After your initial interview is completed, your DUI attorney will evaluate your case for trial or plea negotiation, if that option is available. Your attorney will thoroughly analyze the strengths and weaknesses of the state’s case and consider whether the state can prove each element of its case beyond a reasonable doubt. Additionally, your DUI attorney will analyze the state’s evidence, including officer’s reports, field sobriety tests, chemical evidence, state’s witnesses, and your own prior criminal record.
After evaluating the state’s case, your DUI lawyer will analyze the strengths and weaknesses of your own case, including the probable testimony of lay and expert witnesses, defenses available to and potential penalties facing you, and case law and relevant state statutes.
The first consideration is whether the state can prove beyond a reasonable doubt each element of the DUI offense that you are charged with. Your DUI lawyer must also examine whether the state can prove it had probable cause to stop you, based on your appearance, demeanor, conduct, and driving symptoms. How you reacted to the police officer once you were stopped will also have a bearing on evaluating the case. Suppose, for example, you immediately pulled off to the side of the road once the police siren or flashing lights were activated and were cooperative in answering questions and in agreeing to submit to both field sobriety and chemical tests. Further suppose you have a good recollection of these events. Under these circumstances, a high BAC reading can be shown to be inconsistent with your behavior and doubt can be cast upon the test results.
Your DUI lawyer will scrutinize the physical observations made by the arresting officer. Most police departments use Alcohol Influence Report forms or similar forms that allow the officer to make notes about your appearance, behavior, and potentially incriminating statements.
Your DUI attorney will carefully check for inconsistencies in the physical observations of you made by the arresting officer regarding symptoms of intoxication. For example, if your BAC result appears to be relatively high, but the physical observations as reported on the Alcohol Influence Report form or police report appear relatively normal, this inconsistency can be used to discredit the chemical test result.
Alternatively, if your stop and arrest was videotaped and the videotape appears to favor you, any negative observations made on the Alcohol Influence Report form can be called into question as being inconsistent with the videotape.
Finally, your DUI attorney will check to see whether videotaping was available and if it was, whether it was used. It may be possible to dismiss a drunk driving charge if the police had the ability to videotape you and failed to use it.
The Supreme Court has held that under most circumstances it is necessary to establish bad faith on the part of the prosecution if potentially exculpatory evidence is destroyed. However, even if the prosecution has not lost or destroyed the tape in bad faith, it may still be possible to create an inference that the videotape would have been favorable to you had it been preserved.
Your DUI lawyer will analyze and evaluate your results on field sobriety tests. Field sobriety tests that were not conducted properly have little to no value in proving intoxication. For discussion of the various field sobriety tests, see the articles in the Field sobriety tests section.
Coordination tests. The conditions under which the tests were given should be examined. Did the officer administer a field sobriety test that required you to walk and balance such as the walk-and- turn test or the one-leg stand test, in a well lit room in the police station, or by the side of a darkened road on a sloping gravel embankment? You must be evaluated for your own physical coordination as well. It is difficult for a sober person to perform many of these coordination-based field tests adequately.
Your DUI lawyer will also review carefully whether it is possible to have you demonstrate your ability to perform field sobriety tests in court. It may be possible to have you demonstrate difficulty in performing field sobriety tests at your trial to negate the state’s theory that any difficulty you had in performing the test was the result of intoxication.
Horizontal gaze nystagmus test. If the Horizontal gaze nystagmus test was administered, then you must be evaluated for naturally occurring nystagmus. This can be accomplished in your DUI attorney’s office during your initial interview. The proper administration of this test in your attorney’s office will provide a baseline to determine if the arresting officer administered this test to your correctly. Often this test is not properly administered. Provided that the improper administration can be confirmed through a review of the videotape or an evidentiary hearing, it may be possible to have the test excluded by motion prior to trial.
Other field sobriety tests. The Department of Transportation has issued a report entitled, “Improved Sobriety Testing,” DOT HS 806512 (January 1984). The report concludes that a combination of three tests—horizontal gaze nystagmus, walk-and-turn, and one-leg stand, gives the officer firm data upon which to base an arrest decision. The report implies that other common field sobriety tests do not provide the “firm data” required for the arrest decision. See Standardized vs. non-standardized DUI tests and Other non-standardized DUI tests.
For example, the police officer may ask a DUI suspect to recite the alphabet, pronounce certain words, or write certain statements. These “tests” are not truly indicative of sobriety. Poor performance on the “alphabet test” may indicate unfamiliarity with the English language, poor diction, or problems in literacy. Similarly, poor performance on a handwriting test may result from poor penmanship, disease, or anxiety.
At least one study has concluded that handwriting cannot be used to measure accurately the blood alcohol concentration of the writer. See Galbraith, “Alcohol: Its Effect on Handwriting,” 31 J. Forensic Sci. 2 at 580 (1986). The standard alcohol influence report form used by most police departments requests that the examining officer obtain a handwriting sample from the defendant. That sample is generally used to show that the defendant’s handwriting was illegible, sloppy, or otherwise difficult to read. The prosecution then argues that the poor handwriting reflects poor motor skills, thereby circumstantially demonstrating the effect of alcohol on the individual. If you gave a handwriting sample, your DUI attorney can use the Galbraith article or other authority to show that no accurate estimation of BAC (or impairment) can be made through the study of handwriting.
The most important part of the state’s case is the chemical evidence. Your DUI lawyer will review the legal rules and standards for chemical tests. Chemical test results are admissible only if they were administered in accordance with the correct standards. For example, admissibility of breath test results depends on:
If blood or urine testing was done, the qualifications and certifications of the laboratory and the technicians and the chain of custody of the sample must be examined. Other potential errors include faulty testing procedures, inadequate technician training, improper facility inspections, and failure to follow sample handling regulations. Reporting and equipment standards must be reviewed as well.
If a swab containing alcohol was used at the puncture site where the blood was taken, an unduly high and erroneous blood alcohol test can result. This contamination can lead to suppression of the evidence.
Where urinalysis is involved, your DUI attorney will investigate the possibility of challenging the reliability of urinalysis as a method of determining blood alcohol content.
If you refused to submit to a chemical test, your DUI attorney must evaluate the impact of your refusal on your defense. Although the state may be without the benefit of the chemical test evidence, the state may be able to introduce the fact that you refused into evidence. Your DUI attorney may, however, be allowed to demonstrate that your refusal to take the test was because of your desire to consult with counsel. This can constitute a good faith refusal to submit to a test, and may not in fact constitute a refusal. See If you refused to take a DUI chemical test for questions you may be asked on the stand regarding your refusal.
Your DUI lawyer will find out whether the state has any witnesses to corroborate the officer’s observations. The names and addresses of these witnesses are usually listed in the police reports, which your lawyer can obtain through discovery. Your DUI lawyer should contact these witnesses as soon as possible and interview them.
The last aspect of the state’s case that your DUI attorney must evaluate is your prior convictions or poor driving record. Your attorney must thoroughly examine the validity of these convictions. Your DUI attorney must consider whether you had counsel, whether the conviction was the result of a plea, how long ago the conviction occurred, and whether the conviction was the result of a juvenile DUI. Depending on the circumstances, your attorney may be able to prevent the state from using the conviction against you.