OUI / DWI Defense: Can You Fight A DWI Charge?

OUI / DWI Defenses: An Arrest Does Not = A Conviction

One of the first questions I hear from clients is, “Can you fight a DWI charge?”  Many people believe that if they were drinking and driving, and arrested for DWI / OUI, that they’re automatically guilty of drunk driving.  This is especially true if their breath alcohol level is above the legal limit.  However, that’s far from the truth.  There are DWI defenses that can be used to potentially get a dismissal of the case, reduction in the charges, or not guilty verdict.  Because of the technical nature of some of the DWI defenses I’ve discussed below, it only makes sense to speak to a qualified DWI / OUI lawyer.  Aside from the DWI defenses discussed below, you have to remember that the standard used by the police to make an arrest is quite low in comparison to the standard needed to find a person guilty of drunk driving.  As a result, there are people who are arrested for drunk driving, who may have a stronger case then they think.

How To Fight A DUI Charge

1.  Did the police have a valid basis to conduct the traffic stop?
If the officer did not legally stop your vehicle, then this could result in a dismissal of your case. A DWI / OUI attorney can review your case and conduct legal research to determine if the stop was valid.

2.  Did the officer properly administer the field sobriety tests? Unfair assumptions the field sobriety tests make.
It is not uncommon for the officer to improperly administer the exercises, which can be reviewed.   There are also several assumptions that the field sobriety tests make.  First, it is assumed that everyone has the physical capabilities to do the exercises perfectly.  However, weight and coordination differs in everyone.  Secondly, it is assumed that everyone has the emotional capabilities to do these exercises perfectly, and unfortunately the standard for doing these tests is extremely high.  Just like some people are better at taking the field sobriety tests, it only makes sense that some people will handle the pressure of taking these tests better then others.  Remember, that it is normal for most people to be nervous when they get arrested, and performing these tests under those types of conditions can be difficult.  Third, it is assumed that everyone can do these exercises in normal roadside conditions.  Typically there are cars driving by and other distractions that would prevent the average person from being focused.  Also, it is rare that the area where the exercises are performed is perfectly level.  Fourth, any mistake is assumed to be due to alcohol.  These are common sense arguments that are frequently used by attorneys to counter the legitimacy of the field sobriety exercises.

3.  An innocent explanation for bloodshot glassy eyes, flush face, slurred speech and bad driving.
Many times there are innocent explanations for bloodshot glassy eyes and slurred speech.  Fatigue, smoke, allergies and eye strain can cause bloodshot glassy eyes.  Poor driving can be explained due to cell phone use, using your GPS navigation, or talking to a passenger.  A drunk driving lawyer will be able to examine your case to see if any of these apply.

4.  The field sobriety tests have a very high standard.
The truth is that these exercises are challenging, even for someone who is physically fit and calm.  Unfortunately, it is very easy to fail a test based on the standards currently in place.  For example, both the one leg stand and walk and turn test only require two mistakes to result in a failed test.  When these issues are highlighted for a jury, it can be very effective.  I’ve even heard some attorneys refer to the exercises as roadside gymnastics.

5.  If you took a breath test, was the breathalyzer properly maintained, operated and working?
Most states require that the person who operates the breathalyzer be certified to do so, and that the breathalyzer be properly maintained and working.  There will be records that your lawyer will be able to get through the legal process to confirm whether these were issues in your case.

6.  There are certain assumptions the breathalyzer makes which may not apply to every person.
Because the breathalyzer calculates your blood alcohol based on breath alcohol, there are certain assumptions the breathalyzer makes that may not apply to you.  A drunk driving lawyer can discuss some of those assumptions with you to determine if there’s the possibility your breath results are inaccurate due to the specifics of your case.

7.  Factors that can cause an inaccurate breathalyzer reading.

  • Breathalyzer has a certain margin of error
  • Body Temperature
  • Breath Temperature
  • Breathing (hyperventilating or blowing too hard)
  • Length of time between test and initial traffic stop
  • Radio Frequency Interferent
  • Chemical Interferents Due to Certain Activities or Jobs: compounds most commonly mistaken for alcohol are ethylene, toluene, nitrous oxide, diethyl ether, acetonitrile and isopropanol
  • Mouth Alcohol: caused by burping, regurgitating, GERD (Gastroesophageal Reflux Disease), acid reflux, heartburn, dentures, braces, cavities, chewing tobacco, food impactions, food particles trapped between teeth

8.  Implied Consent and the Breathalyzer
Under the Implied Consent law, the officer is required to inform you of certain rights.  Otherwise, the breath results may be inadmissible.

9.  It’s impossible for the breathalyzer to analyze your breath results at the time you were driving.
A common argument is that it’s impossible for the breathalyzer to analyze your breath results at the time you were driving (which is when the DWI / OUI offense technically occurred).  As a result, the more time that passed between when you were stopped, and when you took the test, the stronger the argument is that the breathalyzer is inaccurate.

Now that we’ve reviewed some of the potential issues and defenses, we come back to the question, “Can you fight a DWI charge?’  The answer is “YES.”  Although not all of these issues and defenses arise in every case, it’s important to have your case properly evaluated.  So the real question isn’t “Can you fight a DWI charge?”, but “How to fight a DUI charge?”

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