DUI Defense Can Include A Variety of Strategies

It is not illegal for licensed drivers over the age of 21 to drink and drive. If this statement does not sound right to you; you should understand why it is so important to have the services of a DUI attorney in the event you get charged - because that statement is 100 percent true. Let's clarify a few things. First, there is a difference between having a drink and driving, and driving drunk. Second, there is a difference between having a drink and driving, and driving impaired. Third, there is a difference between failing a blood alcohol check, driving drunk or impaired, and driving legally after having consumed alcohol. With so many variables that go into determining what can and cannot happen behind the wheel, especially when alcohol or drugs are involved, how does anyone determine what is legal or illegal? The National Highway Traffic Safety Administration (NHTSA) has published close to 11,000 pages of information in manuals, past and present, that delineate the procedures that must be followed during a DUI investigation. As you might imagine, not very many people, police officers included, have all of that information in their heads. Couple the vast number of procedures with the staggering number of offenses (except for your run-of-the-mill traffic violations, there are more arrests and citations for Driving Under the Influence--DUI--than for any other crime) and you arrive at the reason a DUI defense can include such a wide variety of strategies. There is simply too much happening, too many times, for mistakes to not be made--mistakes that lead to improper citations and arrests.

For a DUI conviction to be made, the prosecution must show that:
  • You were driving a vehicle
  • While driving the vehicle, you were impaired by alcohol, drugs, or a combination of the two
  • The impairment was appreciable and impacted your ability to drive safely, or
  • Your blood alcohol level was beyond the established legal limits, regardless of ability
A Few of the Most Common Defenses

The most common way to attack a DUI charge is to challenge the evidence. Make the prosecution prove that the officer's observations were accurate, that the evidence was obtained properly and was not compromised, and that a breathalyzer (if given) was done according to proper procedure and gave accurate results. A few examples of these types of defenses include:

The stop should never have been made. Known as an improper stop, this defense argues that the officer had no justifiable reason (probable cause) to pull you over. Therefore, your alleged impairment is immaterial.

Improper Testing. There are three main areas where testing can be compromised: during the field sobriety test, during the breathalyzer test, and during a blood test. Each of these, if applicable, can be challenged.

Field sobriety test.

A test must be given according to certain standards, and the results must match the officer's findings. A favorite of police officers is the horizontal gaze nystagmus (HGN) test, which compares the movement of the eyes of an impaired person against a control, the standard movement of a non-impaired person's eyes. These tests are often successfully challenged. There are also alphabet and counting tests which can be challenged if it can be shown that you could not understand the instructions or the test was performed in a manner meant to confuse you.


A breathalyzer must be properly maintained and calibrated if it is to be effective. Many times, due to manpower shortages, financial constraints, or simple laziness or negligence, these devices are not kept up to standards. In addition to the device being maintained, an officer's qualification on the device must be current. Even if both of these factors are found to be in place, an attorney may argue that there were mitigating factors, such as vomiting, A breathalyzer must be properly maintained and calibrated if it is to be effective. Many times, due to manpower shortages, financial constraints, or simple laziness or negligence, these devices are not kept up to standards. In addition to the device being maintained, an officer's qualification on the device must be current. Even if both of these factors are found to be in place, an attorney may argue that there were mitigating factors, such as vomiting, indigestion, or another medical issue that interfered with the proper administration of the test. If the officer did not accommodate for these circumstances, the results may be disqualified.
With expert testimony, it may be shown that the breathalyzer registered a non-impairing medication or other chemical as alcohol. The machines are also prone to false readings if certain foods, drinks, or medications are taken within a certain period of time prior to the administration of the test.

Blood Test.

If you refuse or are unable to perform a breathalyzer, a blood test may be ordered once you have been taken into custody. Even if the test shows that your blood alcohol level is beyond the legal limit, your attorney can question the handling of the evidence, find tampering with the sample, or show a break in the chain of custody.

Procedures not followed. Every state has slightly different requirements when it comes to what information an officer is required to share, but there are a few warnings and pieces of advice that are either federally mandated or common to nearly all jurisdictions:

Miranda rights

If you are arrested, the officer must read you your Miranda rights. These are the rights you hear given on television: you have the right to be silent, you have the right to an attorney, and so forth. If your Miranda rights are not read, the information you provide after arrest may be found inadmissible Note: Miranda rights do not have to be read if you have not been arrested. This is why it is so important that you do very little talking prior to an arrest. Keep your answers short, polite, and to-the-point. Do not volunteer information. If you know your blood alcohol limit is going to be too high, you may want to say nothing at all until you have been arrested, read your rights, and your lawyer is present.
Many states will suspend a driver's license immediately if you refuse a blood alcohol test. Most states require that you are made aware of this consequence. Other states require that the driver is given the choice between different tests, so the refusal of just one is not sufficient cause to suspend a license. When officers do not follow the rules or bend the law, test results may be thrown out and/or parts of the evidence might not be admitted in court.

The officer's testimony is flawed

One of the more common defenses is challenging the observations of the officer that led to the arrest. This often involves introducing witnesses who can substantiate your version of the events. While most of these arguments will not negate a DUI conviction, in and of themselves, they may poke holes in the officer's story or lead to a challenge of testing validity.
Since much of an officer's testimony against you will be based on observations, you can challenge those observations and show them to be false. Typical evidence will include the way you were driving, such as crossing the center line, running a stop sign, or irregular speeds. They may also talk about your physical characteristics, such as bloodshot eyes, your speech patterns, or your lack of coordination.
A few of the things you might argue are: you appeared to be sober, you did not drink, the behavior which caused you to be pulled over was due to "xyz" and not alcohol (conversation, a bee in the car, spilled coffee in your lap).
It might also be explained that a physical disability and not alcohol limited your ability to pass the field sobriety test, a language or hearing impairment caused you to not understand the directions, or your eyes were bloodshot due to allergies, and not alcohol.

Affirmative Defenses

In addition to the most common DUI defenses, your lawyer may choose to follow what is known as an "affirmative defense." An affirmative defense is a fact or set of facts that, by their very nature, mitigate a defendant's actions to the degree that what may have been otherwise unlawful, under the given set of circumstances, negates the conduct. Though not applicable for a DUI, the most widely known, and most commonly used, affirmative defense is self-defense.

Some of the affirmative defenses that may be argued by your attorney in a DUI case include:

Involuntary Intoxication

This defense is used when it can be reasonably argued that you had no knowledge of being intoxicated. You did not have any alcohol, to the best of your knowledge, but somebody must have spiked your drink, etc.

Mistake of Fact

Along the same lines as involuntary intoxication, your attorney will argue that you had no reason to believe that you were intoxicated. This is often used when you had every reasonable belief that the effects of a drink or medication had already worn off

Involuntary or Forced Driving

Also known as driving under duress, this defense is used when it can be shown that you only drove the vehicle because somebody was forcing you to, and your compliance was necessary to avoid serious injury or death.


To argue entrapment, you must be able to show that you normally would not have driven while drunk or impaired, but an officer asked you to do it, and then arrested you for it. It must be evident that you would not have gotten behind the wheel if the officer had not entrapped you. An example of an entrapment case: Travis Peterson knew he drank too much at a concert in Wisconsin. He tried to sleep it off in his car, but the police told him he had to drive home so they could proceed with their closure of the parking lot. He was then pulled over for DUI. The court agreed that this was entrapment.

Greater Good

It may be argued that your actions were done for the greater good, and you had to drive under the influence to avoid or prevent something far worse from happening. This is often used when you would not have gotten behind the wheel, but you needed to get an injured person to the hospital, were fleeing from somebody who was attacking you, etc. Sometimes this is called a "necessity" defense.

A Few of the Less Common Defenses

While the most common of the DUI defenses are listed above, there are many others that have been used successfully when a special situation, set of circumstances, or evidence warranted.

Rising blood alcohol concentration

Most times, it is the prosecution arguing that, due to the time it took to administer the test, your blood alcohol level was lower than the .08 limit, but the alcohol level was higher while you were driving. Sometimes, however, the defense is able to argue the opposite. Your blood alcohol level was below the legal limit while you were driving; however, newly consumed alcohol, which had not been fully absorbed into your body while you were driving, did become absorbed during the time it took for them to administer the test. This delay raised your BAC significantly enough to register as an unfair fail. This is sometimes called the "had one for the road" defense.

It wasn't me

Based on special circumstances, it can sometimes be shown that the officer could not prove that you were the one driving the car.


This defense requires evidence or substantiating testimony that an officer falsified a DUI report.

Civil Rights violations

Generally requiring substantiating evidence, if it can be shown that your civil rights were violated during the stop, testing, or arrest, the DUI may be thrown out.

You weren't driving

Different than the "it wasn't me" defense, this argument is used when a person has been arrested for DUI just for being in the car, but they never,in fact, drove the vehicle. Perhaps you were just sitting behind the wheel in a parking lot waiting for the effects of the alcohol to wear off when the officer confronted you.
REMEMBER: Driving while intoxicated or impaired is illegal. Further, it is never a good idea to consume even a single drink and drive a vehicle, regardless of the legality. When consuming alcohol, you should always opt for transportation options that protect you and others on the road. Even when all of the laws have been followed, however, there are times when people are falsely arrested or cited for DUI. In such a case, there are many ways to defend against the charges, but the first step is to contact an attorney who is skilled in such defenses.

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