Westbury DWI Lawyers
- Nassau County DWI Lawyers:
Below are a list of some defenses ... in a
typical case. Obviously, not every one applies in
every case. But the list gives you a flavor for
the sorts of problems plaguing the state’s
evidence. Contrary to popular belief, DWI cases
do not rest on hard science. They rest on
pseudo-science, often times junk science.
Unfortunately, hundreds of innocent people get
convicted of DWI every court day, often by
pleading guilty even in the face of spurious
prosecution evidence. Hopefully, you won’t be one
of them. 1. GERD Or Heartburn Caused A Falsely
High Reading On The DWI Breath Alcohol Test
Suffering from Gastroesophageal Reflux Disease
(GERD), acid reflux or heartburn can “fool” the
DWI breath machines, causing an inaccurately high
reading of the blood alcohol level. The breath
machine is supposed to receive and measure
alcohol from the deep lung tissue, a region of
the lungs called the alveoli. Breath alcohol
concentration from this “alveolar air" or “deep
lung air” is thought to correlate with blood
alcohol concentration. But GERD can cause alcohol
to travel from the stomach back to the throat and
mouth. When this happens, the DWI suspect blows
this “mouth alcohol” (rather than alveolar air
alcohol) into the breath machine. The machine
then provides a reading higher—often times
dramatically higher—than the DWI suspect’s true
BAC. A person with a true BAC of .05 can read
.20. This problem is not limited to those who
suffer from regular or chronic GERD. Anyone who
recently ate a large meal, a greasy meal or a
spicy meal may experience acid reflux or
heartburn. If you take a DWI breath test during
this period, the results may be erroneously high.
2. The Nassau County Police Officer Failed To
Read You Your Miranda Rights Police must advise
you of your Miranda Rights in a Nassau County DWI
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
DWI, 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. 3. Weaving Within Your Lane Does
Not Justify A DWI Traffic Stop Many Nassau County
DWI traffic stops occur because the officer
claims to observe the DWI suspect weaving within
his/her lane, perhaps with the tires touching the
fog line or yellow lane divider, or briefly
encroaching into the neighboring lane. New York
Courts have ruled that this usually does NOT
justify a DWI traffic stop—unless an “experienced
officer” observed “pronounced weaving” for a
“substantial distance.” If the Nassau Court finds
that your traffic stop was not justified, the
entire Nassau County DWI case will most likely
be dismissed. 4. Alcohol On Your Breath Does NOT
Mean The Driver Is Under the Influence In
explaining why he believes you were drunk, the
Nassau County DWI officer almost always mentions
smelling “a strong odor of alcohol on the
suspect’s breath.” But the officer looks foolish
on cross-examination when he admits that alcohol
itself (ethanol) has no odor. Rather, it’s 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 O’Doul’s. It
tastes and smells just like beer; but it contains
no alcohol. Indeed, laboratory studies show that
police officers’ perceptions of how strongly a
person’s breath smells of alcohol simply doesn’t
correlate with his/her actual blood alcohol
level. All that can be gleaned from the “odor of
alcohol on the breath” is that a DWI suspect
probably consumed some alcohol recently. But it
does not provide evidence that the person drank
enough to be “under the influence” or to have a
BAC .08 or higher. 5. The Officer Lacked Probable
Cause For The DWI Arrest After conducting the
roadside Nassau County DWI investigation, the
officer can only arrest you (apply the handcuffs
and take you away for a chemical test) if he/she
has “probable cause.” This means the evidence
must rise to a level in which a reasonable DWI
officer would believe a crime (drunk driving) has
been committed. You are entitled to a special
court proceeding—called a “suppression hearing”
—in which a judge decides whether the DWI officer
had probable cause for the arrest. At the
hearing, the officer testifies and is
cross-examined by the DWI defense lawyer. Our
Nassau County DWI firm conducts this hearing
routinely in DWI cases. If the judge decides the
officer who arrested you for DWI lacked probable
cause, then the subsequent breath or blood
alcohol test is excluded from evidence. Often,
the entire Nassau County DWI case is dismissed.
In practice, judges usually side with the
prosecution at the suppression hearing, finding
that probable cause existed. Still, the hearing
provides an invaluable opportunity to question
the officer and confront him/her about the
problems with the DWI investigation. This often
leads the prosecution to reduce the charge or to
settle the DWI case on terms more favorable to
the defense. 6. There Are Innocent Explanations
For Your Faulty Driving Perhaps the DWI officer
saw you swerving for a short distance, make a
wide turn or drift out of your lane. Of course he
will paint these as sure signs of drunk driving.
But in reality, sober drivers engage in these
sorts of driving miscues all the time. How often
do you see a car drifting around in its lane,
only to look over and notice the driver on the
cell phone? Or reading a map? Or eating? Usually,
the “bad driving” the DWI officer claims to
observe is just as consistent with a distracted
or inattentive driver—but otherwise sober
driver—as it is with a drunk driver. 7. The
Alleged Signs of DWI Are Actually Signs Of
Fatigue Many of the “typical” symptoms associated
with DWI can just as easily be explained by
fatigue. Sheer exhaustion often causes one to
drive his/her vehicle poorly, to have bloodshot
and watery eyes, to respond slowly to some of the
DWI officer’s questions, and to struggle with the
field sobriety tests that require vigilance and
good coordination. To be sure, driving while
exhausted or drowsy driving is dangerous in its
own right, and should be avoided. But the
symptoms of driving while exhausted can easily be
confused with the symptoms of driving while
intoxicated. Your Nassau County DWI defense
attorney must emphasize to the court these
non-alcohol-based explanations for the officer’s
observations. 8. Your Blood Alcohol Level Was
Rising A DWI 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 Nassau County DWI
traffic stop occurred relatively soon after you
finished drinking. Your BAC was probably still
rising. 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; it’s only
the blood alcohol level while actually driving
that counts for Nassau County DWI purposes. 9. An
Improper 20-Minute Observation Before The Breath
Alcohol Test Regulations require the officer to
watch the Nassau County DWI 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 “mouth alcohol” into the breath machine
triggers an exaggeratedly high BAC reading.
Nassau County DWI 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 DWI 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. 10. The Police Officer Lacked
Justification To Make The DUI Traffic Stop Police
officers cannot pull you over arbitrarily. To
conduct a lawful Nassau County DWI traffic stop,
the DWI officer must provide “specific
articulable facts” indicating a “reasonable
suspicion” that you were committing a traffic
violation. You are entitled to a special court
proceeding called a “suppression hearing” where a
judge determines whether the DWI officer can meet
this standard. If he cannot, in all likelihood
the entire DWI case will be dismissed. 11.
Inherent Error Rate In DWI Blood and Breath
Alcohol Testing Let’s assume maintenance and
calibration of the machines are perfect, the
breath or blood test is administered exactly
according to procedure, and no background or
physiological factors exist that would produce
false results (and, by the way, such a “perfect
scenario” is rare). An inherent error still
exists as to both blood alcohol testing
procedures. Most experts agree the inherent error
rate is about +/- .02 for DWI breath testing and
+/- .005 for DUI blood testing. 12. The DWI
Officer Has No Baseline For Your Performance On
The Field Sobriety Tests The Nassau County DWI
officer will probably claim you “performed
poorly” on the field sobriety tests, and that
this serves as evidence of impairment. But
“poorly” compared to what? This claim means very
little without knowing how you would perform
normally—even with nothing to drink. Indeed,
people vary tremendously in their natural ability
(or inability) to perform DWI field sobriety
tests. How well a given person performs the field
sobriety tests depends on many factors: natural
level of coordination and equilibrium, natural
level of balance, fitness level, composure in the
face of pressure, injuries, age and practice,
among others. 13. Factors Other Than Alcohol Can
Cause Poor Performance On DWI Field Sobriety
Tests Even if you performed less than perfectly
on the Nassau County DWI 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 footwear—such 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. 14. The
DWI Standardized Field Sobriety Tests Were Not Properly Administered The
National Highway Traffic Safety Administration (NHTSA) devised national
standards for how DWI officers are to administer the three standardized
field sobriety tests: the Horizontal Gaze Nystagmus Test, the
Walk-and-Turn Test and the One-Leg Stand Test. But DWI officers often
fail to adhere to these national guidelines. Many never even received
training as to the NHTSA guidelines. This opens up their whole Nassau
County DWI investigation to attack. Indeed, often times a DWI officer
will say in his report the DWI suspect “failed” or “performed poorly” on
the field sobriety tests; but when the performance is judged according
to NHTSA’s national standards, the person did everything correctly! This
underscores a basic fact of DWI defense: the arresting officers are
biased and frequently do slipshod DWI investigations. Their claims and
opinions should never be taken at face value. 15. The Non-Standardized
Field Sobriety Tests Lack Reliability The non-standardized field
sobriety tests include (among others) the finger-to-nose test , the
finger count test, the hand pat test, the coin pickup, the alphabet
test, the reverse counting test and the Rhomberg test (tilting your head
back and estimating 30 seconds). The National Highway Traffic Safety
Administration (NHTSA) has set no standards for how to administer, score
or interpret these tests, and no studies have ever shown them to be
reliable indicators of DUI impairment. 16. Field Sobriety Tests Provide
A Poor Measure Of DWI Impairment Even when the standardized field
sobriety tests are administered perfectly (which is rare), they still
provide a very inaccurate measure of whether a Nassau County DWI 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. 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 DWI suspects based on failing these
tests, one in three suspects is wrongfully arrested. 17. Mouth Alcohol
Can Contaminate The Breath Alcohol Test Results Ideally, Nassau County
DWI 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 “tricked” by latent alcohol in the mouth—often 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 DWI
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).
18. The Breath Alcohol Test Yields Unduly High Results During Absorption
Breath alcohol testing while alcohol is still absorbing into your
bloodstream often yields falsely high BAC readings. During the
absorption stage, which can last as long as three hours after you finish
drinking, the BAC in arterial blood is significantly higher—as much as
60% higher—than the BAC in venous blood. Because the alveolar deep-lung
air blown into the breath machine is bathed in arterial blood, not
venous blood, a falsely high BAC is generated. 19. Police Have No
“Special Ability” To Judge Intoxication Levels Police and Nassau County
DWI prosecutors like to suggest that trained and experienced officers
have a “special ability” to discern when a DWI suspect is under the
influence (and therefore jurors should defer to the officer’s opinion
that the DWI defendant was, in fact, impaired). But a controlled study
by Rutgers University’s Alcohol Behavior Research Laboratory found
otherwise. Police officers’ ability to judge intoxication levels was no
more accurate than that of bartenders or social drinkers. Moreover, none
of the three groups—experienced police officers, bartenders or social
drinkers—correctly judged levels of intoxication more than 25 percent of
the time. 20. No Sign Of Mental Impairment Being “under the influence”
consists of two types of impairment: mental and physical. Most police
will admit that upon being pulled over, the DWI suspect was coherent,
alert and responded appropriately to the officer’s questions. Therefore
no sign of “mental impairment” existed. But, as any DWI toxicologists
will tell you, “mental impairment” always precedes “physical
impairment.” So if mental impairment was not present, then, presumably,
neither mental nor physical impairment was present. 21. Innocent
Explanations For The Symptoms Of Intoxication Police officers almost
always claim to have observed certain “objective symptoms of
intoxication” in the Nassau County DWI suspect. The standard list
includes:
* Bloodshot and watery eyes * Slurred speech * A flushed face and *
An unsteady gait
DWI 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 DWI 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 DWI
traffic stop cause flushing. Intimidation and fluster cause slurred
speech. The officer rarely takes these innocent explanations into
account. The Nassau County DWI defense lawyer must emphasize to the jury
that the evidence is just as consistent with non-alcohol explanations as
it with intoxication. 22. Speeding Is Not Correlated With DWI In many of
our Nassau County DWI cases, the officer pulled the client over for
speeding. And the officer alleges the client to be under the influence
based (at least in part) on the fact the client was speeding. But
national studies demonstrate no correlation between speeding and
intoxication. A speeding driver is no more likely to be drunk than
sober. To be sure, speeding is often unsafe and a violation of the law
in its own right; but it is not evidence the driver is DWI. 23. Radio
Frequency Interference May Have Contaminated Your BAC Tests Radio waves
in the air—known as Radio Frequency Interference (or RFI)—can alter the
results of almost any DWI blood or breath alcohol testing device. Radio
Frequency Interference emits from almost any electronic device,
including police radios, police scanners, radar devices and computers.
Although studies have confirmed the danger of Radio Frequency
Interference or electromagnetic interference to render false BAC
readings, it is difficult to determine whether or to what extent RFI
altered the result in a given DWI case. Yet it is one more reason for
skepticism. 24. Breath Testing Machines Mistake Other Chemicals for
Alcohol DWI 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 DWI suspect’s 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. 25. Low-Carb Diets Can
Cause Falsely High DWI Breath Test Readings A DWI suspect on a low-carb
diet may generate an erroneously high blood alcohol reading from the DWI
breath testing machines. On a high-protein diet, the body produces
ketosis as it burns stored body fat for energy (a process that has
produced dramatic weight loss for many adherers to Adkins style diets).
Consumption of carbohydrates (such as alcoholic beverages) during
ketosis can cause the body itself to produce a substance called
“isopropyl alcohol.” Most Nassau County DWI breath testing machines
cannot distinguish “isopropyl alcohol” from ethanol (the alcohol that we
drink and that causes impairment). 26. Breathing Techniques May Alter
Breath Test Results Breathing techniques may produce falsely high breath
test results. A longer breath sample—more than 10 seconds—may generate a
significantly higher BAC reading because the machinery is calibrated to
test a 10 second sample. Additionally, a person who breaths shallow or
holds her breath may blow residual mouth alcohol, again producing a
higher reading than her true BAC. Hyperventilation may also impair the
test. 27. Breath Temperature May Alter Breath Test Results Most Nassau
County DWI breath devices calibrate to test breath at 34 C. Simulator
solutions use the same temperature. But when a DWI suspect’s breath
temperature varies—as is often the case—this can produce a falsely high
BAC result. Even a variation only one degree higher can produce a BAC
reading 7% higher. 30. A “Disconnect” May Exist Between Your BAC And
Symptoms Of Intoxication Certain symptoms of intoxication can
predictably be observed at each successively higher blood alcohol level.
Often we see Nassau County DWI cases where the person’s BAC reading
comes back very high, two or three times the legal limit. However, the
person’s driving, behavior and FSTs are consistent with sobriety or only
slight impairment. We know the BAC reading is wrong. It doesn’t match
the other evidence. We call this a “disconnect case.” Any time the
alleged blood alcohol level does not match up with the symptoms we would
expect to see at that level, the prosecution’s whole Nassau County DWI
case is called into question.
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