3 Strategies To Attack a Pennsylvania DUI Prosecution
Our law firm frequently defends drunk driving cases in Philadelphia and its surrounding counties of Bucks, Chester, Delaware, and Montgomery. In these situations, the prosecution will offer a variety of arguments and evidence in an attempt to meet their burden of proof beyond a reasonable doubt. As I have discussed in previous articles, a DUI charge requires the prosecution to establish control of the vehicle and impairment at the time of driving above the legal limit.
Many DUI cases involve blood or breathalyzer evidence, but prior to proceeding to trial the defense has the opportunity to file motions to suppress evidence focused on reasonable suspicion and/or probable cause to stop the car along with probable cause to arrest the individual for suspicion of DUI.
Every DUI case is different but our firm has 3 areas which your attorney should attack during a DUI prosecution. These 3 arguments are explained in further detail in my free book – 5 Ways to Fight & Win Your Pennsylvania DUI Case but here is a condensed version:
1.No probable cause for the arrest on suspicion of DUI
To establish probable cause, the assistant district attorney must rely on the officer’s observations of the person’s driving, his appearance, and possible performance of field sobriety tests. The officer’s observations and field sobriety results are open to attack, especially the following areas:
- Odor of alcohol—the odor of alcohol does not mean much because alcohol itself is odorless. An police officer, therefore, can’t determine how much alcohol you’ve consumed based on odor.
- Blood shot eyes—many factors can cause blood shot eyes, including fatigue, allergies, smog, and even contact lenses. While Philadelphia no longer allows smoking in bars, bar smoke is a common eye irritant. There is no correlation between red, glassy eyes and alcohol concentration.
- Flushed face or skin—similar to eyes, flushed face or skin does not correlate to alcohol consumption. Frequently, a motorist who is stopped by a police officer will have a quick flow of blood to the face, which causes a reddish appearance. Additionally, a person can have a normally red complexion, sunburn, or use excessive make-up.
- Slurred speech—while officers frequently claim that a person’s speech was slurred, they are normally not familiar with the person and have not met him or her before.
2.False Positive Breathalyzers (BAC over limit of .08)
Our law firm, based in Philadelphia, recommends that a criminal defense lawyer attack a breathalyzer in 4 different ways:
- Maintenance and calibration of the machine
- Administration of the test
- Accuracy of breath measurement technique
- Physical attributes of the person tested
Every person is different but the following can negatively affect breath test results:
- Mouth contaminants
- Blowing too hard
- Abnormal body temperature
- Abnormal red blood count
- Certain medical conditions (Gastroesophagial reflux disease (GERD), heartburn, diabetes, and liver disease)
- Diet
- Inhalation of airbag dust (after it deployes
3.Inaccurate Blood test Results (Lactic Acid, Improper Preservation and refrigeration of sample)
Frequently blood is drawn at a hospital and forensic test kits are not always available. In these situations, alcohol may be used to sterilize the injection area prior to drawing the blood. Once the sample is drawn, it isn’t enough to label the vial and place it into an evidence envelope. The person drawing the blood must mix it with anti-coagulant and preservative.
After the blood is drawn, the prosecution must also establish a proper chain of custody to show that the sample wasn’t tampered with and it actually belongs to the individual. If the sample is not stored correctly, it leaves open the possibility for the defense to argue a fermentation defense and/or a lack of sufficient preservative (sodium fluoride and potassium oxalate coagulant).
In addition to a lack of preservation and chain of custody, the defense should also explore the possibility that blood tests were inaccurate due to the presence of lactic acid. Lactic acid can enter a person’s blood stream due to muscle organ injury or from fluids introduced through an IV. High levels of lactic acid can falsely elevate alcohol levels.
A DUI can happen to anyone and at any time! Understand your rights
Drunk driving is an offense in Pennsylvania which can happen to anyone. The news is filled with stories from every station in life. If you are charged with drunk driving, call our office but please take some time to review all of the materials on our website.
