Monday, March 3, 2014

How To Defend an "Undefendable" DUI

        Let’s say you get a DUI, and things look pretty bad.  You’ve been arrested and you had an arraignment where the judge entered a plea of Not Guilty and told you to come back with a lawyer.  Your first question(s) may be “Do I really need a lawyer or would I just be wasting time/money - I think I’m guilty so why not just plead guilty?”
            After all, you may have a BAC over the “legal limit” and you might feel like fighting the case is futile.  Why not just cash it in like Seinfeld before things take a downward slump?  End it before it ends you, right?  Is it better to burn out or to fade away?  Elvis Presley, for example – had it; lost it.  Ended up doing shows in Vegas way past his prime and eating fried peanut butter and downer sandwiches.  Nobody wants to be old, fat Elvis.
            The big question is to know when to quit and when to go on. 
           A lot of people feel that if you have a DUI over a .08, you should throw in the towel.  That isn't necessarily true.  There may be a way to fight that "undefendable" DUI.
            The good news is – when it comes to DUI – you should get a free consultation with a lawyer.  That way you can find out if paying any money will be worth the fight.  Whether to cash those chips in or go and fight.  Any Louisville DUI lawyer worth a damn will at least give you a free consultation and tell you how they plan on fighting your case.
            Sometimes I tell clients I am sorry but the best I can do is get the best deal possible.
            But most of the times I find something. Even DUIs that start out looking problematic (with an “over the limit” BAC) usually have some shining beacon of defensible hope.  Today we’re going to talk about some of the ways a good Louisville DUI lawyer can fight a difficult DUI case.

1.  No bad driving.
            Even if your BAC is over the limit, most juries want to hear about bad driving in order to believe Beyond a Reasonable Doubt that someone is guilty of DUI.  They want to hear about swerving, crossing the line, causing an accident, going the wrong way down a one way street – just to name a few examples.  Better yet, a jury wants to SEE that stuff on a police officer’s in car video system.
            The good news for you: Most police officers in Kentucky don’t have in car video.  Louisville Metro Police officers usually do – but even LMPD officers sometimes don’t turn the video on (for VHS systems) or the system may be down.  Typically, police officers in other Kentucky jurisdictions do not have video systems – including the Kentucky State Police.
            Even if your officer has video of the stop, there still may be no evidence of bad driving.  Some DUIs come from non-traditional DUI stops.  For example, the officer may have pulled you over for expired tags, speeding a little over the limit, or for dark tint.  These violations are not evidence of intoxication because sober people are frequently stopped for the same. 
            The best case scenario for a DUI stop, from a defense standpoint, would be a roadblock stop.  In this situation, you may have been exhibiting no conduct whatsoever that would evidence of a violation – and the roadblock can be challenged if the police didn’t do everything properly.
            If a jury hears about one of these type of stops, they are missing a piece of the DUI puzzle: “Bad,” or intoxicated driving is a key component of a Guilty verdict.  Without bad driving, we may be able to prove reasonable doubt.  And you may go free.

2.  Borderline BAC.
         Even if you are “over the limit” you still may have a defendable DUI.  In order to win a per se prosecution for DUI, the Commonwealth would have to prove that at the time you operated a vehicle you had a BAC of over a .08.  The problem that prosecutors have, is that the BAC wasn’t taken until sometime AFTER you drove the car. 
            Before an officer takes your BAC at the station (this is the BAC result that is admissible in court) they have to watch you for 20 minutes.  It is likely that the ride in the police cruiser took several minutes (from the point of your arrest back to the police station).  So, it isn’t unreasonable to have a 30 minute difference between the time you were operating the vehicle and the time you took the BAC.  If your BAC was only a little over the limit, who’s to say that your BAC didn’t raise within that 30 minute time frame???  You could have been under the limit while driving and over the limit a half hour later.  That makes you Not Guilty of DUI.

3. A constitutional issue on the stop.
            Police officers can’t just pull you over because they want to.  They have to have a reason.  Specifically, they need what we call “Reasonable, Articulable Suspicion of Criminal Activity” to stop you.  If you were speeding, and the police stopped you for speeding, we need to know the last time the radar equipment was certified.  If the equipment is unreliable, we may need to fight the stop.
           If you were stopped for “swerving” it’s important (especially in Louisville) to check and see if the officer had an in-car video system.  The camera may not match the officer’s memory or testimony.  Without evidence of swerving, we may win a motion to Suppress evidence from the stop. 
            That’s the beauty of finding a Constitutional violation in the stop.  If we can convince the judge that the stop was improper, we can get all of the evidence from the stop Suppressed.  That means the prosecution wouldn’t be able to use any of the evidence they got from that Constitutional violation.  Including your BAC.  Without that, we may have a slam dunk Not Guilty verdict coming.

        In short, these are just a few ways we can fight “undefendable” DUIs.  If you are charged with a DUI in Louisville, Elizabethtown, Lexington, Frankfort, or the surrounding areas – call Greg Simms at Murphy & Powell, PLC.  The number is 502.618.4949 and you will receive a free consultation about your case.  Maybe you need a lawyer.  Maybe you don’t.  Let’s find out.


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