Top Defenses Employed in a Driving Under the Influence Prosecution
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Transcript of Top Defenses Employed in a Driving Under the Influence Prosecution
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8/12/2019 Top Defenses Employed in a Driving Under the Influence Prosecution
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A Omaha DUI Stop
Knowing What to Expect
TOP DEFENSES
EMPLOYED IN A DRIVING
UNDER THE INFLUENCEPROSECUTION
Thomas M. Petersen
Omaha DUI Attorney
Contrary to What the Prosecutor Would Like
You to Believe
There Are A Number of CommonDefenses that Could Prevent You from Being
Convicted of a Nebraska DUI
http://www.duiattorneysomaha.com/meet-tom-nebraska-dui-attorney/http://www.duiattorneysomaha.com/meet-tom-nebraska-dui-attorney/ -
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If you were recently stopped on suspicion of driving under the influence, or
DUI, in Nebraska it was likely an unpleasant experience. If the stop
ultimately led to the officer charging with a DUI offense you are probably
concerned about the impact a DUI conviction will have on your future.
Often, the actual sentence handed down by the court for a DUI conviction
is not nearly as burdensome as the non-judicial consequences of being
convicted of a DUI in Nebraska. Collectively, the judicial and non-judicial
ramifications of a DUI conviction can be far-reaching and long-lasting. The
good news is thatcontrary to what the prosecutor would like you to
believethere are a number of common defenses that could prevent you
from being convicted of a Nebraska DUI.
WHY A CONVICTION MATTERS
If this is your first DUI charge you will likely be charged with a
misdemeanor unless there are extenuating circumstances such as
seriously bodily injury or death from an accident. In Nebraska, you
could be sentenced to a period of incarceration for a first-time DUI
conviction, though probation is also an option. In addition, you will
lose your driving privileges for a minimum of 60 days, incur a fine of
$500 and you will be required to apply for an ignition interlock
device, or IID. For a second or subsequent conviction these judicial
penalties increase significantly. Just a few of the various non-judicial
consequences of a DUI conviction include:
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Increased car insurance premiums for several years
Disciplinary action if you hold a professional license
Substantial out of pocket costs associated with probation fees,
mandatory counseling or treatment costs, using alternative
transportation during your license revocation period, and installing
and monitoring the IID device.
Lost employment opportunities
Negative impact on visitation with minor children
DONT BELIEVE EVERYTHING YOUARE TOLD
THE
PROSECUTOR HASNTALREADY WON
Both the law enforcement officer who arrested you and the prosecuting
attorney would like you to believe that your conviction is a done deal. If
given the opportunity, the prosecuting attorney will likely try and convince
you to take plea agreement early on in the case by suggesting that the
evidence against you is more than sufficient to obtain a conviction. Dont
believe everything you are toldparticularly by the prosecuting attorney.
Remember, it is the prosecutors job to convict you. Make the prosecutor
actually do his or her job instead of making it easy by agreeing to a plea
agreement without even exploring defense options. The truth is that there
are often several defense strategies that could result in the dismissal of the
charges against you or in an acquittal if the case goes to trial.
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COMMON DEFENSES
Although most DUI stops tend to follow the same basic procedures, no two
stops are exactly the same. Only an experienced Nebraska DUI attorney
can evaluate the specific facts and circumstances of your stop and arrest to
determine what defense options you have; however, there are some
commonly utilized defenses, including:
Challenging the stop. The law requires the officer who conducted
the initial stop to have
had a valid legal
reason to stop you.
Officers routinely
testify that a suspect
was exhibiting signs of
intoxicated driving
such as speeding,
weaving, or failing to signal. On cross-examination, however, an
experienced DUI attorney can usually get the officer to admit that
drivers who are not under the influence also exhibit these behaviors.
Therefore, probable cause may not have existed for the stop. If the
officer did not have probable cause to stop you in the first place any
evidence obtained from the stop is inadmissible at trial.
FSTs are far from accurate. During your stop you were likely
required to perform a series of field sobriety tests, or FSTs. If an
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officer correctly administers the tests and properly interprets the
results, FSTs canprovide someindication of intoxication. Most
officers, however, do not administer the tests properly nor do they
properly interpret the
results. In fact, when
questioned about the
proper procedures as
outlined in their own
training manual many
officers are unable to
accurately answer the
questions. Furthermore, the results are subjectively interpreted by
the officer conducting the testthe same officer who has an
incentive to declare that you failed the tests.
Breath tests arent
accurate either.You are
probably under the
impression, as are most
people, that a breathalyzer
provides an accurate
measure of your blood
alcohol content, or BAC,
level. Not necessarily so. Just as with FSTs, there is considerable
room for human error when administering a breath test. In addition,
a breathalyzer must be properly calibrated on a regular basis to
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provide results that are anywhere close to accurate. Even assuming
that the machine has been properly calibrated recently and the test
operator administers the test correctly, there are still a number of
factors that can cause the results to be skewed. In fact, the results of
a breath test can be off as much as 50 percent!
Rising alcohol level defense. When alcohol enters your body it
begins to be absorbed into your blood stream. As that occurs, your
blood alcohol
concentration, or BAC,
rises until it reached the
peak absorption rate. If
you took a breath test
before you actually
reached your peak
absorption rate the
results of the test could have produce a false result, indicating that
your BAC was higher than it actually was when you were operating
your vehicle. This defense often applies if you drank alcohol just prior
to driving.
The chain of custody might have been broken. When physical
evidence is gathered in a criminal case the evidence must be properly
stored and guarded to prevent loss or contamination. In a DUI case
this requires blood or urine samples as well as breathalyzer test
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results to follow the proper chain of custody procedures. If the chain
of custody is broken, the evidence may be inadmissible at trial.
The officer might be your best witness. The average patrol
officer makes hundreds of stops each month and likely arrests
several motorists for DUI. By the time your case makes it to trial the
officer may remember few details about the stop. Typically, they rely
on boilerplate testimony about your appearance and behavior. Your
attorney, on the other hand, has had weeks to review every detail of
your stop including what you were doing prior to the stop, what you
were wearing at the time, and what was said during the stop. The
more incorrect or inconsistent testimony your attorney can elicit from
the officer the less reliable the officers testimony becomes.
Sometimes, the officers testimony actually helps your case!
Very few driving under the influence prosecutions are as open and shut as
the prosecution would like you to believe. Before you subject yourself to
the multitude of penalties that stem from a Nebraska DUI conviction take
the time to consult with an experienced Nebraska DUI attorney to explore
any possible defenses you may have that could prevent a conviction.
NOLO, DUI and DWI Defenses
NHTSA,Standardized Field Sobriety Testing
NHTSA,The ABCs of BAC
BACtrack,Are Breathalyzers Accurate?
https://www.nolo.com/legal-encyclopedia/dui-dwi-defenses-32254.htmlhttps://www.nolo.com/legal-encyclopedia/dui-dwi-defenses-32254.htmlhttp://www.nhtsa.gov/people/injury/alcohol/sfst/appendix_a.htmhttp://www.nhtsa.gov/people/injury/alcohol/sfst/appendix_a.htmhttp://www.nhtsa.gov/people/injury/alcohol/sfst/appendix_a.htmhttp://www.nhtsa.gov/links/sid/ABCsBACWeb/page2.htmhttp://www.nhtsa.gov/links/sid/ABCsBACWeb/page2.htmhttp://www.nhtsa.gov/links/sid/ABCsBACWeb/page2.htmhttp://www.bactrack.com/pages/are-breathalyzers-accuratehttp://www.bactrack.com/pages/are-breathalyzers-accuratehttp://www.bactrack.com/pages/are-breathalyzers-accuratehttp://www.bactrack.com/pages/are-breathalyzers-accuratehttp://www.nhtsa.gov/links/sid/ABCsBACWeb/page2.htmhttp://www.nhtsa.gov/people/injury/alcohol/sfst/appendix_a.htmhttps://www.nolo.com/legal-encyclopedia/dui-dwi-defenses-32254.html -
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About the Author
Thomas M. Petersen
Omaha DUI Attorney
For almost two decades Omaha attorney Thomas M.
Petersen of Petersen Law Offices has been defending
individuals charged with driving under the influence, or
DUI. As a result of his dedication to defending his clients,
Attorney Petersen was recently selected as one of the top
50 DUI attorneys in Omaha. If you have been charged
with an Omaha, Cass County, or Sarpy County, Omaha,
contact the Omaha DUI team today by calling 402-513-2180 or by filling out our online
contact form for a free evaluation of your case.
12020 Shamrock Plaza Suite #105Omaha, Omaha 68154
Phone: (402) 513-2180 (CALL 24/7)
Website:www.duiattorneysomaha.com
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