HOW THE POLICE MAY HELP ME WIN YOUR DUI
The actions of the police are governed by numerous policies, procedures and laws. Mistakes, misunderstandings, or errors from the initial contact to the final booking may help in winning your DUI/APC.
TIPS OR ANONYMOUS CALLS - for most DUI cases, an officer cannot stop you based solely on an anonymous call. The officer must observe an actual violation of the law before the stop is legal
MISTAKE OF LAW - even if the officer has the best intentions, a stop based on a mistake of law is an illegal stop
WEAVING IN LANE - This observation alone is not a proper basis to stop a driver. No car drives completely straight. For various reasons a driver may drift or weave within the lane
STOPPING WRONG CAR - just as an officer must see an actual violation, the officer must be able to clearly identify the car stopped and identify why it was stopped.
STOPPING FOR A HUNCH OR JUST FELT LIKE IT - rarely will an officer admit this was the reason for a stop. Almost every officer knows this is an illegal stop and any resulting evidence will be excluded
BAD SFST - the roadside gymnastic tests are a tool used to make an arrest decision. The tests have specific rules and observations. If they are not followed, then any conclusion would be improper.
WEATHER - can affect observations of driving and performance on SFST’s. Failure to consider this factor can affect credibility.
MEDICAL-PHYSICAL CONDITIONS - There are numerous medical and physical conditions that can affect a person’s roadside behavior and performance. These issues should be considered and factored into an officers arrest decision. For instance, there is documented court testimony of at least 38 causes for HGN (the condition being tested during the pen/eye test) other that alcohol related. Included are stress, caffeine, flu, strep, measles, hypertension, lack of sleep, fatigue to name a few.
ILLEGAL EXTENSION OF STOP - Once an officer has completed the reason for the initial stop; she should terminate the contact and allow you to leave. For instance, if you are stopped for speeding, you should receive a ticket and be allowed to leave unless there is a clearly articulated reason to extend the detention.
PRIVATE PROPERTY - A DUI arrest is not normally proper if you are on private property
VIDEOS DON’T SUPPORT ARREST REPORT - Many agencies use videos. You have probably watched COPS on TV. When the videos are available, they may not support the arrest decision or may show facts different from what is in the police report.
IMPROPER BLOOD TEST
PROPER REQUEST - there are specific reasons under the law for requesting and taking a blood test. If these are not followed, the test may be excluded.
STATUTORY REQUIREMENTS - there are specific procedures that must be followed in performing a blood test.
LAB MISTAKES - Most often, a blood test is never tested by a human. Many samples are loaded in a machine; it runs overnight and prints out multiple reports in the morning. This is open to many human and machine mistakes.
IMPROPER BREATH TEST
RULES OF BOT - a specific agency and set of rules governs all breath testing in the state of Oklahoma. Failure to follow the rules will result in the exclusion of the test.
CERTIFICATION- the operator of the machine must be certified and the certification must be renewed annually.
CERTIFICATION OF MACHINE - the machine must be certified and periodic maintenance must be performed on it
INTERFERENTS - there are numerous chemical and physical items that can interfere with a proper test which can result in false readings.
MACHINE NOT CALIBRATED - if a machine is not properly calibrated, it will result in false or unverifiable readings.
MACHINE MALFUNCTION - this machine is 1980’s technology. There are numerous parts of the machine that may not be working, yet the machine will still generate a BAC reading
PROCEDURES NOT FOLLOWED - there are specific procedures that must be followed before a proper test can be administered
MIRANDIZE- READ YOUR RIGHTS - although the law will not require a reading of your Miranda rights, if the officer continues to question you after your arrest, many statements may be excludable.
WITNESS APPEAR - If a witness was responsible for your initial stop or other key element, they will also have to appear at key sections of the case.
INCONSISTENT STATEMENTS BY COP - If the cop gives different stories, in his report from later testimony, it brings her credibility into question.
EXPERT WITNESS - we have experts who often can analyze reports, breath test, and video tapes to help determine if the arrest was proper and the facts are correctly presented
ABSORPTIVE STAGE -
It is a medical fact that during the early stages of drinking, you will
show an artificial ‘peak’ while absorbing the alcohol. This means that
during the early stages of absorbing alcohol—before it is fully
absorbed into your system—you will yield an artificially high
Bruce Edge, Tulsa DUI Lawyer
Board Certified in DUI Defense under ABA guidelines