DWI Defenses at Trial
As a former prosecutor in Westchester County, New York and now a
criminal defense attorney, I have handled countless
Driving While Intoxicated (DWI) charges both for driving while under the influence of alcohol and/ or
drugs. The best DWI defense is to be prepared and to anticipate the prosecution's
case to formulate an individualized DWI defense based upon the specific
facts of a DWI arrest and prosecution.
First, understand that very few cases go to
trial but when analyzing a DWI case it is best to review the facts as if the
matter was going to go to trial in order to identify the prosecution's
legal strategy. It is important to understand that an arrest for DWI does
not mean a conviction for DWI and there are countless defenses, below
are my top 10.
Bad drivers get arrested for DWI – Most DWI arrests start with a New York State Vehicle and Traffic
Law (VTL) infraction. Speeding, crossing a line, tailgating, running a
red light, running a stop sign, etc., are some of the most common tickets
issued. The problem is that if it is late at night or on a weekend, local
police and State Troopers are always looking for a DWI arrest and before
the officer even approaches the vehicle they are thinking "DWI Arrest".
Field Sobriety Tests are NOT Tests - The police call Field Sobriety Tests (FST), "tests" but they
are really an exercise to determine if there is probable cause to arrest
a motorist. These "tests" include the one leg stand, walk and
turn, eyes following a pen, etc. Most sober motorists would fail these
"tests" and there is a documented false positive result built
into every "test". Some of the false positive literature admit
that these "tests" are inaccurate 50% of the time!
Officer's observations are subjective – During an arrest for a DWI police officers are looking for "clues"
that the motorist might be intoxicated. The officers have already concluded
that any of these "clues" are due to intoxication and have ruled
out any other explanation. Subjective observations of glassy eyes, slurred
speech, odor of alcohol on the breath and unsteady while standing are
all subjective, used to support a prejudged opinion of intoxication.
For example a client of the firm had natural slurred speech but during
a DWI investigation officers, who never met our client, insisted the slurred
speech was due to intoxication. Based upon evidence presented this was
BAC Testing – Blood Alcohol Content must always be attacked during the DWI defense.
One such defense is that the motorists BAC level was on the rise at the
time of the arrest and when the BAC test was taken there was a higher
result. This is especially effective when a BAC reading is a .10%. If
sufficient time has passed the motorist could have been driving while
their BAC level was a .06% and by the time the test was administrated
the alcohol was absorbed into the system resulting in a higher .10% result
at the police station. Rarely is there more than one BAC reading taken
to establish if the BAC level was rising or falling but that is the prosecutions
problem not the motorists' problem. Also, the BAC breath test reading
has a .01% deviation error. Therefore a .08% result could be a .07% result.
The blood test is usually problematic for the prosecution. Blood contains
sugar and over time if the blood is not properly preserved and kept in
a cool place the blood sugar will turn into alcohol by the time the BAC
test is actually preformed. A client of the firm had a blood BAC reading
of .22 but it was determined that the blood was contaminated, had fermented
and the only test the lab could perform was of the blood serum which naturally
has a higher BAC level. That blood BAC result was suppressed.
BAC Datamaster was not working – The BAC machine at the police department must be properly maintained
including calibration, general maintenance and the operator must be properly
trained. The police and the District Attorney's Office must keep appropriate
records to prove that the machine is in good working order. If some of
their evidence is missing the entire BAC result can be suppressed.
Research – As a DWI defense attorney it is important to know everything about
the motorists' DWI arrest and the prosecutions case. This is accomplished
by conducting a client interview and conducting necessary discovery (document
exchange) with the District Attorney.
Miranda Violations – Police officers will attempt to obtain as many statements as possible
from a motorist as to their level of intoxication. It is always the prosecutions
goal to use as many of these statements during the case and during trial
as admissions of guilt. It is never advisable to speak to police officers
if you have been pulled over for suspicion of DWI. A polite "I want
a lawyer and will not answer your questions" is all a motorist needs
to do. The law surrounding Miranda can be complex but our office always
looks for potential Miranda violations to suppress any incriminating statements.
8.Witnesses – Any witnesses that can testify on a motorists' behalf are
very important. Usually witnesses are friends or co-workers. As opposed
to a police officer who has never met the motorist a friend serving as
a witness can provide helpful information as to the motorists' background
and behavior on the day of the arrest.
Mouth Alcohol created a high BAC – The BAC Datamaster machine is supposed to only register alcohol
from deep within the lungs but high amounts of residual mouth alcohol
could lead to a false result. Police officers are supposed to wait 20
minutes before administrating a breath test. If the motorist burps, vomits,
eats or drinks the officers are supposed to wait another 20 minutes but
this does not always happen and could create a false result.
The Motorist was mentally alert – Just as the police will use a failure of a FST as evidence of
guilt I use evidence that the motorist was mentally alert as proof that
the motorist was not intoxicated. Usually a motorist can properly pull
over, open a window, hand over documents and exit a vehicle without a
problem. All of these details are evidence that the motorist was mentally
alert while driving.
These are only some of the potential defenses to a DWI charge. The best
course of action is to immediately contact a skilled and aggressive DWI
lawyer to help prepare your defense. At Riebling, Proto & Sachs our
attorneys are former prosecutors and skilled criminal defense attorneys.
If you or a loved one has been arrested for DWI contact our office for
a free consultation.