Sunday, April 3, 2011

DUIs are like snowflakes...

They're all different.  The following is a brief overview of some DUI frequently asked questions and the answers thereto. Hopefully it will help explain to my readers why some DUIs get dismissed and some don't.  I hope you enjoy reading it.

Question:  Can I refuse to perform Field Sobriety Tests?

Answer:  Yes.  You can.  And you should.

Keep in mind that Field Sobriety Tests ("FSTs") and breathalyzers are two completely different animals.  There are legal ramifications to refusing to submit to an Intoxilyzer-type test (more on this later).  However, there is no law in this great Commonwealth that requires you to perform FSTs.

A lot of clients believe that they convince a police officer to let them go if they just perform the tests and pass them.  The problem with that rationale is this: the police officer already suspects you of drinking and driving if they're asking you to perform FSTs.  The police officer gets to administer the test, and the police officer (who already thinks you are drinking and driving) gets to subjectively determine the results of the test.  If you don't perform the tests, you won't give them ammunition to use against you.  Don’t perform these tests.  

I've said it before and I'll say it again:  Cops are not your friends.  They are not trying to help you.  Do not help them build a case against you.

Question:  Why did the officer make me blow on a breathalyzer twice?

Answer:  Because the first one was inadmissible in court.

When I see clients who have gotten a Kentucky DUI charge, often they want to know why they had to provide two breath samples to the Police.  The short answer (which is the only answer I’m going to give you on this lazy Sunday) is that Police usually offer two breathalyzers.  The first one you might encounter would be the Portable Breath Tester, or “PBT.”  Officers carry the PBT on their Batman-esque utility belts in case they “detect the odor of alcohol on or about your person.”  This PBT is a nicer, more expensive police version of the $80.00 “AlcoHAWK slim” PBT that I own and keep in my golf bag. 

The problem with PBTs (even Police PBTs) is that they are not 100% accurate.  In fact, they are consistently inaccurate unless you calibrate them regularly.  Because of the inherent un-reliability of these machines, the results that they provide are inadmissible in a Kentucky Court of Law.  You can and should refuse to take a PBT. 

The second type of breath tester IS admissible.  After an arrest, (if you are not asked to submit to a blood or urine test) you will most likely be asked to give another breath sample back at the police station.  The police officer will probably lock you up and “observe” you for at least twenty minutes before asking you to step up to a much larger breath tester.  Most police departments in Kentucky use the Intoxilyzer 5000, which is manufactured by CMI, Inc., in Owensboro, Kentucky.  These machines (if calibrated and serviced regularly) are about as reliable as breath testers come.  There are legal ramifications to refusing to submit to an Intoxilyzer-type breath test.  You should talk to a lawyer about whether to submit to an Intoxilyzer test.

There are a lot of rules concerning how a police officer must administer a breath test – for example, it must be done within 2 hours after the cessation of your vehicle in order to be admissible in a per se prosecution – so talk to a lawyer about your circumstances.  The results of your breathalyzer may or may not be allowed in Court.

As a side-note, if you tend to drink a couple of beers while playing golf (or other activity), you should be careful about how many you have consumed, and how long it took you to consume them. It wouldn't hurt to get an "AlcoHAWK slim" and keep it in your golf bag (or other...activity...bag).  Just in case.  And if the situation is questionable, call a taxi.

Question:  If I get a DUI and my BAC was really high, shouldn’t I just go ahead and plead guilty, instead of hiring a lawyer?

Answer: That's a bad idea.  Let me tell you why.

If you have a DUI charge in Kentucky, your BAC isn’t the only factor in your case.

If you end up blowing under a .08 on an admissible breath test, you have a pretty great case.  Feel free to skip ahead to the section which includes my contact information.  If, like the vast majority of my DUI clients, you blow over, it is time to explore other alternatives to your defense.  Typically, I tend to fight Kentucky DUI charges in two ways.  1) Attacking the stop; and 2) Attacking the FSTs.  There also may be other issues, such as "control" of the vehicle.

1) Police aren’t allowed to stop anyone for any reason.  There are legal standards for when Police may effectuate a traffic stop – which is great, because otherwise, police would have carte blanche to abuse their authority (racial profiling, for example, could be even more rampant).  In Kentucky, a police officer must have reasonable, articulable suspicion that you are engaged in criminal activity to pull you over.  If the officer did not have reasonable, articulable suspicion, the officer performed an unlawful stop.  The ramifications to an unlawful stop are tremendous.  A case can be completely dismissed on the basis of an unlawful stop.

For example, I recently represented a client on a Bardstown DUI charge who stopped his truck in the parking lot of a Doctor’s office after business hours.  It was approximately 11:00pm.  The police officer felt that being at a closed Doctor’s office at 11:00pm was “suspicious” activity.  As my client began to pull out of the parking lot, the officer drove over and stopped my client.  The client blew “over the limit” on an Intoxilyzer test.  After a grueling hearing before a District Court Judge, I convinced the Judge that the officer lacked reasonable, articulable suspicion for the stop – a violation of my client’s 4th Amendment rights.  The case against my client was dismissed.  This was just one of the many cases I’ve seen where the case was dismissed because an officer stopped someone in an unlawful manner.  Each case is different, and each case has its own set of circumstances and issues.  Your case may or may not be able to be dismissed.  Talk to an attorney about your case for more information.

2) Officers are taught to perform FSTs according to the National Highway Traffic and Safety Administration (“NHTSA”) guidelines.  For some officers, it has been years since they learned how to perform the tests.  Unfortunately, some officers “guess” at how to perform the tests if they cannot remember the details.   If they do not perform the tests correctly, the results of those tests may not be admissible as evidence against you.  That makes a lot of sense, because a flawed test can often produce flawed results.

For example, I recently represented a client on a Louisville DUI charge, and was able to show the Judge that the officer incorrectly performed the Horizontal Gaze Nystagmus test and the Walk and Turn test.  The Judge agreed that the tests were not performed in accordance with the NHTSA guidelines, and held that the tests were inadmissible.  Again, each case is different, and each case has its own set of circumstances and issues.  Your case may or may not be able to be dismissed.  Talk to an attorney about your case for more information.

Lastly, there may be other circumstances which might be beneficial for your DUI charge.  In Kentucky, the Commonwealth must prove beyond all reasonable doubt that you were not only under the influence, but that you were in control of, or operating a motor vehicle.  This “control” of the vehicle issue is very fact-specific.  Is someone who is asleep in a parking lot of an apartment complex “in control” of the vehicle?  What if they are in the passenger seat?  What if they are in the driver’s seat but the keys are not in the ignition?  What if the car is on but not in gear?

I (very) recently tried an Elizabethtown Driving on a DUI Suspended License charge in front of a Hardin County Jury.  The facts were this: my client was at Court, and the Judge suspended his license for a DUI.  (I did not represent the client for the DUI charge).  The client walked out of the courthouse, and a plain-clothes police officer followed him.  Client went up to his truck, opened the door, got inside, started the vehicle and pressed the brake.  After the brake lights came on, the officer shouted for my client to get out of his truck, and client was arrested.  At trial, the issue of “control” of the vehicle was heavily debated.  In the end, I was able to convince the Jury that my client was Not Guilty.  After only twelve minutes of Jury deliberation, the client walked away free and clear.


All Kentucky DUI charges are different.  Even from this very cursory overview of some DUI issues, you can tell that some “small” facts can completely change the outcome of a case.  Even if you blow over the legal limit on an admissible breath tester, you should talk to an attorney about your DUI charge.  At Gruner & Simms, PLLC., we take DUI defense very seriously.  We have handled numerous cases with favorable results.  If you have been charged with a DUI in Louisville, Lexington, Frankfort, Elizabethtown, or the surrounding areas, call 502.618.4949 and schedule a free consultation with an experienced Kentucky DUI lawyer.

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