If you are pulled over by the police after you were drinking, don’t panic. If asked how much you have had to drink, you are not obligated to answer, and should ask to speak to your attorney before answering any questions.
When the police suspect someone of driving under the influence, they will likely try to conduct field sobriety tests. These are tests administered immediately, on the road, that examine a suspect’s balance, coordination, and cognitive abilities.
Such tests can include, but are not limited to, asking the person to balance on one leg for a given period of time, walking a certain number of steps in a straight line before turning around and coming back, or tracking a pen or flashlight the officer moves back and forth in front of someone’s eyes. Officers will observe someone’s ability to follow directions, respond, walk steadily, and follow motion with their eyes without jerky eye movements, which could indicate the influence of drugs or alcohol.
DRUNK DRIVING & THE LAW
All states have laws in place which prohibit driving or operating machinery under the influence of drugs and alcohol. In most states including Kansas, the definitive definition of driving under the influence is a blood alcohol content, or BAC, of .08% or more, regardless of actual impairment. This is formally referred to as a “per se” DUI charge.
If field tests verify the officers suspicions, or if they feel more information is necessary, they can request scientific tests of the suspects sobriety level. Such tests include use of a “breathalyzer”, a device you breathe into which measures alcohol content in exhaled air, as well as collecting blood or urine samples to test for drugs and alcohol.
KNOW YOUR RIGHTS: SEARCH & SEIZURE, IMPLIED CONSENT
The fourth Amendment protects against “unreasonable” search and seizure, which is generally defined as search and seizure conducted without a warrant. The Supreme Court has ruled that drawing blood to test BAC typically requires a warrant, consent of the driver, or certain other limited circumstances. You have the constitutional right to refuse such testing, and being required to give samples without a warrant, if proven, would render any evidence resulting from such tests dismissable in a court case.
However, due to the existence of “implied consent” laws, anyone arrested under suspicion of driving under the influence of drugs or alcohol, who refuses to give a blood, breath, or urine sample, can have their driver’s license suspended for one to twelve months, even if the suspect is eventually found not guilty in criminal court. While refusal to take a chemical test may result in harsher license penalties, this gives the government less evidence to use against you in the criminal case.
HOW OUR LAWYERS USE FORENSIC SCIENCE TO BEAT A DUI CHARGE
Despite being the definitive means of DUI convictions, scientific testing for alcohol and drugs is not infallible, and we can help you challenge any charges brought against you.
Breathalyzers, for example, are a common and quick test of BAC, which involves breathing into a device which gives the officer an estimate of how much alcohol you have in your system. However, these devices must be calibrated regularly using air with a known and specific amount of alcohol content. Records of these calibrations are kept by the police department, and if not done correctly or often enough, can be used to argue a faulty reading in court.
Breath tests are also unable to measure BAC directly, so they rely on a measurement of alcohol exhaled multiplied by a set number called a “partition coefficient” or “partition ratio” to estimate BAC. The number used is standard for all tests, but actually varies from person to person depending on body temperature and respiratory rate.
As a result, breath tests can be arguably unreliable if such factors were not measured. Additionally, the alcohol content in someone’s breath can change significantly due to recent use of mouthwash, toothache medications, acid reflux, or even a quick burp. For this reason, police are supposed to observe a suspect for 20 minutes before administering the test. If they do not, the test results can be argued.
PROBLEMS WITH DUI TEST LAB RESULTS
Blood tests are the most accurate form of BAC testing, but rely on laboratory consistency and timing. Obtaining a blood sample counts as a medical procedure, which must be done by a qualified medical professional. So, police must transport someone to a lab to get tested, and then have them wait for several weeks or even months to get results.
Bodies continually digest alcohol, and the levels present in someone’s blood change constantly as a result. Someone’s blood alcohol while they were driving may have been below the limit, especially if they drank shortly before getting behind the wheel. By the time blood is drawn they would be significantly more inebriated, and falsely accused of driving under the influence. Such circumstances can be used in court, and are referred to as the “blood-raising-alcohol” defense.
Urine samples are far less accurate than blood or breath tests, and are used less often. However, both blood and urine tests can be inaccurate due to lab errors. Blood and urine not stored correctly or tested soon enough can ferment or decompose, which yields a falsely high BAC result. Samples can also be mixed up or mis-recorded in labs that test hundreds of samples a day, or even mishandled or switched while being transported to a qualified lab.
WE WANT TO HEAR FROM YOU
Ultimately, if you or someone you know has been charged with a DUI, know that conviction is not the only possible result. Addair Thurston, CHTD, can help you determine if and how the circumstances of your case involve viable defenses to fight criminal charges, while providing the highest quality legal services and personalized representation.