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Birmingham DUI Lawyers

1. Steven Eversole: 1. Factors Other Than Alcohol Can Cause Poor Performance On DUI Field Sobriety Tests Even if you performed less than perfectly on the DUI field sobriety tests, this may be attributable to unfair test conditions such as: * The tests occurring on uneven surfaces or slippery terrain * The distraction of flashing lights and traffic whizzing by * The test area being too dark or amidst glaring lights * Cold temperatures, rain or wind * Unsuitable footwearÑsuch as boots, high heels or dress shoes * Nervousness, anxiety and/or frustration Most people who had nothing to drink would still struggle with the FSTs under these conditions. The upshot is this: even if you struggled on the roadside tests, this may well be attributable to the setting and circumstances rather than attributable to you being intoxicated. If you do not believe me, simply try the standardized field sobriety test at home, in a comfortable setting, on a steady floor, without any nervousness or anxiety. This is often enough, when combined with a skilled DUI defense litigator to raise reasonable doubt in jurors minds as to whether or not you were indeed intoxicated. 2. There Are Often Innocent Explanations For The Symptoms Of Intoxication Police officers almost always claim to have observed certain Òobjective symptoms of intoxicationÓ in the DUI suspect. The standard list includes: * Bloodshot and watery eyes * Slurred speech * A flushed face and * An unsteady gait DUI police reports feature pre-printed boxes for these symptoms that officers merely check off. Of course, the officers almost never photograph, videotape or audiotape the DUI suspect so that jurors can later judge for themselves whether and to what extent these symptoms were present. In any event, non-alcohol causes often explain these observations. For example, fatigue, allergies and eye strain cause bloodshot eyes. Nervousness, embarrassment and anger over the DUI traffic stop cause flushing. Intimidation and fluster cause slurred speech. The officer rarely takes these innocent explanations into account. The DUI defense attorney must emphasize to the jury that the evidence is just as consistent with non-alcohol explanations as it is with intoxication. 3. Breath Testing Machines Mistake Other Chemicals for Alcohol DUI Breath alcohol testing machines also detect non-alcohol compounds, which they frequently mistake for alcohol. Among the compounds most commonly mistaken for alcohol are ethylene, toluene, nitrous oxide, diethyl ether, acetonitrile and isopropanol. The presence of any of these compounds in the DUI suspectÕs lung tissue will likely cause a false, or falsely high, blood alcohol reading. We find that people frequently ingest these compounds at work or in other environments where the chemicals are present. 4. The Presence of Mouth Alcohol Can Contaminate The Breath Alcohol Test Results Ideally, DUI breath testing devices detect alveolar air of the deep lungs, which is loosely correlated with blood alcohol level. But the breath testing machine can be ÒtrickedÓ by latent alcohol in the mouthÑoften caused by burping, belching, or the recent use of cough syrup, cold medicine, mouthwash or breath spray. When the breath testing machine picks up mouth alcohol rather than deep lung air, it gives BAC readings greatly higher than the true BAC. This becomes a particular problem for DUI arrestees with dentures, denture adhesives, braces, cavities, food impactions, orthodontic work or who have food particles trapped between their teeth (as all of these conditions tend to produce mouth alcohol). 5. Field Sobriety Tests Wrongfully Convict 33% of DUI Suspects and Provide A Very Poor Measure Of DUI Impairment Even when the standardized field sobriety tests are administered perfectly (which is rare), they still provide a very inaccurate measure of whether a DUI suspect is impaired. According to NHTSA, for example, the one leg stand test has a 65% accuracy rate and the walk-and-turn test a 68% accuracy rate. Not only do these stats. presume a perfectly administered test, they also assume every person is physically the same, without disability, inner ear problems, or infirmity in any way. This means that if people were convicted based on these roadside tests, one third of them would be innocent and wrongly convicted. Or, viewed another way, when officers arrest DUI suspects based on failing these tests, one in three suspects is wrongfully arrested. 6. Rising Blood Alcohol Level: A DUI suspect can blow a .15 at the police station; but have had a .07 BAC when he got pulled over. Why? Because alcohol takes an average of 50 minutes, but can take as long as three hours, to absorb fully into your bloodstream and create your peak blood alcohol level. This is critical if the DUI traffic stop occurred relatively soon after you finished drinking. Your BAC was probably still rising when you blew in the machine. This means that even if your BAC was above .08 when the blood draw or breath test occurred at the police station (or hospital), it may well have been below .08 when you were actually driving. There is no law against having a BAC above .08 at a police station; itÕs only the blood alcohol level while actually driving that counts for DUI purposes. 7. Alabama Law Requires a 20 minute Observation Period Before The Breath Alcohol Test: Alabama regulations require the officer to watch the DUI suspect continuously for at least 20 minutes prior to administering the breath alcohol test. The officer must make sure that during this period the person does not consume anything, burp, belch, hiccup or regurgitate. Any of these may cause alcohol to travel from the stomach to the mouth. Blowing this Òmouth alcoholÓ into the breath machine triggers an exaggeratedly high BAC reading. Officers rarely follow this required observation procedure. They usually perform paperwork, write reports, set up the machine and converse with their partners, diverting their attention from the DUI suspect who must be watched vigilantly during this period. Failure to follow this procedure casts doubt on the validity of the test result, and can sometimes get the test thrown out of court altogether. 8. Inaccurate Blood-Breath Partition Ratio -- Ratio is should be based upon Individual Differences: DUI breath testing assumes that Òbreath alcoholÓ accurately reflects blood alcohol based on a 2100-to-1 partition ratio. This assumption rests on the proposition that the average ratio across the population is 2100-to-1. But studies reveal that the ratio of blood to breath varies greatly among individuals. A DUI suspect with a ratio lower than 2100-to-1 will generate an inaccurately high reading from a breath alcohol test. And thereÕs no way to determine what a given personÕs ratio is, or what it was at the time of the DUI breath test. 9. The Police Officer Failed To Read You Your Miranda Rights: Police must advise you of your Miranda Rights in a DUI case if (1) you are in custody and (2) they question you seeking to illicit an incriminating response. If the officers continued to interrogate you after placing you in custody for DUI, and did not first read you your Miranda rights and obtain a valid waiver, then your post-custodial statements will likely be excluded from evidence. 10. Alcohol On Your Breath Does NOT Mean You Are Under the Influence: In explaining why he believes you were drunk, the DUI officer almost always mentions smelling Òa strong odor of alcohol on the suspectÕs breath.Ó But the officer looks foolish on cross-examination when he admits that alcohol itself (ethanol) has no odor. Rather, itÕs the mixing agent or flavoring that produces the odor we associate with alcohol. If you doubt this, go to the market and buy a 6-pack of a non-alcoholic beer. It tastes and smells just like beer; but it contains no alcohol. Also, vodka is a colorless and odorless alcohol. You could drink a gallon vodka and your breath would not smell. Indeed, laboratory studies show that police officersÕ perceptions of how strongly a personÕs breath smells of alcohol simply doesnÕt correlate with his/her actual blood alcohol level. All that can be gleaned from the Òodor of alcohol on the breathÓ is that a DUI suspect probably consumed some alcohol recently. But it does not provide evidence that the person drank enough to be Òunder the influenceÓ or to have a BAC .08 or higher. Field sobriety tests are very inaccurate.Ê The tests are completely subjective and should not be used as proof of guilt in any court proceeding.Ê Has anyone ever passed a field sobriety test in Alabama?Ê I doubt it.Ê If the cop wants to arrest you, you can bet the night in jail that your performance on a field sobriety test will make little difference.Ê Apparently, cops are like superman, they have laser vision.Ê They areÊable to discern an inch difference in the placement of your feet on a dark highway with little to no light,Ê and are able to stand on one foot while counting for 30 seconds at a time, without ever moving a muscle or slightly adjusting their leg.Ê I don't know about you, but standing on one foot for thirty seconds is hard to do at all, sober or not.Ê Don't believe me, try it.Ê Make sure your foot does not touch your leg or almost touch the ground, and make sure you don't sway too much while doing so either.Ê I have heard all these grounds used as a cops reasoning to arrest someone for DUI.Ê As I have said on this blog several times, do not take a field sobriety test.