Examples of Washington State DUI Defenses
Disputing the arresting officer’s report:
It is very common for the prosecution to rely heavily on the written DUI report filed by the officer or Washington State Patrol Trooper. Likely the report will contain observations regarding the way you were driving. These observations may include, weaving, crossing lines, slow speed, disobeying traffic signal and so on. Your Washington DUI attorney can investigate possible explanations for the driving. For example, maybe the driver was suffering from fatigue; possibly there was a problem with the car. There are several other reasons for poor driving other than intoxication.
Also within the report the officer almost always will mention that the driver had slurred speech, red and watery/bloodshot eyes, amongst other things. The Washington DUI defense lawyer can argue that many other things can cause slurred speech and red eyes, such as again fatigue and/or allergies. There are numerous counter arguments to be made that have nothing to do with impairment.
Field Sobriety Tests do not judge impairment
The standardized field sobriety tests (SFSTs) consist of three tests; the Horizontal Gaze Nystagmus test (HGN), the walk and turn tests (WAT) and the One leg Stand test (OLS). These tests were designed to be predictors of person with .10 blood alcohol level or higher. They are not very good predictors at all. Furthermore they are only predictors if they are administered in the standardized matter prescribed by the National Highway Traffic Safety Administration (NHTSA). Your Washington DUI attorney should be trained in the same manner officers are in administering these tests. Many quality attorneys have gone on to be trained as instructors in these tests and are very versed in the manner they are to be administered and the science or lack of science behind them. Furthermore, the officer must warn you that these test are “voluntary.”
The officer must have probable cause and witness a traffic infraction or misdemeanor. As long as the driving is legal the stop should not be justified. It Washington there is several cases that have stated what is and what isn’t a legal stop. For example: crossing over a line once for a couple of second does not justify a stop, exiting a driveway does not require a signal, brief time without headlights on when no one else is on the road did not justify a stop.These are some examples of case specific reasons for stops that were found unjustified.
The BAC machine
Now, in every state in this Country including Washington a motorist is considered to be DUI when their blood alcohol content is .08 or more. If the driver is suspected of driving under the influence the officer will read the implied consent forms to the suspect and ask them if they will take a test. There are many defenses to the BAC Machine test; (1) Possible that the officer did not follow specific protocol or procedures, (2) The officer may not have been certified to operate the tests, or his/her certification was expired, (3)The machine may have malfunction. These are a few examples of certain information your attorney would look for in the discovery process.
What is a suspect blows over the limit at the station; does that mean the suspect was over the limit while driving? Not necessarily. Alcohol takes an average of 50 minutes, but could take as long as three hours to fully absorb into the blood stream. This is more prevalent when a Washington DUI stop occurred fairly close to the time the suspect stopped drinking. So, your BAC was still rising. That means that even if your BAC was above .08 at the station where you took the Breath test it is very possible that while you were driving the BAC was under .08. The good news is that the BAC level while driving is what is important. The prosecutors must prove beyond a reasonable doubt that you were driving with a BAC of .08 or higher.
Other reasons not to trust the Washington Breath testing machine
- Breath pattern: it has been argued that holding your breath or taking really deep breaths before and blowing can cause an extreme increase in your BAC reading. Also, lung size and capacity may make a difference.
- Hematocrit issue involving blood tests: Hematocrit is the ratio of red blood cells to the total volume of blood. The average values in men are 42 to 53 per cent and 37 70 47 percent in women. If the person has a lower Hematocrit they will have an incorrectly high BAC.
- Breath tests are not just looking for alcohol: Breath testing machines are supposed to look for ethyl alcohol, which we know as ethanol found in alcoholic beverages. Some machines will fine substances with similar chemical make ups and report them as if they were ethanol. Acetone can be falsely picked up as ethanol. This may be seen with people on low carb diets and/or diagnosed with diabetes.
- Law carb or protein diets can cause the body to go into ketosis, where ketones are generated which creates isopropyl alcohol. Isopropyl like ethanol will be picked up by the breath machine causing a possible false positive result.
- Calibration of the breath machine might be off
- Alcohol could be trapped in mouth or in dental fillings. Alcohol can also enter the mouth through tears, which could lead a higher BAC result.
- Fundamental assumptions inapplicable; the machine is based on averages that may not apply to certain individual cause there tests in be inflated.
- Breath testing during the absorption phase may significantly overestimate the true BAC level. Alcohol can continue to be absorbed anywhere from 20 minutes to 2.5 hours depending on things such as how much food is in your stomach.
- Burping within in 15-minutes prior to the breath test. Mouth wash or breath spray may fool the machine
- Radio interference (RFI)