15 Ways To Challenge a DWI

There are a number of ways to defend against a Columbia, Missouri DWI charge. Here is a list of some of the best DWI Defense tactics compiled by Columbia, Missouri DWI lawyer Michael Selby of fifteen ways to challenge the validity of a Columbia, Missouri DWI arrest. Not all of these will apply to every case, and there are other defenses to Columbia, Missouri drunk driving charges that may apply in some cases. This is simply an idea of what we can do in defending your Columbia, Missouri DWI charge. The inspiration for this page came from my good friend, and great drunk driving trial attorney Donald Ramsell in Illinois. These defenses are not necessarily listed in any particular order.

1) FIELD SOBRIETY TEST ADMINISTERED BY THE OFFICER ARE NOT RELIABLE EVIDENCE OF INTOXICATION

A healthy, sober individual who takes the one-leg stand test will only pass the test 65% of the time, and walk-and-turn test only 68% of the time. Persons with injuries, medical conditions, are 50 pounds or greater overweight, and 65 years or older cannot be validly judged by any of the standardized field sobriety tests. And, there are no studies that validate the reliability of the alphabet, counting, finger to nose, or other field sobriety tests. The Columbia, Missouri DWI 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.

2) ILLEGAL STOP

A Columbia, Missouri DWI Enforcement officer cannot stop a car without having a reasonable and articulate basis to believe that a law has been violated or he can articulate unusual operation of the motor vehicle. Therefore, if the Columbia, Missouri DWI enforcement officer stops the car just because he saw the driver walk out of a bar and get into the car, or he received an anonymous tip about the driver the Columbia, Missouri DWI charge may be dismissed based on violation of the driver's rights.

3) BLOOD TEST INACCURATE

The admissibility of blood testing in a Columbia, Missouri DWI case depends on the procedures used in the taking of the sample. Oftentimes, medical centers that take these samples fail to follow proper protocol. Even if they say the prep swab is non-alcoholic, there is usually some trace of alcohol in the swab, which subjects these samples to a Motion to Exclude. Hospital tests have been shown to overestimate a blood sample by as much as 25% in healthy, uninjured individuals, and are not statistically reliable in severely injured persons. When hospital staff use lactate ringers during the treatment of a patient, the hospital blood serum results will report falsely elevated readings.

4) VIDEOS OR DISPATCH TAPES

All Missouri State Troopers, and many other Missouri DWI enforcement officers have video cameras in their patrol vehicles. These videos, along with videos from testing rooms, booking rooms, and other sources can be the best defense to some Columbia, Missouri DWI charges. These videos can show that the field sobriety tests administered to are not as bad as the Columbia, Missouri DWI enforcement officer interpreted them. We have seen tapes that showed the drivers speech was not muttered, slurred, or incoherent, their balance was not swaying or stumbling, and their attitude was not combative or uncooperative. These are areas where a qualified Columbia, Missouri DWI attorney can show that the officer has a bias towards the driver and is not accurately testifying about the drivers clues of intoxication. Most vehicle stops are audibly recorded on dispatch tapes. If a proper motion to preserve has been filed, a failure to preserve such tapes upon request can cause all evidence which could have been recorded to be suppressed.

5) BREATH TESTING IS INACCURATE

One breath test does not tell anyone whether a driver is guilty of violating Missouri DWI law. The alcohol level in a persons blood stream changes rapidly over relatively short periods of time. Therefore, a person who consumes an alcoholic drink and then, as soon as the breath alcohol dissipates, immediately takes a breath test will have a lower blood alcohol content (BAC) than someone who consumes the same beer and takes the test a half hour or full hour later. Missouri DWI Law requires that the person who is charged with a Columbia, Missouri DWI be intoxicated at the time of vehicle operation. But, breath testing is not administered at the scene. It's administered at the station, after time has passed. Therefore, if a driver's breath test is close to the .08 legal limit, the driver may have a defense to a Columbia, Missouri DWI charge that the breath test is inaccurate.

6) THE OFFICER'S PRIOR RECORD AND STATEMENTS

In a proper case, a police officer's previous disciplinary record can be used to challenge the officer's credibility; especially if the officer has been disciplined for lying, misrepresentation, or violating the rights of a driver. Furthermore, if the officer has testified previously in a Columbia, Missouri DWI case about the reliability of tests, or how to administer them, that prior testimony can be used to challenge the Officer's skills at administering field sobriety tests if he answers differently from trial to trial. Also, if the Columbia, Missouri DWI enforcement officer misled the driver about the consequences of refusing to submit to tests under Missouri DWI law then the results can be thrown out at the administrative hearing and at the criminal trial.

7) FAILURE TO CONDUCT OBSERVATION PERIOD

Missouri DWI law requires that a driver be observed continuously for a set time period prior to a breath test in order for the results to be considered admissible. Some Missouri DWI Enforcement officers may try to manipulate this time period by doing other things during the time period, and leaving the driver alone, instead of properly monitoring his actions. If the Columbia, Missouri DWI enforcement officer in the Columbia, Missouri DWI case did not actually observe the driver during the required time period the test results may be thrown out of court.

8) BREATH TEST OPERATOR UNLICENSED

A person who operates the Missouri DWI breath testing machine must possess a valid operator's license. There are cases where the operator's license had expired because and the case has been dismissed or won at trial.

9) INDEPENDENT WITNESSES

Columbia, Missouri DWI enforcement officers do not interview independent witnesses in a Columbia, Missouri DWI case. A proper investigation can identify these witnesses and they can be found to testify about the defendant's signs of intoxication. These witness, oftentimes, do not have the same recollection that the officer does. These witnesses include people such as bartenders, hospital personnel, wait staff, other customers at eating or drinking establishments, and others.

10) MEDICAL AND HEALTH PROBLEMS

Medical problems with nearly any part of the body can affect the results of Columbia, Missouri DWI field sobriety tests and maybe breath tests. If these conditions do interfere with the tests then the validity of the tests are subject to challenge, and may be a reason for dismissal or victory at trial.

11) FAILURE TO MIRANDIZE OR READ THE IMPLIED CONSENT WARNING

Columbia, Missouri DWI prosecutors may not use the statements of a defendant in custody for violation of Missouri DWI law when the police have failed to properly warn the driver in accordance with the Miranda Warnings. Furthermore, the Missouri DWI enforcement officer must read the driver Missouri's Implied Consent law before the driver submits to the breath test.

12) BAD WEATHER

In order to explain poor driving or poor balance, weather reports establishing high winds, low visibility, and other conditions, may be used in any Columbia, Missouri DWI case.

13) FAILURE TO RECORD CERTIFICATION TESTS

The value of the simulator solution used to test Missouri DWI breath machines must be recorded or will result in the breath test results to be inadmissible in court against the driver.

14) INTERFERING SUBSTANCES

False Columbia, Missouri DWI breath tests may be caused by many items, such as asthma spray, cough drops, paints, or fingernail polish, which contain forms of alcohol.

15) FAILURE TO PROVIDE A SPEEDY TRIAL

The State must provide a trial within specified time periods. If they don't, the case must be dismissed.
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List of DWI/DUI Attorneys in various states

You can find the list of DWI/DUI lawyers through the following table: (Click on the state)

Alabama Alaska Arizona Arkansas California Colorado Connecticut DC Delaware Florida Georgia Hawaii Idaho

Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi Missouri

Montana Nebraska Nevada New Hampshire New Jersey New Mexico New York North Carolina North Dakota Ohio Oklahoma Oregon Pennsylvania

Puerto Rico Rhode Island South Carolina South Dakota Tennessee Texas Utah Vermont Virginia Washington West Virginia Wisconsin Wyoming

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53 Things YOU Need to Know about Your DWI Case that NO ONE is Telling YOU

5 things the District Attorney does not want you to know :

1. He does not have all the witnesses available to prove his case.
2. He has exculpatory evidence which would prove your innocence.
3. You have a right to a jury trial within six months of pleading not guilty.
4. He has evidentiary problems in proving your blood alcohol level.
5. He's bluffing.
   

7 of the facts that must be proved before you can be found guilty:

1. Your identity
2. As a driver
3. Of a motor vehicle
4. In the state of Michigan, while
5. Your blood alcohol level was over one of the prescribed limit or
6. You were substantially incapable of driving (driving under the influence) or
7. You were affected to slightest degree in your driving ability (driving while ability impaired).

What you must do immediately to preserve your right to drive:

10 questions your attorney must ask you.

1. What your itinerary was prior to arrest.
2. Your consumption of alcoholic beverages.
3. Your observations of the officer.
4. The officer's stated reasons for stopping you.
5. Whether the officer asked or ordered you to take roadside tests.
6. Your performance on roadside tests.
7. Statements you made to the officer.
8. What the results were of any breath or blood tests.
9. Whether there were witnesses to your arrest.
10. Whether you were observed prior to a breath test,

What are the 4 items crucial to your defense?

1. A good investigation of the facts.
2. Vigorous cross-examination.
3. A sound understanding of constitutional principles.
4. An experienced attorney.

What is the one thing your attorney must do to raise objections based on the Summons and Complaint?

• Appear in person for your arraignment.

Why a jury trial is advisable:

• Six people have to agree on your guilt instead of one.

What is necessary to get a jury trial?

• You automatically have a right to a jury trial.

How the arresting officer's testimony can be impeached:

1. Inconsistent statements.
2. Failure to recollect.

5 requirements which must be followed for chemical and roadside tests to be valid:

1. The officer must have had a reasonable suspicion that you were violating the law.
2. The officer must have either had probable cause to arrest you or obtain your consent for roadside tests.
3. The officer must tell you that you have a right to refuse a portable breathalizer test.
4. The officer must have probable cause before he arrests you and before he requires you to take a chemical test.
5. The officer must give you your Miranda rights after you are arrested, if he is going to interrogate you.

What are the 2 key pieces of information which must be learned in deciding to go to trial?

1. An estimation of the weaknesses and strengths of the State's case against you.
2. The effect of a conviction.

How to determine if you can plea bargain, and at what step you should do it.

• It's a cost benefit analysis. How much do you have to defend your case?

What effect will this arrest have on my license and when will I be able to drive?

• If your blood alcohol was over the legal limit or you refused a test, you may not be able to drive at all for a long period of time.

How to save your license if you're found guilty in court?

• Request a probationary license if you are suspended for excessive points.

What 4 preliminary motions should be filed, and the danger to you if they aren't.

1. Motion to suppress evidence on the ground that you were unconstitutionally stopped.
2. Motion to suppress evidence on the grounds that there was an unconstitutional search and seizure.
3. Motion to suppress statements on failure to give Miranda rights.
4. Motion for Discovery of all evidence.

If these motions are not filed, your case may not be dismissed when it should have been. You may not be told about evidence which would prove your innocence.

7 defense tactics in pre-trial motions:

1. Contest the constitutionality of the stop.
2. Contest the constitutionality of the administration of roadside tests.
3. Contest the constitutionality of the probable cause to arrest.
4. Contest the constitutionality of the Miranda rights.
5. Contest the manner in which roadside tests were given
6. Contest the use of a Portable Breath Tester.
7. Contest the constitutionality of any search and seizure.

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THE "RUNAWAY": PARKING CRIME

The rookie [policeman] is faced with the situation where it is easier for him to become corrupt than to remain honest. --Knapp Commission Report

What happens to a kid who has a difficult and abusive home life, and then gets arrested by police?

Three years ago, Andrea was a 16 year old who was having trouble at home with her alcoholic father. She would often spend the night at her next-door neighbor's house, when her father became too abusive after drinking.

Andrea was a passenger in a car, when the driver was detained by police for the alleged traffic violation of "parking on private property after dark." There is no curfew in effect, so they had not committed any crime, and the young people had violated no traffic regulations. She told the officer she had not been drinking. There were no containers of alcohol in the vehicle.

The police asked if she would voluntarily agree to take the field sobriety test, which she did three times, and performed without difficulty. Andrea was arrested for underage consumption of alcohol.

At the jail, she was asked to voluntarily take the breath-alcohol test (under threat of losing her license), which she passed at 0.00% BAC. She became irritated with the officer, who then handcuffed her to a steel post for three hours. She was eventually released to her parents.

Because of the arrest, and the fact that her drunken father had in the past called police and declared her a runaway for spending the night at her next-door neighbor's house, Andrea was soon placed in a foster home. The children in the foster home (both boys and girls) were raped at night by the foster parents. She stayed there six months.

Andrea's attorney fees, fines and court costs totaled $3,000. The charges were dropped after attending a DWI school.

She and her mother do not feel they were treated fairly, and neither trusts the legal system. Her father has been sober for six months, but does not attend any Alcoholics Anonymous support group or get any type of medical or psychological treatment for preventing his alcoholism from recurring in the future.

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THE STUDENT: KID PROFILING

I'm not 'against' the police; I'm just afraid of them. --Alfred Hitchcock

What does a 16 year old passenger in a car have to worry about, when she does not drink alcohol?

Jennifer was riding around with friends when a local police officer decided to pull them over for the alleged traffic offense of "having too many passengers in the car." There were five people in the car, which had five seat belts. The young people had thus broken no traffic regulations.

The driver, who was 20 years old, admitted to previously having had two drinks over a several hour period. There were no alcohol containers in the car.

The officer asked Jennifer what she was drinking. She told him it was cherry soda. The cop took the soda from her and tasted it. He smiled at her.

The passengers were ordered out of the car. Jennifer refused to get out. A police officer grabbed her and pulled her out.

The driver was arrested for underage consumption (under 21), as were all the passengers. Jennifer volunteered to take a field sobriety test and breath-alcohol test, but was refused.

After being taken to jail, the teenagers were immediately allowed to go home.

Jennifer's parents hired an attorney, who plea bargained the case. Police had lied in their reports, saying she had admitted drinking alcohol, and that she was obviously under the influence. After attending a DWI school, her record was cleared. The total cost was $1,000, for fines and attorney fees, which Jennifer had to repay from her part time job. It is general knowledge among fellow judges, lawyers and court victims that "Crazy Judge Weiner" was an alcoholic who drank liquor in his courtroom while judging his fellow citizens, and who was allegedly arrested for DWI on numerous occasions. The Federal Bureau of Investigation in Knoxville, Tennessee, declined an investigation, alleging, "It's up to the voters to get rid of him. We don't do that kind of investigation." This is despite recent news headlines of Tennessee judges arrested for rape, dealing crack cocaine and stealing general sessions court funds.

Jennifer is now afraid to have a social life. Since this event, neither she nor her parents trust police officers or the legal system. Jennifer sees the local officer on a regular basis around town. Everytime he sees her he laughs at her.

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