The Court Of Public Opinion

Have you ever wondered how police can stop you at a DUI roadblock (aka sobriety checkpoint)? Doesn’t the Constitution require them to have probable cause before stopping you? Yes and no, explains Lawrence Taylor who heads up a team of California DUI attorneys that specialize in DUI defense.

The Constitution of the United States clearly says that police cant just stop someone and conduct an investigation unless there are articulable facts indicating possible criminal activity. So how can they do exactly that with drunk driving roadblocks? Good question. And it was raised in the case of Michigan v. Sitz, in which the Michigan Supreme Court striking down DUI roadblocks as unconstitutional. In a 6-3 decision, however, the U.S. Supreme Court reversed the Michigan court, holding that they were constitutionally permissible.

Chief Justice Rehnquist began his majority opinion by admitting that DUI sobriety checkpoints do, in fact, constitute a seizure within the language of the Fourth Amendment. In other words, yes, it appears to be a blatant violation of the Constitution. However, he continued, its only a little one, and something has to be done about the carnage on the highways caused by drunk drivers. The minimal intrusion on individual liberties, Rhenquist wrote, must be weighed against the need for — and effectiveness of — DUI roadblocks. In other words, the ends justify the means.

The dissenting justices pointed out that the Constitution doesnt make exceptions: The sole question is whether the police had probable cause to stop the individual driver. As Justice Brennan wrote, That stopping every car might make it easier to prevent drunken driving…is an insufficient justification for abandoning the requirement of individualized suspicion… The most disturbing aspect of the Courts decision today is that it appears to give no weight to the citizens interest in freedom from suspicionless investigatory seizures.

Rehnquists justification for ignoring the Constitution rested on the assumption that DUI roadblocks were necessary and effective. Are they? As Justice Stevens wrote in another dissenting opinion, the Michigan court had already reviewed the statistics on DUI sobriety checkpoints/roadblocks: The findings of the trial court, based on an extensive record and affirmed by the Michigan Court of Appeals, he wrote, indicate that the net effect of sobriety checkpoints on traffic safety is infinitesimal and possibly negative.

Note: The case was sent back to the Michigan Supreme Court to change its decision accordingly. But the Michigan Supreme Court sidestepped Rehnquist by holding that DUI checkpoints, though now permissible under the U.S. Constitution, were not permissible under the Michigan State Constitution, and ruled again in favor of the defendant — in effect saying to Rehnquist, If you wont protect our citizens, we will. A small number of states have since followed Michigan’s example.

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As many people know, the Fourth Amendment of the Constitution of the United States forbids the unreasonable search or seizure of U.S. citizens. Generally, there must be probable cause to arrest or search persons or their private property, which means that the officer must have a reasonable suspicion based on articulable facts that some wrongdoing has occurred. How, then, are law enforcement agents able, constitutionally, to stop motorists at sobriety checkpoints?

According to constitutional law, some stops are not considered seizures of a person. This is the case with a so called stop and frisk in which an officer detains a person for a very brief period of time and quickly checks their outer clothing for contraband. Sometimes, if a person is detained for less than 48 hours, it is not considered a seizure. However, this is not true for DUI roadblocks. The U.S. Supreme Court has held that stopping someone at such a roadblock does constitute a seizure of that person under the Fourth Amendment.

One however further and the language of the Constitution gets tangled up in the thicket of constitutional interpretation and case law. The Supreme Court could have claimed that these stops without probable cause are constitutional under the doctrine of exigent circumstances. The Court has repeatedly held that when an officer believes evidence is about to be destroyed, he can perform a search without a warrant. However, this doctrine seems only to apply to searches. Instead, it appears as though the Court used a balancing test, common in other areas of constitutional law, whereby the minimal intrusion on individual liberties was weighed against the need for and efficacy of roadblocks and found to be less important.

To some, it seems that the Court has simply carved out of the Constitution another exception, similar to the one for exigent circumstances, for sobriety checkpoints. DUI defense attorneys often refer to this as the DUI exception to the Constitution. Critics and dissenting justices have pointed out that the Fourth Amendment does not make exceptions. The only question is whether the officer has probable cause to stop the individual driver. Justice Brennan wrote, That stopping every car might make it easier to prevent drunken driving…is an insufficient justification for abandoning the requirement of individualized suspicion.

The Court’s justification for the exception rested on the assumption that DUI roadblocks are necessary and effective. However, there is some controversy as to whether this is true. The National Highway Traffic and Safety Administration (NHTSA) recently released data on alcohol-related deaths in 2003 and 2004. There was a decline in such fatalities in 2004, and most of the drop occurred in states that don’t use sobriety checkpoints. Critics already concerned about the large outlay of resources required to operate checkpoints are doubly concerned if spending the resources does not even necessarily prevent DUI offenses.

On the other hand, law enforcement agents believe that checkpoints are effective even if intoxicated drivers get around them because they spread the message that driving under the influence is not tolerated. Officers often provide informational pamphlets to motorists stopped at checkpoints, explaining the consequences of drunk driving, which may have a deterrent effect.

Copyright 2006 Lance Knowlton

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Driving under the influence (DUI), commonly known as drunk driving, means operating a motor vehicle in a public area while intoxicated. It is considered a criminal offence to drive a vehicle after consuming alcoholic beverages. DUIs are also considered an offense when boating and piloting aircraft.

Driving under the influence of alcohol is a misdemeanor, and depending upon the nature of jurisdiction, it is sometimes referred to as driving while intoxicated (DWI), operating while intoxicated (OWI) or operating a motor vehicle while intoxicated (OMVI). DUI is perhaps one of the main reasons for motor vehicle crashes. The excess use of alcohol impairs the nervous system, thereby adversely affecting the balance of mind and body.

While driving under the influence is regarded as a serious offense in almost all states, the punishment generally depends upon the DUI statute in the state. If you are charged with driving under the influence, blood and urine levels are first tested. Also, a breath test is administered. If it is proved that your blood alcohol content is above the legal limit set by the states statute, you will be arrested. In some states, if any one is proved to have a breath test of .08 or higher, they are said to be under the influence of alcohol.

In all cases, if you are driving under the influence of alcohol, there is a good chance that you will lose your license, serve time in prison and serve a lengthy probation period. The charge could also affect future employment. DUI laws are quite complex, and offenders generally seek assistance of a competent and experienced lawyer to help them out.

Offenders are generally charged large fines based on the court proceedings and test results. Usually, first-time offenders are charged a fine, and there are certain provisions to get keep punishments at a mimimum.

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Let’s say you had a drink or two but don’t feel you are under the influence of alcohol. However, you are arrested on suspicion of drunk driving and offered the choice of taking a breath or blood test (or, in some states, urine). Most DUI suspects choose the breath test — a choice which could doom your chances to prove your innocence. Consider the following advice when deciding which test to take:

1. If you smoke cigarettes, you may want to pass on that Breathalyzer mouthpiece the officer is handing you. Scientific research has shown that smoking can raise the test result considerably — enough to get you charged and convicted of drunk driving. This is because most breath analyzing devices will falsely report acetaldehyde as alcohol. Acetaldehyde is a compound produced in the liver in small amounts as a by-product in the metabolism of alcohol. However, scientists have found acetaldehyde concentrations in the lungs of smokers are far greater than for non-smokers. (Origin of Breath Acetaldehyde During Ethanol Oxidation: Effect of Long-Term Cigarette Smoking, 100 Journal of Laboratory Clinical Medicine 908). Translated: because breathalyzers cant tell the difference between alcohol and acetaldehyde, cigarette smokers will have a higher blood-alcohol reading.

2. If you are a diabetic with possible low blood sugar, you should also avoid the breath test. A well-documented by-product of hypoglycemia (low blood sugar) is a state called ketoacidosis, which causes the production of acetone — and acetone, like acetaldehyde, will be reported by the Brethalyzer as alcohol. In other words, the Breathalyzer will read significant levels of alcohol on a diabetics breath where there may be little or none. See Diabetes, Breath Acetone and Breathalyzer Accuracy: A Case Study, 9(1) Alcohol, Drugs and Driving (1993). To make matters worse, the reactions of a person in the early stages of a diabetic attack include dizziness, blurred vision, slurred speech, weakness, loss of coordination and confusion — the same symptoms which the patrol officer is looking for: the clear signs of a person under the influence of alcohol. And the officer’s observations are quickly followed by a failing performance on DUI field sobriety tests.

3. Are you on a low-carb diet? Or had nothing to eat in quite awhile? Avoid the Breathalyzer in a DUI investigation — for the same reasons stated in number 2. Perfectly normal, healthy individuals can experience temporary conditions of low blood sugar after consuming small amounts of alcohol, resulting in exaggerated but false symptoms of intoxication. Fasting glycemia can exist where a person has not eaten in 24 hours or has been on a low-carbohydrate diet. Production of glucose in the liver is stopped while the alcohol is broken down. Result: the blood sugar level will drop, affecting the central nervous system — and producing symptoms of a person under the influence of alcohol and a higher breath test result.

4. If you have acid reflux or have burped or belched before taking the Breathalyzer, offer to provide a blood sample instead. The reason is that you will be breathing alcohol from your stomach into your throat and oral cavity, where it will stay for 20 minutes or so — to be breathed directly into the breath machine. This is not a good thing. The machine’s computer is multiplying the amount of alcohol in the breath sample by 2100 times to provide a reading of the alcohol in the blood. This is because it assumes the sample came from the lungs, not the stomach, and the average person has 2100 units of alcohol in his blood for every unit of alcohol in his breath (called the partition ratio). The Breathalyzer does not know that your breath sample is not from your lungs and that it should not multiply the alcohol level by anything. Result: false high readings — and a DUI conviction.

5. When you see that officer in the rear-view mirror, don’t reach for the mouthwash or breath spray to disguise the drink or two you’ve had. Most of them contain significant levels of alcohol (Listerine, for example is 27% alcohol) and create a mouth alcohol effect: they remain in the oral cavity for 20 minutes or so — just long enough to be breathed into the Breathalyzer, with the same results mentioned in number 4. Some breath machines have a mouth alcohol detector, but these are highly unreliable.

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If you have been arrested for DUI or DWI, it is obviously cause for concernbut not for despair. By hiring a quality defense lawyer who can protect your rights, there are a host of ways your case may be defendable. Thats why it would be a good idea to consider hiring one of Americas Top DUI and DWI Defense Attorneys now. Heres a few ways our lawyers may be able to win your case. Even if your case involves a drug, drugs, medicine or alcohol, they will help.

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.

BOOKING ROOM VIDEOS Many police stations videotape suspects at the police station, where their speech is clear and their balance is perfect, in spite of police testimony to the contrary.

IN-SQUAD VIDEOS more and more often, the suspects driving and performance on field tests is being recorded; often contradicting police testimony.

FAILURE TO PROVIDE SPEEDY TRIAL If a client is not provided with a trial within a certain period of time, which varies between states, through delays of the court or prosecutor, the charges must be dismissed.

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 persons true level by as much as 25% in healthy, uninjured individuals, and are not statistically reliable in severely injured persons.

BREATH TEST OPERATOR UNLICENSED Most states require a Breath Test Operator to possess a valid, unexpired operators 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 suspects breath test, the results of the suspects test are presumed invalid.

BREATH TEST OPERATOR LICENSE EXPIRED Most states require that a Breath Test Operator must possess an unexpired operators 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 defendants 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 defendants 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.

OFFICERS PRIOR DISCIPLINARY RECORD A police officers previous disciplinary record can be used to attack the officers credibility.

PORTABLE BREATH TEST INADMISSIBLE Most states prohibit the use of portable breath testing results as evidence at trial in a DUI case.

PORTABLE BREATH TEST IMPROPERLY ADMINISTERED The manufacturers of portable breath testing devices require a minimum of two tests to consider the results evidential in nature.

FAILURE TO CONDUCT OBSERVATION PERIOD Most states require 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 drivers 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 officers 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.

FAILURES TO PRODUCE DISPATCH TAPES Most stops of vehicles are recorded on dispatch tapes, as well as recording police communications regarding an arrest of an individual. Failure to preserve such tapes upon request can cause all evidence, which could have been recorded to be suppressed.

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 drivers record.

STATUTES OF LIMITATIONS A misdemeanor charge of DUI must be filed within a certain period of time (which varies between states) of the date of offense, or the charges will be dismissed outright.

PRIVATE PROPERTY A person who has not driven the car on a public highway cannot be suspended for drunk driving.

FAILURE TO DISCLOSE EXPERTS The failure of the prosecutor to disclose the states expert(s) will cause those witnesses to be barred from testifying against the defendant.

LACTATE RINGERS When hospital staff use lactate ringers during the treatment of a patient, the hospital blood serum results will report falsely elevated, and therefore invalid, readings.

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.

FORCED BLOOD DRAWS In some states, the police may not take a blood test against the drivers consent where there has not been an injury involved, or the result is inadmissible.

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The consequences of Driving Under The Influence, or DUI, charges are far reaching. The criminal justice system can be a complicated process and the penalties of a DUI are quite severe. You should be aware that in some cases, those convicted of a DUI are subject to significant fines, legal costs, court costs, and even jail time.

Every person facing this charge is in need of a good defense and protection of their rights. The reason you need to obtain an experienced DUI lawyer is that research shows that many individuals arrested and charged with DUI are not guilty because they haven’t had too much to drink. While the State has a duty to enforce the law, persons accused of crimes such as driving under the influence are still innocent until proven guilty.

There are a number of opportunities to build a solid defense for these cases, as it was found that breathalyzer machines can often give false readings. Successful defense of a drunk driving charge requires specialized defenses. Attorneys that specialize in this particular type of case are best qualified to formulate your defense and protect your rights in court.

Who Gets Arrested for DUI

Statistics show that males between the ages of 16 and 24 are most likely to be arrested on DUI charges. Most individuals arrested are middle class working citizens. Sadly, DUI statistics also indicate that approximately one-third of those arrested are repeat offenders.

DUI Fines and Penalties

The penalties for DUI are different than those for DWI (Driving While Intoxicated), but are still severe and can result in long term negative consequences for you and your future.

The penalty for a first DUI offense can be limited to just a fine. However, the fines can vary and sometimes are very large. Also, in some states, fines may be doubled if a passenger under 16 years old is riding in your car.

But, depending on the jurisdiction, the penalty can also result in the revocation of your license, a criminal record, a short jail sentence, and/or public service. Prosecutors in many states have pressed for tougher penalties because many DUI suspects, especially repeat offenders, refuse to take the breathalyzer test. Unfortunately, these more severe penalties affect those who have been cooperative or have been wrongly accused.

For those who are repeat DUI offenders, you will generally face mandatory loss of license, jail time, and significant fines and court costs. So, just accepting the charges without a strong legal defense is a formula for personal disaster.

DUI Legal Defense

A DUI lawyer can help mitigate or reduce the charges and ensure that your rights are protected to the extent of the law. The plain facts are that many people arrested and charged with DUI are not guilty. Even if you have made statements at the time of arrest, they can be thrown out as part of the proceedings. A qualified DUI attorney will know all the details and the legal procedures involved.

The penalties for DUI are severe, and should be taken very seriously. Being found guilty of a DUI charge can have life-altering consequences for you and your family. So, think about it - can you afford to be without legal counsel? Not a chance!

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DUI. Driving Under Influence.

You’ve been told a thousand and one times that you shouldn’t drive and drink. Or take drugs for that matter. But when you do get into that sticky DUI situation, here are important information that will get you through your ordeal.

Arrested for DUI.
Once you’re arrested for DUI, this is what happens. The officer who caught you will immediately send a copy of the suspension or revocation form of your driver’s license with your sworn statement ( you’ll be made to sign it) to the Department of Motor Vehicles or DMV. DMW reviews the report and if they say the report is good, which is to your disadvantage, you may request a hearing to contest the suspension or revocation.

Confiscated license after the arrest.
Your driver’s license will be returned to you at the end of the suspension or revocation, provided that you pay a re-issue fee to the DMV and file a proof of financial responsibility. IF DMV finds out that there no basis for the suspension or revocation, your driver license will be issued or returned to you.

Order of Suspension and Temporary License.
This is given by the officer after the arrest for DUI. You may drive for 30 days from the date the order of suspension or revocation was issued, provided that you have California driver license and your driver license is not expired, or your driving privilege is not suspended or revoked for some other reason.

Administrative Hearing.
Once arrested, the officer will give you a Notice of Suspension which says that you have ten days to request an administrative hearing. A hearing is your opportunity to show that the suspension or revocation is not justified. It’s your chance to plead you case.

Suspension of driving privilege of you took the test.
If you are 21 years of age or older, took a blood or breath test, or (if applicable) a urine test, and the results showed 0.08% BAC (blood/breath alcohol concentration )or more:. A first offense will result in a 4-month suspension. A second or subsequent offense within 7 years will result in a 1-year suspension. If you are under 21 year of age, took a preliminary alcohol screening (PAS) test or other chemical test and results showed 0.01% BAC or more, your driving privilege will be suspended for 1 year.

Restricted License.
If you have work and you need to drive to work, you may apply for a restricted license to drive to and from work at any DMV field office. Refusal to take the chemical test.

You are required by law to take the chemical test to check the alcohol or drug content in your blood. There is no more urine test unless: The officer suspects you were driving under the influence of drugs or a combination of drugs and alcohol or both the blood or breath tests are not available. You can also take the urine test if you are hemophiliac (a disease wherein you have uncontrollable bleeding) or you are taking anticoagulant (prevents clotting of the blood) medication in for your heart condition.

Suspension of driving privilege if you refuse to take the chemical test. If you were 21 years of older at the time of arrest and you refused or failed to complete a blood or breath test, or (if applicable) a urine test: A first offense will result in a 1-year suspension. A second offense within 7 years will result in a 2-year revocation. A third or subsequent offense within 7 years will result in a 3-year revocation.

If you were under 21 years of age at the time of being detained or arrested and you refused or failed to complete the test: A first offense will result in a 1-year suspension. A second offense within 7 years will result in a 2-year revocation. A third or subsequent offense within 7 years will result in a 3-year revocation.

Difference between DUI arrest from suspension or revocation after conviction in criminal court. The DMV suspension or revocation is an administrative action taken against your driving privilege only. The suspension or revocation following a conviction in court is a mandatory action for which jail, fine, or other criminal penalty can be imposed.

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DUI defense is regarded as a highly specialized area of law, as it involves a series of scientific procedures including field sobriety tests. DUI cases are very complex and call for tremendous attorney expertise. Driving under the influence (DUI) legally refers to a serious offence caused by drunk driving. Its consequences are severe and may lead to punishments, penalties and stiff fines. Depending upon the nature and jurisdictions, DUI is known by different names such as driving while intoxicated (DWI), operating motor vehicle intoxicated (OMVI), operation under the influence (OUI) and operating while intoxicated (OWI).

DUI defense lawyers have to be armed with specific scientific as well as legal knowledge. DUI defense requires the defending counsel to also have a practical awareness of the operation of breath test equipment, hospital testing equipment and instruments utilized by forensic laboratories in the process of testing for intoxicants. A competent and qualified lawyer is aware of all kinds of loopholes, and has the ability to suppress evidence and produce good witnesses.

Another point to remember in DUI defense is that the laws pertaining to driving under the influence are complicated and differ from state to state. However, the statutes of all states have the common purpose of punishing driving under the influence of intoxicated substances. Punishments for driving under the influence have become severe in recent years. There is a good chance that there could be a restriction of license privileges for a stipulated period, mandatory minimum jail, and probation and vehicle forfeiture.

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