During coronavirus lockdowns, the number of fatal alcohol-involved crashes spiked to near-record highs. Now, some five years after these lockdowns ended, many law enforcement agencies are still in “take back the streets” mode.
Mandatory arrest policies exemplify this attitude. If an officer pulls over a motorist on suspicion of DUI, many departments basically require these officers to arrest these suspects, regardless of the amount of evidence officers gather during DUI investigations.
Many counties have long-standing mandatory prosecution policies. Prosecutors cannot conditionally dismiss DUIs, no matter how weak the evidence is. So, a Marietta criminal defense lawyer must aggressively challenge the state’s proof. The approach varies, mostly depending on the type of DUI case.
Complete Refusal to take a DUI Test
After an officer contacts a driver, the officer immediately begins looking for evidence of alcohol intoxication. Such evidence includes:
- Defendant’s statements,
- Odor of alcohol,
- Bloodshot eyes,
- Slurred Speech, and
- Unsteady balance.
Individually, these items essentially prove nothing. For example, an order of alcohol only establishes that someone in the car was drinking at some point in the recent past. But collectively, these items are compelling. Additionally, at this stage, officers must only have reasonable suspicion of intoxication. “Reasonable suspicion” is basically an evidence-based hunch.
During the stop, suspects must answer name, rank, and serial number-type questions. They must also produce certain documents, such as a drivers’ license, and comply with basic “step out of the car” commands. They need not do anything else or say anything else.
If Officer Jones tells Alex to step out of the car, Alex must step out of the car. But if Officer Jones tells Alex to walk a straight line or perform other physical tests (more on that below). Alex has a Fifth Amendment right to refuse to perform those tests. He also has a Fifth Amendment right to refuse to provide a chemical sample.
When suspects completely refuse to cooperate, officers almost certainly arrest them. But that outcome was probably inevitable once flashing lights appeared in the rear-view mirror.
More importantly, at trial, prosecutors must use weak reasonable suspicion evidence to establish guilt beyond a reasonable doubt. That’s a much higher standard.
So, the conviction rate in complete refusal cases is only about 33 percent, in most jurisdictions.
Partial Refusal
In about one in five cases, drivers do everything police officers ask them to do, except provide chemical samples. That includes performing the three government-approved field sobriety tests. The FSTs are much stronger evidence of intoxication. So, the conviction rate moves up to about 50 percent in partial refusal cases.
The conviction rate isn’t higher in partial refusal cases because the FSTs are deeply flawed, as follows:
- Horizontal Gaze Nystagmus: Test subjects must follow moving objects, like fingertips, with their eyes without moving their heads. If their pupils involuntarily move at certain angles, the subject probably has nystagmus. But alcohol is one of many HGN causes. That long list includes certain medications, childhood brain injury, and genetic factors.
- One-Leg Stand: In this test, the subject must balance on one leg for a certain number of seconds. It is almost impossible for people with any mobility impairment to complete this test, whether they are drunk or sober. Furthermore, at this point, many defendants are physically and mentally fatigued. Fatigue and alcohol have identical effects on the brain and body.
- Heel-to-Toe Walk: Test conditions often affect the walking-a-straight-line test. It’s much harder to walk heel to toe over an invisible line than a visible one, like a parking lot stripe. This test is also very hard to perform in the field, because the sky is dark and the surface is usually uneven. Additionally, flashing squad car lights distract defendants as they listen to instructions and perform tests.
Officers may also order the defendant to perform unapproved tests, like the Romberg balance test. At best, these results are usually only admissible for limited purposes.
DUI Chemical Test
If the defendant takes a breath test, the conviction rate shoots up to about 85 percent. Unfortunately, most Cobb County DUIs are breath test cases. However, all is not lost, as there are still some defenses in this area.
Testifying officers tell jurors that breathalyzers are science fiction-level products that use fuel cells to measure electrochemical reactions. But strip away the bells and whistles, and a breathalyzer is basically the same gadget as a 1950s Drunk-o-Meter. If the doctor wants to X-ray your body, would you like the doctor to use an I Love Lucy-era contraption? Probably not.
Once jurors understand this overall flaw, they are more likely to embrace some specific flaws. Some common ones include:
- Mouth Alcohol: If the defendant burped or belched in the half-hour prior to the test, alcohol particles flooded the person’s mouth. Therefore, the breath alcohol level, and the BAC estimate, will be artificially high.
- Unabsorbed Alcohol: The same thing applies if the defendant had been drinking in the two hours or so prior to the test. Alcohol slowly absorbs from the stomach through the liver and then into the bloodstream. The unabsorbed alcohol makes the person’s BAC lower than the breathalyzer’s estimate.
Flaws like these are especially effective in .08, .09 and other borderline BAC cases. Frequently, a Marietta criminal defense lawyer partners with a degreed chemist or other professional to drive home these points with jurors.
Blood Test
Blood test cases are very difficult to win. The conviction rate is about 95 percent. However, blood tests require search warrants.
So, blood test cases are almost unheard of, except in serious injury collision DUI cases or “no refusal” weekends. Hospitals always take blood tests. “No refusal” usually means that if the defendant doesn’t consent to a breathalyzer test, officers proceed to the next step.
Blood test DUI cases may involve both procedural and substantive defenses. Procedurally, these cases have lots of moving parts. The sample must go to several different places. A gap in the chain of custody diminishes the credibility of the evidence. Additionally, a criminal defense attorney may request a blood re-test. Many times, these results are much different from the ones the police technician obtained at a police laboratory.
DUI enforcement and prosecution is more aggressive than ever. For a free consultation with an experienced Marietta criminal defense lawyer, contact The Phillips Law Firm, LLC. The sooner you reach out to us, the sooner we start working for you.
