Challenging Your DUI
- ILLEGAL STOP OF PERSON OR 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.
- WEAVING INSIDE THE LANES IS NOT ILLEGAL - weaving without crossing any lines is not a violation of the law, and a vehicle cannot be stopped for that reason.
- ANONYMOUS REPORT OF DRUNK DRIVING - a car cannot be stopped simply because an anonymous citizen reported that the driver was drunk.
- STANDARD FIELD SOBRIETY TESTING IS INACCURATE - in healthy individuals, the one-leg stand test is only 65% accurate, and the walk-and-turn test is only 68% accurate in determining if a person is under the influence. Those persons with injuries, medical conditions, 50 pounds or greater overweight, and 65 years or older cannot be validly judged by these tests.
- NON-STANDARDIZED FIELD TESTS ARE INVALID - neither the Federal Government (NHTSA) nor medical science considers touching your finger to your nose, or saying the alphabet, or counting backwards, as valid sobriety tests.
- BREATH TESTING IS INACCURATE - virtually all experts concede that one breath test alone is unreliable. Breath testing is subject to various inaccuracies, including a variance as much s +/- 12.5%, non-specificity for ethanol, etc.
- IN-SQUAD VIDEOS - more and more often, the suspect's driving and performance on field tests is being recorded; often contradicting police testimony.
- POLICE BLOOD TEST INACCURATE - Many times, police blood testing fails to follow prescribed rules of testing, analysis, or preservation recommendations.
- HOSPITAL BLOOD TEST INACCURATE - Hospital blood tests overestimate a person's true level by as much as 25% in healthy, uninjured individuals, and are not statistically reliable in severely injured persons.
- BREATH TEST OPERATOR UNLICENSED - Virginia requires a Breath Test Operator to possess a valid, unexpired operator's license, or the breath test result is inadmissible.
- BREATHALYZER MACHINE MALFUNCTIONS - Most states specify that if there is a malfunction or repair 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 presumed invalid.
- BREATH TEST OPERATOR LICENSE EXPIRED - Virginia requires that a Breath Test Operator must possess an unexpired operator's license, or the breath test result is inadmissible.
- BREATH TEST DEVICE NOT APPROVED - 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.
- FAILURE TO PROVE DRIVING UNDER THE INFLUENCE - A defendant's admission to driving, without more, does not prove a charge of driving under the influence.
- INDEPENDENT WITNESSES - Often times, independent witnesses to accidents, bartenders, hospital personnel and others can provide crucial evidence of the defendant's sobriety.
- FAILURE TO MIRANDIZE - 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.
- FIELD SOBRIETY TEST IMPROPERLY ADMINISTERED - According to the National Highway and Traffic Safety Administration, improperly administered field tests are not valid evidence of intoxication.
- PORTABLE BREATH TEST INADMISSIBLE - Virginia prohibits the use of portable breath testing results as evidence at trial in a DUI case.
- FAILURE TO CONDUCT OBSERVATION PERIOD - Virginia requires that a driver be observed continuously for a minimum period, such as twenty minutes, prior to a breath test in order for the results to be considered admissible and valid.
- EXPERT WITNESSES - Expert witnesses are available to review the validity of breath tests, blood tests and field sobriety tests.
- MEDICAL AND HEALTH PROBLEMS - Medical problems with legs, arms, neck, back and eyes can affect the results of field sobriety tests. Further, other medical conditions can also affect the validity of breath test results.
- BAD WEATHER - Weather reports establishing high winds, low visibility, and other conditions are available to explain poor driving or poor balance.
- LACK OF PROBABLE CAUSE TO ARREST - A police officer must have specific and articulable facts to support any arrest for DUI, or the suspension will be reversed and the evidence suppressed at trial.
- 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 is not admissible in court.
- PRIOR INCONSISTENT STATEMENTS BY POLICE 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.
- POST-DRIVING ABSORPTION OF ALCOHOL - 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.
- INTERFERING SUBSTANCES - Many 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.
- BREATH MACHINE NOT PROPERLY OPERATED - 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.
- MISLEADING STATEMENTS BY POLICE OFFICERS - Any misleading statement by the police regarding the consequences of taking (or refusing) a blood, breath, or urine test will cause the suspension to be reversed and removed from the driver's record.
- PRIVATE PROPERTY - A person who has not driven the car on a public highway cannot be required to submit to a BAC test or charged with refusal.
- FAILURE TO RECORD CERTIFICATION TESTS - the failure to include the value of the simulator solution used to test breath machines will cause the breath test results to be inadmissible in court against the driver.
- FAILURE TO PRESERVE SECOND VIAL OF BLOOD - In Virginia, the Commonwealth must draw and preserve a second vial of blood so that the Defendant has an opportunity to rebut the Commonwealth's test with his/her own blood analysis performed by an independent laboratory. Failure to properly preserve the vial results in suppression of the Commonwealth's test result.