconscious or cannot remember what happened due to the effects of Ambien and therefore not legally responsible for his actions.
  • Gastroesophageal reflux disease (GERD)
  • The swab used to cleanse the skin prior to the blood draw contained alcohol and contaminated the sample.
  • The swab used to cleanse the skin prior to the blood draw contained alcohol and contaminated the sample.
  • Improper package and storage of the blood caused the development of yeast
    (Candida albican) artificially increasing the reported alcohol concentration (fermentation). Serum and plasma have higher alcohol contents than whole blood.
  • The State has not demonstrated that the gray top blood tubes used to draw the
    blood contained the proper chemicals to ensure a valid analysis.
  • The blood testing instrument measured and reported something other than ethyl alcohol and this artificially increased the reported BAC.
  • The tubes used to collect the blood were expired, so the results cannot be trusted.
  • Arterial blood is a much better indicator of actual BAC levels when compared to venous blood.
  • The gray top tubes used to collect the blood samples were not FDA-approved. Therefore, the jury and/or judge should not trust the results.
  • The bare chemical test result without a confidence interval misleads the jury. Failure of the state to produce the source code in order to be assured of the accuracy of the breath test instrument and its results.

DUI Case

A Relieved Client

“I went to court thinking I would just get driving privileges and still be under suspension for some time. Rob was able to get the entire ALS suspension waived and most of the court fees waived as well. Was placed under 6 months probation, couldnt have asked for a better outcome. Rob did a phenomenal job. He is very knowledgeable and accessible, and I would recommend him to anyone.”

DUI Case

A Grateful Client

“Rob is very knowledgeable in his area. His expertise and advice were unsurpassed. I not only had extreme confidence in Rob’s ability but was able to put my mind at ease while we went through this process. Rob was able to work with the prosecuting attorney and then get agreement from the Judge to dismiss several charges and plead to a 1st DUI. I cannot express the gratitude I have for Rob. I realize that he is being paid for his service, but his attitude is like none I’ve experienced when dealing with an attorney for this type of matter. He was not judgmental but caring.”