Thursday, March 7, 2013

Defenses for DWI: Defending against an over-the-limit BAC

Most people who are arrested for a DWI think they will automatically be found guilty if their blood/breath results are greater than .08. While this may be possible, there are also some defenses available that could preclude a conviction.

Many times, breathalyzer tests are not administered during a traffic stop. Instead, an officer may take an individual into the police station on suspicion of drunk driving. As such, a defendant could wait more than an hour to take a breathalyzer test.  I routinely have to tell my clients that they are charged with driving while intoxicated not intoxicated while at the police station.

It's a little-known fact that a person's blood alcohol level increases for some time after having their last drink. This could effectively mean that a driver's BAC was below the legal limit when he or she was pulled over, yet rose to above the legal limit after being stopped. When the level registered on a breathalyzer test is at or just slightly above the legal limit, reasonable doubt can come into play if there was a delay in administering the test.

Other times, a breathalyzer machine may give inaccurate results because it is in poor working condition. This equipment needs to be calibrated at least once per year in order for it to produce accurate results. If it is past its service date, this could call the accuracy of any test results into question in a court of law.

Some defenses involve challenging an officer's judgment in stopping a driver in the first place. If law enforcement cannot show probable cause as to why the operator was believed to be intoxicated, the traffic stop could be deemed illegal, which would make the subsequent arrest unauthorized as well.

A DWI defense is never easy; however, those who have been arrested for one of these crimes should know that there are defenses available. The best course of action to take after an arrest should be to contact an experienced DWI attorney.