Posts Tagged ‘Virginia DUI lawyer’

DUI Detection Phases Explained By A DUI Attorney

October 15th, 2010

Everyone has heard the story, or stories, about someone being pulled over for an alleged broken tail light, only to be charged with DWI. But believe it or not, police officers are not out to pull everyone over and charge them with DWI. In fact, they are trained to figure out when it is more likely that someone is driving while intoxicated.

For ease of reading, I will use the term DWI througout this article. But I could easily use DUI, or OUI, or OWI, all of which can mean similar things in different states. But generally police officers divide their DWI detection strategy into three phases, vehicle in motion, personal contact, and pre-arrest screening.

Phase 1: Motion.

In phase 1, the police officer is trying to answer the question of whether to stop the vehicle. It begins with the initial observation of the vehicle and the manner in which it is being driven.

Phase 2: Contact.

In phase 2, the police officer is trying to answer the question of whether to ask the driver to exit the vehicle. It begins with the initial contact with the driver and the observations of the police officer. During the personal contact phase, there is an opportunity for the officer to observe and speak with the driver.

Phase 3: Screening.

Phase 3 generally consists of the field sobriety tests. The officer wants to determine whether there is probable cause to arrest the driver for DWI. The National Highway Traffic Safety Administration recognizes three standardized field sobriety tests – horizontal gaze nystagmus, walk and turn, and one leg stand. Officers will often take this one step further and give a preliminary breath test or non-standardized field sobriety tests.

During all three phases, the police officer looks for certain clues or acts that help demonstrate an increased likelihood that the driver is impaired by alcohol. The officer is further trained to include each one of these observed clues in notes and/or a police report.

So what should be done with this information? Well, knowing about the three phases of DWI detection are the cornerstone of assembling the best DWI defense possible.

I am not your attorney and you are not my client. This is not legal advice; it is merely information. If you need legal advice, then consult with an attorney for your specific situation. If you need a DUI attorney in DC or Virginia, contact a DC DUI lawyer or Virginia DUI attorney without delay.


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How A DUI Attorney Uses Logic To Show That Field Sobriety Tests Are Inherently Unreliable

September 22nd, 2010

Field sobriety tests supposedly help measure whether a driver of a vehicle is too impaired by alcohol or drugs to properly perform the multitasking required to drive a vehicle. In other words, they are meant to prove that the driver is either driving under the influence or not.

What is logic? It is the study of the principles that form the basis of correct reasoning. Many logicians distinguish betweeh the principles that form the basis of correct reasoning and the psychology that governs correct reasoning. The ideas are similar, however, in that they both provide measurement for the validity of certain arguments. In plain English, logic is the determination of whether certain conclusions can be drawn from varoius assumptions. Logic becomes obsolete when the various assumptions are incorrect. We can illustrate this problem through the use of field sobriety tests.

Premise: If you are drunk, then you are uncoordinated.

Field sobriety tests, and the guilty verdicts that follow them, are based on this faulty premise. It assumes that you are uncoordinated if you are drunk. But there are so many variables that go into why people would be uncoordinated if they are drunk. It is a fault premise. Let’s take another example. What about the following premise: if you are good at football, then you are fast. Seems reasonable, right? Wrong. What about kickers, punters, or offensive lineman? Some quarterbacks aren’t even fast.

Inverse: If you are not coordinated, then you have been drinking.

The second cornerstone of field sobriety tests, and even more ridiculous than the faulty premise. The inverse assumes that everyone in the world who is uncoordinated – the little kid in elementary school who was always picked last, babies who haven’t learned to walk yet, Gus Frerotte, my sister – are all drunk. The inverse of my football example is that if you are fast, then you are good at football. This doesn’t make sense either. I am fast, but I am not good at football.

Converse: If you aren’t drunk, then you are coordinated.

Put another way, the converse states that if you are not drunk, then you are not uncoordinated. So everyone who isn’t drunk is coordinated. Again, think of the little kid playing kickball. That kid wasn’t drunk. But That kid also wasn’t coordinated. The football converse is that if you are not good at football, then you are not fast. Usain Bolt is not good at football. Usain Bolt is very, very fast.

Contrapositive: If you are coordinated, then you aren’t drunk.

One of the things that law enforcement officers like people to believe is that everyone who is drunk will drive their vehicle like a madman – weaving in and out, crossing over center lines, etc. This is not the case. Plenty of people drive their cars or act coordinated when they are drunk. So coordination doesn’t necessarily mean not drunk. Back to football (because I am a huge football fan), to say that if you are not fast, then you are not good at football (the contrapositive) is also not necessarily true. I again point to the kickers, punters, and offensive linemen of the world.

Why do we care about all this? Well, our criminal system was founded on “innocent until proven guilty.” We would rather see 99 guilty people go free, then lock up even 1 innocent person. So this does matter. Field sobriety tests are unreliable and they don’t prove that someone has been drinking or are guilty of driving under the influence.

I am not your lawyer. You are not my client. This is not legal advice. It is merely information. Every situation is different and you should contact an attorney licensed in your state to discuss your specific needs. If you need a DUI defense attorney in Maryland or Virginia, contact a Maryland DUI attorney or Virginia DUI attorney without delay.


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What A DUI Attorney Would Tell You About Field Sobriety Tests

September 8th, 2010

Field sobriety tests. Everyone knows what they are, but few people know much more than that. Standardized field sobriety tests (by the NHTSA) include the horizontal gaze nystagmus test, one-legged stand test, and the walk-and-turn test. Often times, the administering police officer will add some non-standardized tests to the mix.

But what is more important than the type of test given is the purpose for which the test is given. To understand field sobriety tests, you have to know what they are meant for. They are not “tests” in the traditional sense, meaning that you can’t “pass” these tests. They are meant to test whether you are too impaired to drive safely.

Before I go any further, this article is not, nor is it intended to be, legal advice. If you need a DUI attorney, you should contact a lawyer who is licensed in your specific state.

While field sobriety tests are administered every day to determine whether people are too impaired to drive safely, they are inherently unfair. There are so many reasons, independent of alcohol, as to why a driver might perform poorly on these tests. What if the driver is tired? What if the driver is simply uncoordinated? What if the driver is distracted by something else in his or her life?

In addition to all the variables, these tests are usually performed at night under pressurized circumstances on the side of the road. Even the most sober person in the world will have trouble in this environment.

Finally, field sobriety tests (and how the driver fared) are completely in the eye of the beholder. The beholder in this case is the police officer. Whatever he or she says with respect to how you performed is likely not to be questioned.

As a DUI attorney, I am happy when a new client tells me that he or she did not take field sobriety tests after being stopped for suspected DUI. This makes my job a little bit easier (of course, there is usually that pesky breath machine to deal with as well), because the field sobriety tests are designed for the driver to fail.

There are two more things to realize about field sobriety tests. The first thing is that they are usually optional. Find out whether this is the case in your jurisdiction. The police officer will rarely tell you that. If the officer is asking you to take field sobriety tests, he or she has already likely smelled alcohol on your breath and is going to arrest you. Don’t give the state more evidence.

The second thing is that field sobriety tests are not an exact science. Often times, the police officer will not have followed the proper procedure. In other words, the evidence produced as a result of taking the tests is defensible.

For more information on DUI, or other traffic-related offenses, take a look at the traffic attorney blog, written by a DUI attorney.


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What Should I Ask My DUI Attorney At Our First Meeting?

August 25th, 2010

Intro:

If you have been pulled over for suspected DUI, and given a citation for driving under the influence, you may believe that you have no chance at fighting your case. But in reality, the prosecution still must prove beyond a reasonable doubt that you were, in fact, driving under the influence of alcohol.

This article is not, nor is it intended to be, legal advice. If you require the advice of a DUI attorney for your specific needs or situation, you should do so. Additionally, remember that not every attorney is licensed to practice in every jurisdiction, so you should seek a DUI attorney that is able to practice in the State or jurisdiction where you received your DUI charge.

1) Driving a vehicle:

a. The State must prove that you were “driving.” The definition of driving varies from jurisdiction to jurisdiction, and it is easy to prove if you were driving down the street in your car, did something wrong, and a police officer pulled you over. But it isn’t easy to prove if the car was stopped in a parking lot or garage, you were asleep, or the car was off. These can raise questions about the driving element.

b. You also need to be driving a vehicle. Again, if you are driving a regular automobile, then this is simple for the prosecution to prove. But what constitutes a vehicle? Again, the issue can be blurred. As an extreme example, what if you are on a bike with a portable fan taped to the car seat, which helps propel the bike forward?

Although it has happened, usually the question of whether a DUI defendant was driving the vehicle is not an issue more often than not. But it is important to know that it can be an issue, if the facts are there to create a dispute.

2) Under the influence of alcohol or some other substance:

a. There are generally two ways the prosecution can prove that you were driving under the influence. The first is through testing your blood alcohol content (BAC), which is the method that we are most keenly aware. “What did you blow?” is often the first question that anyone is asked when retelling their DUI story. Many states have a BAC threshold, which amounts to “under the influence per se,” meaning the BAC at which the State has decided you are automatically deemed under the influence without the need for further evidence. But, in any case where the accused’s BAC is tested, the reliability of the test is an issue. The State still needs to prove that the test is reliable enough that the judge or jury should use it against you.

b. The prosecution can also prove beyond a reasonable doubt that you were under the influence by taking the testimony of others at the scene (i.e. people who observed you in whatever state you were in). This is where field sobriety tests are crucial. If you agreed to take them (in many states, they are optional), then the prosecutor will assuredly ask the police officer his or her impressions about how you did on the tests. Additionally, if you told the officer that you had been drinking, or if you speech was slurred, this is evidence of intoxication. The good news is that you can defend yourself at trial. You or your attorney can poke holes in the witness’s testimony on cross-examination. You can also call your own witnesses, if they have personal knowledge of your level of intoxication.

End note:

The important thing to note is that being charged with a DUI doesn’t mean being found guilty of DUI. There are many ways to challenge a DUI charge, and they start with the elements of the offense.

A DUI citation carries with it a load of consequences. For this reason alone, you should hire a DUI attorney to represent your interests. If you receive a DUI citation in Virginia or Maryland, contact a Virginia DUI lawyer or Maryland DUI attorney without delay.


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