Top Five DUI Defenses

Drinking and driving is deeply embedded in our society. About half of Georgians admit they have driven under the influence of alcohol. The actual percentage is probably much higher. Many people drink and drive and don’t admit it.

Furthermore, peace officers aggressively enforce DUI laws. These offenses feed the beast. They keep many police officers, jailers, court personnel, and probation officers busy.  So, prosecutors eagerly press the most serious charges possible.

Aggressive peace officers and prosecutors often play into the hands of a Marietta criminal defense lawyer. Anxious police officers often make procedural mistakes, and eager prosecutors sometimes overlook serious evidence deficiencies. As a result, a Marietta criminal defense lawyer usually has an excellent chance to successfully resolve DUI charges.

Illegal Detention

Unless the stop motorists at approved DUI roadblocks, officers must have reasonable suspicion before they detain motorists. That reasonable suspicion (evidence-based hunch) is usually a traffic violation or an informer’s tip.

At a roving stop, the traffic violation is the evidence and the circumstances of the stop, such as the time of night or a furtive movement, like nervously glancing into the rearview mirror, is the hunch. Significantly, the evidence must come before the hunch. Police officers cannot work backwards. They cannot target people who “don’t look right” and then wait for them to violate a traffic law.

Courts evaluate informant tips according to their reliability, not their accuracy. Most judges examine the following factors:

• Source: Anonymous tips are almost per se unreliable. If tipsters don’t vouch for the information they provide, judges won’t give it much credibility either. Officer-provided tips are on the other end of the spectrum. Everything else, like verified private citizen tips, are somewhere in the middle.
• Specificity: Passing motorists usually only get fleeting glimpses at would-be drunk drivers. So, these tips hardly ever include a complete vehicle description and licensed plate number. A partial description, such as a partial plate number and a semi-specific physical description (late-model silver Kia) usually suffices.
• Motivation: This last factor might be the most important one. Motorists who report reckless drivers are usually motivated by public safety concerns, at least for the most part. Bar patrons who report motorists as they pull out of the parking lot probably just want to get the defendant into trouble.

Reasonable suspicion is a very low evidentiary standard. So, unless the stop involves a serious irregularity, the judge will most likely uphold it.

Not Driving the Vehicle

Georgia law defines “driving” so broadly that this defense is almost impossible to win as well. However, there are exceptions.

In Georgia, a person can literally be passed out behind the wheel and still be guilty of DUI, if that person is legally intoxicated. Some people may remember the Rayshard Brooks shooting in 2020. An officer stopped him because he was passed out behind the wheel in a Wendy’s drive-through lane. Since he had control of the car and it was drivable, he was “driving” the car under Georgia law.

Nevertheless, the state has the burden of proof on each element of the offense. So, in such cases, the state must prove the car had gas in the tank and was in operating condition. Prosecutors might or might not have sufficient evidence on that point at trial.

No Probable Cause

When officers say, “Step out of the car,” the tone changes. That was certainly true in the Rayshard Brooks case. Most defendants realize they’re in serious trouble, and most officers have their handcuffs at the ready.

When officers administer the three approved field sobriety tests, they always assert that the defendant “failed” the tests. That assessment might not hold up in court, mostly because the FSTs have some serious scientific and technical issues.

• Horizontal Gaze Nystagmus: Officers typically lead with this FST because it has the highest compliance rate. The “follow my finger” DUI eye test has some medical test elements. At a doctor’s office, this test accurately diagnoses nystagmus, a condition similar to lazy eye. But roadside HGN tests, which are conducted in uncontrolled environments, are much less accurate.
• Walk-and-Turn: The “walking a straight line” test may be the signature DUI field test. Since defendants know that a DUI arrest is just around the corner, the compliance rate usually falls. Most defendants fall, or nearly fall, during this test as well. Unless they’re wearing athletic shoes, most people cannot walk heel to toe whether they’re drunk or sober.
• One-Leg Stand: By this time, most defendants are mentally and physically fatigued. So, technicalities often cause them to “fail” this test. These technicalities include elevating the wrong leg, swaying ever so slightly (even if it’s windy outside), and starting or stopping the test at the wrong time.

Defendants have a Fifth Amendment right to refuse to perform these tests. Under current law, they must clearly assert this right. Simple non-cooperation isn’t enough to invoke this right.

Illegal Chemical Test

Defendants also have a Fifth Amendment right to refuse to provide a breath or blood sample. However, Georgia is an implied consent state. Drivers who retract that consent later could face additional penalties.

Scientific issues plague Breathalyzer test results. Mouth alcohol is a good example. When people burp or vomit, alcohol particles in the stomach rush into the mouth and skew the breath test results. Mosty officers don’t strictly observe a pre-test monitoring period, so this flaw comes up a lot.

Legal issues plague blood test results. Officers must obtain valid search warrants before they extract blood samples. These warrants must be based on probable cause affidavits. Because of the aforementioned FST issues, probable cause could be lacking.

Wrong County

This final defense usually isn’t a legal defense. But it could help a Marietta criminal defense lawyer successfully resolve DUI charges.

Many communities straddle county lines. If prosecutors file charges in the wrong county, they must start over in the correct county. Frequently, to avoid all that extra work, they make favorable deals with defense lawyers.

If prosecutors don’t spot the error until the time of trial, the Fifth Amendment’s double jeopardy clause could apply. If that’s true, the judge must dismiss the case based on lack of jurisdiction, prosecutors cannot refile it, and the defendant walks free.

DUI arrests don’t always become DUI convictions. For a free consultation with an experienced Marietta criminal defense attorney, contact The Phillips Law Firm, LLC. Convenient payment plans are available.