360 Legal Defenses and Arguments
Driving
Lack of probable cause to stop and/or contact the vehicle
Weaving inside the lane is not illegal
Driving over the fog line once may not validate the stop and/or contact of the vehicle
Anonymous report of DUI – officer must corroborate the report
Corpus Delicti – must prove defendant was actually driving
Safely Off the Roadway – a defense to “physical control”
Videos in Patrol Car – may contradict officer’s report
Observations of Driver -Physical Appearance
Clothing and Grooming
Is there an innocent explanation for the defendant’s disheveled clothing?
Why had the defendant not shaved or combed his hair?
Are there any other witnesses to the defendant’s appearance within an hour of the arrest?
Can the officer’s conclusions be used to discredit other testimony?
Eyes
Does the defendant suffer from an eye disorder?
Is the normal appearance of defendant’s eyes red, glassy, watery, or bloodshot?
Was the defendant suffering from fatigue, lack of sleep, or eye strain?
Was there significant air pollution on the day of the arrest?
If a pupil reaction test was given:
-Was the officer qualified to administer the test and render medical conclusions?
-How were size of pupils and speed of their reaction measured?
-Is the officer familiar with nonalcoholic causes of slow pupil reaction?
Flushed Face
Is the defendant’s facial complexion normally flushed or red?
Was the defendant nervous, angry, or otherwise emotionally upset at the time of the officer’s observations?
Are there causes for a flushed appearance other than alcohol?
Breath Odor
As alcohol has little or no odor, was the officer smelling an unusually strong beverage flavoring such as that of beer or wine?
Does the officer contend that he can tell what the defendant was drinking, when, and how much?
Does or did the defendant simply have bad breath or acetone (caused by diabetes)?
Was the defendant belching prior to the officer smelling his breath?
Did the presence of an odor of alcohol have an instrumental effect in the forming of the officer’s opinion of intoxication?
Was the defendant’s last drink within one hour of driving?
Speech
Was the officer familiar with the defendant’s normal speech prior to the arrest?
Does the defendant normally speak in a thick, slurred, stuttering, and/or confused manner?
Did nervousness, anger, or embarrassment affect the defendant’s speech?
Are there any other witnesses to the defendant’s speech characteristics within an hour of the arrest?
Did the police report permit any alternatives to slurred speech, such as “good,” “fair,” “repetitive,” and “fast?”
Was the officer able to understand the defendant’s answers to the numerous questions?
Does the defendant have an accent?
Is English the defendant’s native language?
Do any audio or video tapes exist?
Field Sobriety Tests (FSTs)
Initial Considerations
Did the tests consist of the federally recommended ‘‘standardized’’ battery of tests: walk-and-turn, one-leg stand, and horizontal nystagmus?
-If so, were they administered and scored as recommended?
-If not, why were tests not approved by NHTSA used by the officer?
Can the FSTs be suppressed at a motion hearing?
Should the officer and prosecutor be instructed to refrain from using such terms as ‘‘test’’ or ‘‘fail’’?
When was the officer trained in FSTs?
Has the officer received refresher courses in FSTs?
Has the officer received ARIDE training?
Is the officer an instructor for FSTs?
Defendant’s Condition
Was the defendant 50 pounds or more overweight?
Was the defendant 65 years of age or older?
Was the defendant suffering from any illness affecting his balance or coordination?
Was the defendant taking any drugs or medication that might affect his balance?
Did the defendant have any physical disabilities affecting his ability to take the tests?
Was the defendant upset by or injured in a traffic collision?
Was the defendant suffering from any emotional reactions to the procedure - fear, embarrassment, anger, nervousness?
Was the defendant wearing shoes with high heels while performing the tests?
Administration of Field Sobriety Tests
Were the tests given on a smooth and level area?
Was the area covered with gravel, loose dirt, or other possible obstructions?
Were the tests administered near passing vehicles, creating nose and wind waves?
Did the lighting conditions impede the defendant’s successful performance?
Did the weather conditions make the tests more difficult to perform?
Did the police vehicle have flashing lights creating a strobe effect?
Could unclear instructions by the officer have contributed to test results?
Was the defendant given the opportunity to practice each of the tests once before attempting them? Why not?
What was the physical line used in the walk-the-line test?
Did he demonstrate to the defendant by first performing each test?
Does ‘‘passing’’ involve a subjective opinion by the officer?
Had the officer already formed an opinion that the defendant was intoxicated?
Are there any objective criteria?
Did the officer use negative scoring?
Did the officer take into consideration the ‘‘impaired learning curve’’ (fear, nervousness) in assessing pass/fail?
Corroboration
Were any videotapes or photographs taken of the defendant performing the tests?
Were any audio or video devices available to the officer, if so, and they were not used, why not?
Are there any defense witnesses who observed the tests being given?
Were any potential witnesses prevented by the police from viewing the tests?
Did the officer diagram the walk-the-line and/or finger-to-nose tests as they were performed?
Was he capable of recalling all details when he later drafted his report?
Can a comparison of the defendant’s signature and/or handwriting be effectively made?
Horizontal Gaze Nystagmus (HGN)
Admissibility
Is evidence of the HGN test admissible at trial?
If so, is it available to prove consumption of alcohol only (not impairment)?
Is the officer qualified as an expert?
Does the test pass the state and/or Frye standards?
Does the evidence consist of testimony as to the indicated blood-alcohol level, or as to whether the defendant passed or failed?
Foundation
Was the officer qualified to administer the HGN test?
Has he had sufficient training and experience?
Is he familiar with the physiological theory behind the test?
Is the officer aware of the many sources for error inherent in the test?
Administration
Was the test administered according to the standardized procedures?
Did the officer ask the defendant if he was wearing contacts and note the answer?
Did the officer have the defendant remove glasses before testing?
Did the officer tell the defendant, ‘‘I am going to check your eyes’’?
Did the officer instruct the defendant: ‘‘Keep your head still and follow this stimulus with your eyes only’’?
Was the defendant told: ‘‘Keep focusing on this stimulus until I tell you to stop’’?
Did the officer hold the stimulus 12 to 15 inches from the defendant’s nose and slightly above eye level?
Pupils not equal in size may indicate a head injury; did the officer check to see if the defendant’s pupils were equal in size?
Eyes that don’t track together could indicate a possible medical disorder, injury, or blindness; did the officer check the defendant’s eyes for the ability to track together?
Did the officer move the stimulus smoothly?
Did the officer move the stimulus two seconds out, two seconds back, for each eye?
Was the stimulus moved to maximum deviation, and held for four seconds for each eye?
Did the officer check to see if the onset of nystagmus occurred before 45 degrees?
Was the sclera (white of the eye) visible?
Did the officer check for each clue at least twice in each eye?
Was the defendant facing away from flashing lights?
Did the defendant exhibit the standardized clues?
-Lack of smooth pursuit
-Distinct nystagmus at maximum deviation
-Onset of nystagmus prior to 45 degrees
-Did the defendant exhibit other clues?
-Did the defendant sway noticeably during the test?
-Did the defendant keep his head still during the test?
Does this testimony conflict with the officer’s earlier or later testimony that the defendant was staggering, weaving, or unstable on his feet?
Sources of Error
Was the angle of onset measured accurately and honestly?
Was the angle of onset measured with a template, or by estimate?
Has the officer received training in estimating angles?
Has the officer undergone recent verification of his ability to estimate angles?
Did the officer simply use the defendant’s shoulders to measure 45 degrees?
Was the jerking of the eye observed by the officer due to his moving the focal object in a jerking manner?
Is there any evidence corroborative of the officer’s testimony concerning the angle?
Did the officer use the objective scoring system recommended by the NHTSA?
Are there any sources of possible error in the test?
Is the officer aware of physiological grounds for error?
Had the defendant consumed coffee, smoked a cigarette, or taken an aspirin?
Did the defendant suffer from any physiological problems that would affect nystagmus, such as influenza, streptococcus, vertigo, or epilepsy?
Is the defendant hypertensive or hypotensive?
Was the defendant carsick?
Were there any inner ear problems?
Was the defendant suffering from eyestrain or eye muscle fatigue?
Is the officer aware of the effects of circadian rhythm on the onset of nystagmus?
Walk-and-Turn
Was the test administered in accordance with the standardized procedures?
Were the required conditions for the administration of this test met?
Was the test conducted on a dry, hard, level, non-slippery surface?
Was there a designated straight line?
Was the test administered under relatively safe conditions?
Were the proper instructions given?
Did the officer tell the defendant: ‘‘Place your left foot on the line’’?
Did the officer further explain: ‘‘Place your right foot on the line ahead of the left foot, with the heel of your right foot against the toe of your left foot’’?
Was the defendant told: ‘‘Place your arms down at your side’’?
Was the defendant instructed: ‘‘Keep this position until I tell you to begin; do not start to walk until I tell you to do so’’?
Did the officer verify that the defendant understood the stance was to be maintained while instructions were given?
If the defendant lapsed from the stance during the instructions, did the officer cease instructions until the stance was resumed?
Did the officer tell the defendant that he would be required to do nine heel-to-toe steps down the line, turn around, and take nine heel-to-toe steps up the line?
Did the officer demonstrate several heel-to-toe steps?
Did the officer demonstrate the turn?
Did the officer tell the defendant to look at his feet, keep arms at sides, count steps aloud, and not to stop walking until the test is completed?
Did the officer ask the defendant whether he understood and re-explain what was not understood?
Were the proper procedures followed while the defendant performed the test?
Was the defendant told to begin?
If the defendant staggered or stopped, did the officer allow him to resume from the point of interruption rather than go back to the beginning?
The officer should not have followed alongside the defendant.
The officer should not have been within three or four feet of the defendant during the test.
Did the defendant exhibit any of the standardized clues?
-Lose balance during instructions (feet must break apart from the heel-to-toe stance);
-Start walking too soon;
-Stop while walking to steady self;
-Miss heel-to-toe while walking (by 1/2 inch or more);
-Raise arms from side while walking (6 inches or more);
-Step off the line;
-Turn improperly;
-Take wrong number of steps.
One-Leg-Stand
Was the test administered according to the standardized procedures?
Were the required conditions for the administration of the test met?
Was the test administered on a smooth, level surface?
Was the lighting adequate?
Were the proper instructions given?
Was the defendant told to stand with feet together and arms at sides?
Did the officer tell the defendant not to start until told to do so?
Did the officer ask the defendant if he understood?
Was the defendant told to stand on either foot with the other foot held straight and about six inches off the ground, toes pointed out?
Did the officer demonstrate the proper stance?
Did the officer instruct the subject to count from 1 to 30 by thousands until told to stop?
Did the officer demonstrate the count for several seconds?
Did the officer ask the defendant if he understood, and if not, did the officer re-explain? Were the proper procedures followed while the defendant performed the test?
Did the officer tell the defendant to begin?
If the defendant stopped or put his foot down, did the officer allow him or her to begin at the point of interruption?
Was the defendant permitted to remove his shoes?
The officer should not stand within three feet of the suspect during the test.
The officer should not move around during the test.
Did the defendant exhibit any of the standardized clues?
-Sway in trying to balance;
-Put foot down;
-Hop;
-Raise arm from side 6 inches or more.
Preliminary Breath Test (PBT)
Was the device approved by State Statute? (Alcosensor III and Alcosensor FST (Washington State)
Did the officer advise the subject prior to the test that the PBT was voluntary?
Did the operator perform the test according to the policies and procedures approved by the state toxicologist?
Did the operator will perform the following test protocol?
-The operator shall advise the subject that this is a voluntary test, and that it is not an alternative to any evidential breath alcohol test;
- The operator shall determine by observation or inquiry, that the subject has not consumed any alcohol in the fifteen minutes prior to administering the test. If the subject has consumed alcohol during that period, the officer should not administer the screening test for probable cause purposes until fifteen minutes have passed. If the subject responds that they have not consumed any alcohol in the last fifteen minutes, the officer may offer the subject the opportunity to provide a breath sample into the PBT;
-Ensure a blank test result is obtained;
-Have the subject exhale into the mouthpiece with a full and continuous exhalation;
-Observe the results.
Breath Tests
Breath Analysis
Was the machine properly certified and maintained?
Was the operator properly trained and certified?
Was the machine accurately calibrated?
Was the simulator solution mixed correctly?
Could the alcohol in the solution have become depleted?
What was the temperature of the solution?
Could there have been leakage in the vapor tube?
Could radio frequency interference (RFI) have affected the reading?
What possible sources of RFI existed in the breath machine’s environment?
Does the machine use infrared spectroscopy?
Is it specific for ethyl alcohol?
What compounds found on the human breath will it detect as ‘‘alcohol’’?
Does the machine have an acetone detector? If yes, was it working properly? If no, why not?
Does the machine have an acetaldehyde detector? If yes, was it working properly? If no, why not?
Is the client a diabetic or has he been fasting?
What compounds containing the methyl group has he ingested or been exposed to?
Could the breath test have been conducted during the client’s absorptive phase?
Had the client recently eaten food before drinking?
Was mouth alcohol present?
Did the client burp, belch, hiccup, or regurgitate within 15 minutes of the breath test?
Did he consume any alcohol within 15 minutes of the test?
Did he observe the client constantly for 15 minutes before administering the test?
Could the operator have manipulated the observation period times (the officer manually types in the beginning of the observation period)?
Were there any other people in the BAC room/area during the observation period that could have been distractions to the officer?
Does he wear dentures, use dental adhesive, or have dental caps that could trap alcohol?
Did he use any mouthwash, cough syrup, throat spray, breath freshener, or other product containing alcohol?
What was the client’s body temperature at the time of the test?
Could the client’s breathing pattern have affected the breath test?
Could stress have had an effect on the test?
Was a sterile new mouthpiece for both breath tests used?
Was the machine purged with room air containing alcohol vapor from the client or previously tested suspects?
Do the machine’s records indicate any failures or mechanical problems before or since the test?
Has the machine been modified in any way affecting its status as a state-approved device?
Is operator/officer familiar with the theory and operation of the BAC machine in use?
Did he follow the manufacturer’s checklist? Can he recall each step?
Is the machine specific for alcohol?
What other compounds found on the breath will be reported as alcohol by the machine?
Could the client have had acetaldehyde in his system? Acetone? Ketones? Paint or glue fumes? Other compounds?
Was there any source of radio frequency interference in the area of the machine when the client was tested?
Any police transmitters? Walkie-talkies? Televisions? Electric door locks? Microwave ovens? Police car transmitters in the parking lot? Teletype machines? Computers? Radios? Fluorescent lighting?
Could the machine have been affected by a mechanical or electrical problem, such as a drop in line voltage?
How many malfunctions are recognized as possible by the manufacturer?
Are all of these detected by the machine’s internal computer?
Would a defect in the computer or its software be detectable?
Were all operating temperatures as required by the manufacturer?
Could condensation have formed in the breath tube as a result of being operated at an improper temperature?
Were there any possible problems with the machine’s temperature, humidity, optics, or age?
Was a self-checking diagnostic system available in the BAC machine?
Was it run immediately before or after the client’s test? Why not?
Are there any generic problems with breath testing?
Can the prosecution establish that the client’s partition ratio was 2100:1?
Blood Draws
Blood Analysis
Was the laboratory conducting the analysis properly licensed?
Was the individual drawing the blood sample qualified and/or licensed?
Was the laboratory technician who analyzed the sample properly licensed?
Was the equipment calibrated accurately?
Was the syringe used to withdraw the sample sterilized?
Was the arm swabbed with alcohol or any other substance that could contaminate the sample?
Did the blood sample come from the client’s artery or vein?
Is there a regulation as to which must be used?
Would an arterial sample give a falsely high BAC?
Would a venous sample give a falsely high BAC?
Was the blood sample refrigerated at all times?
Was the proper preservative added and in the correct amount?
Could sodium fluoride have caused a higher BAC because of a ‘‘salting out’’ effect?
Was the proper anticoagulant added and in the correct amount?
Was the vial properly sealed, or could evaporation have caused an increased BAC?
Can the prosecution account for the chain of custody of the analyzed sample?
What method of analysis was used?
If gas chromatography was used, were there any sources of radio frequency interference in or near the laboratory?
If the Kozelka-Hines (dichromate) method was used, could acetone, acetalde-hyde, or other substances have caused a false BAC?
Was the sample one of a larger batch of samples analyzed en masse?
Did the analyzed sample consist of whole blood or of serum/plasma?
If serum/plasma, has the laboratory adjusted the BAC downward to allow for the serum/plasma concentration being 15 to 20 percent higher?
If so, did the laboratory use an average conversion ratio? Was that ratio demonstrably applicable to the client’s sample?
Is a portion of the blood sample available to counsel for independent analysis?
Urine Tests
Is urinalysis an approved method of blood-alcohol analysis?
Was a more accurate method available?
Were duplicate samples obtained?
Was the laboratory conducting the analysis properly licensed?
Was the laboratory technician who analyzed the sample properly licensed?
Was the equipment accurately calibrated?
Was the sample one of a larger batch of samples analyzed en masse?
How long after the arrest was the sample obtained?
Was the client required to void his bladder 20 minutes before producing a sample?
Did he void incompletely on purpose?
Is it possible to void completely? Did old urine involuntarily left after a ‘‘complete’’ void contaminate the new urine?
Did the urinalysis assume a urine/blood ratio of 1.33:1?
What evidence exists of the client’s actual ratio?
What range of possible BACs would be obtained by applying the range of possible urine/blood ratios?
Could the urine sample have been contaminated?
Could the client have had a substance on his hands that could have contaminated the sample urine?
Was the sample jar sterile?
Was the proper preservative added and in the correct amount?
Was the urine sample refrigerated at all times?
Could the presence of Candida albicans in the urine sample have caused the production of alcohol?
Was the vial properly sealed, or could evaporation have caused an increased BAC?
Can the prosecution account for the chain of custody of the analyzed sample?
What method of analysis was used?
If gas chromatography was used, were there any sources of radio frequency interference in or near the laboratory?
If the Kozelka-Hines (dichromate) method was used, could any substances other than alcohol have caused a false BAC?
Is a portion of the urine sample available to counsel for independent analysis?
Medical Defenses
The BAC, field sobriety test performance, or physical observations (that look like intoxication) may be explained by the following diseases or conditions
Does the driver suffer from gastroesophageal reflux disease (GERD)?
Does the driver suffer from diabetes?
Does the driver suffer from chronic obstructive pulmonary disease (COPD)?
Does the driver suffer from post traumatic stress disorder (PTSD)?
Does the driver suffer from Parkinson’s disease?
Does the driver suffer from cerebral palsy?
Does the driver suffer from multiple sclerosis?
Does the driver suffer from Ménière's disease?
Does the driver suffer from head injuries or concussions?
Does the driver suffer from foot, leg, or back problems or injuries?
Does the driver suffer from an eye condition?
Legal Defenses
The Stop/Contact
Did the officer have probable cause to stop the client’s car?
Are there specific and articulable facts present?
Did probable cause depend at least in part on a tip?
Is the informant known and reliable?
Was the information forwarded by a dispatcher or other source, constituting ‘‘double hearsay’’?
Is there any risk of a jury hearing evidence of the informant’s information?
Detention
Did the officer have probable cause to detain the client for further investigation?
Was the detention unreasonably long in time?
Arrest
Did the officer have probable cause to arrest the client?
Did the officer have legal authority to make an arrest?
Did a lawful arrest precede any blood-alcohol test or interrogation?
Was the evidence used by the officer to determine probable cause to arrest, validly obtained?
Sobriety Checkpoints
(Not legal in Idaho, Iowa, Michigan, Minnesota, Oregon, Rhode Island, Texas, Washington, Wisconsin, and Wyoming)
Did the client’s DUI stop result from a roadblock or checkpoint?
Is there a legislatively developed procedure for roadblocks?
Do guidelines exist by statute or case precedent?
Did the roadblock or checkpoint comply with acceptable standards?
Was the decision-making process accomplished at the supervisory level?
Were effective limits placed on the discretion of officers at the checkpoint?
Was the checkpoint administered in a safe manner?
Was the location chosen a reasonable one?
How intrusive were the time and duration of the checkpoint?
Were sufficient indicia of authority clearly visible to the public?
Was the length of detention minimal?
Was there sufficient advance publicity as to the time, location, and nature of the checkpoint?
What reports, memoranda, notes, etc., are available through discovery?
Was the roadblock valid under the relevant provisions of the state constitution?
Incriminating Statements
Did the client make any incriminating statements?
Was the statement given as a result of custodial interrogation?
If under arrest, was Miranda given?
If Miranda was advised, did the defendant waived the right to remain silent?
Is the statement relevant to the issue of intoxication?
Does any probative value outweigh the prejudicial effect?
Is the appropriate procedure for suppression a pre-trial motion, motion in limine, an objection, or a motion out of hearing of the jury?
Refusal to Submit to Chemical Testing
Do the client’s words and/or conduct constitute a refusal?
If arguably they do not, does any probative value outweigh the prejudicial effect?
Can the refusal be suppressed?
Was the refusal due to consciousness of guilt?
Can the prosecution lay a foundation showing the reason for the refusal?
Did the client refuse to take field sobriety tests?
Suppressing Blood-Alcohol Evidence
Did the client consent to testing?
Was he advised of the implied consent warnings?
Were these warnings provided in a timely manner prior to the breath test request?
Did the defendant express confusion after the reading of the implied consent warnings?
Did the officer read the implied consent warnings ver batum?
Was the consent obtained through coercion?
Is there any independent evidence of the consent?
Did the client have a right to a choice of tests?
Was he advised of this right?
Was the client denied access to counsel before submitting to a test?
Did the officer check the subject’s mouth more than 15 minutes prior to the test (or according to the State statute)?
If the officer found a foreign substance in the subject’s mouth, was it removed and a new observation time started?
Was a blood sample obtained through excessive force?
Was the client denied an opportunity to have an independent blood-alcohol test?
Did the officer advise him of this right?
Did the officer assist or offer to assist in obtaining the independent sample?
Can the prosecution establish a sufficient foundation for the introduction of the blood-alcohol evidence?
Is the blood or urine sample available for re-analysis?
Miscellaneous
What is the reputation of the reporting/arresting officer(s)?
Language Issues: Did the officer get a language interpreter for the interpretation of the implied consent warnings?
We also serve all areas of Snohomish County including Arlington, Bothell, Edmonds, Everett, Lake Stevens, Lynnwood, Marysville, Mill Creek, Monroe, Mountlake Terrace, Mukilteo, and Skagit County including Anacortes, Burlington and Mt. Vernon, and King County including Seattle, Redmond, Kirkland, and Bellevue, and Island County and Whatcom County with aggressive defense representation.