One of the most common questions that I get is "but I'm guilty, what can you do?" The phrase "but I'm guilty," could be the subject of an entire legal textbook but the short answer is that no one is guilty before they've even been to Court. Every individual is presumed innocent of any criminal charges. It is the State's responsibility to prove each and every element of each offense beyond a reasonable doubt before anyone can be found guilty. An experienced defense attorney should be able to review your case and identify the areas where the State may have trouble proving guilt beyond a reasonable doubt. There are also many steps a defense attorney can take during the legal process to shape the outcome and ultimately reach a better result than what originally seemed possible. This is by no means an exhaustive list but here are some of the most common issues that I see in OUI cases.
1. Improper stop by police
The U.S. Constitution prohibits police from arbitrarily stopping or pulling over private citizens without what's known as "reasonable suspicion." Interpreted over decades by the U.S. Supreme Court, this concept is generally defined as "specific and articulable grounds that provide [police] with reasonable suspicion that criminal activity is afoot…." In English, this means that the police must have more than a hunch or a gut feeling that a certain individual is committing or has committed a crime.
In the context of an OUI—or any traffic stop, for that matter—police must actually see the suspect do something wrong or have reliable information from a witness that the suspect did something wrong. If you were obeying the speed limit, not swerving, obeying all traffic laws, and did not have a mechanical malfunction with your vehicle, it may be possible to assert that the police did not have reasonable suspicion to pull you over, and any evidence gained thereafter is inadmissible.
2. Failure to follow proper field sobriety test protocol
There are certain protocols that must be followed when field sobriety tests (FSTs) are administered. Failure by law enforcement to adhere to the predetermined procedures can quickly result in a suppression of any evidence gathered during the test, especially if officers engaged in disrespectful, overly intimidating, or inappropriate conduct toward the test subject.
Further, FST observations are considered just one component of the state's evidence, and are not by themselves proof of intoxication. For example, the significance of a heel-toe test may be diminished if the suspect was required to take the test while wearing unreasonable footwear, or if the FST was conducted in inclement weather.
3. Improper testing and storage of blood alcohol samples
First, police must follow specific procedures for all chemical tests and they must be conducted by licensed individuals and done with certified equipment. Any mistake or error in procedure, licensing or certification can be a basis to exclude the results of a chemical test.
Additionally, police are required to ensure that blood samples are properly maintained after the test to avoid fermentation, contamination, or mislabeling. If questions arise as to the integrity of the sample, it could be thrown out—leaving the prosecution with little to rely upon while advancing its case.
4. Medical conditions
If you have a medical condition, this can sometimes not only create the appearance of drunkenness, but can even skew the results of a roadside breathalyzer test. Fatigue or neurological problems can cause slurred speech, while allergies, sinus troubles, and crying can cause watery eyes.
Moreover, an "alcohol smell" on the breath can derive from a diabetic side effect known as ketosis, which involves the fermentation of glucose in the blood stream, creating the effect of an alcohol odor. Ketosis can also cause an otherwise sober individual to register the presence of alcohol on a breathalyzer test.
5. Lack of Evidence
To be convicted of an OUI, the State has to be able to prove that a Defendant was operating a motor vehicle and was impaired by alcohol or drugs at the time of operation. A chemical test is only evidence of possible impairment when the test was taken. In many cases, there is minimal evidence to show that a Defendant was impaired when actually driving. For example, if a Defendant blows .10 on an intoxilyzer test taken an hour after driving, the one certain thing about that result is that the Defendant's blood alcohol content was definitely not .10 when he or she operated a motor vehicle. The level of alcohol or drug in a person's system is essentially never stable, it is either rising or falling. If the Officer does not establish a clear history of alcohol/drug use as well as time and length of operation, it can be very difficult to prove an OUI.
6. Improper interrogation or Miranda violations
The U.S. Constitution also requires police to inform a suspect once he or she is officially "under arrest," which is distinguishable from a mere conversation during which the individual is free to leave.
If a person is placed under arrest, police must immediately advise the suspect as to their rights (which include the right to remain silent, the right to an attorney, and the right to court-appointed counsel if indigent) and the fact that statements made hereafter may be used in a court of law by the prosecution. If Miranda warnings are not issued, any evidence gathered thereafter (such as incriminating statements, biological evidence, field sobriety test observations, etc.) will likely be excluded.
7. Inappropriate communication with the defendant
Prosecutors know that a defendant cannot be interrogated, or even spoken to, without the consent and/or presence of counsel.
However, this does not stop law enforcement and district attorneys from attempting to avoid the hassle of a trial by enticing a defendant with an attractive plea bargain—often using strategies that a DUI attorney would never allow.
If this happens, any pleas entered outside of due protocol can be quickly overturned after showing that police and/or prosecutors improperly communicated with the defendant. This will also not sit well with the judge assigned to the case.
8. Violations of the rules of evidence & procedure
Finally, there are several OUI defenses that may not arise until the actual day of trial, including violations of the state rules of criminal procedure and evidence. This broad category encompasses the rules against hearsay, the introduction of improper character evidence, and the use of unauthenticated documents, recordings, or photographs.
For example, the prosecution may attempt to introduce evidence of a police video purporting to derive from the dashboard camera of an officer present at the defendant's field sobriety test. However, prosecution must elicit testimony from the officer that he was, in fact, present at the time of the FST, that the individual featured in the video is the defendant, and that the recording in question occurred on the date and time asserted by the prosecution. Otherwise, the video will be excluded.
These defenses are the best place to start when trying to beat an OUI charge, but depending on your situation, an experienced OUI attorney may be able to provide even more options to reduce or dismiss your OUI charges.