Your DUI Attorney is "Asleep at the Wheel" - 25 Ways to Lose WINNABLE DUI Trials
You have just set yourself apart from nearly every other person charged with DUI in Iowa. The fact that you are seeking this information tells me you are serious about choosing the right lawyer to defend your DUI charge. I work for clients who want to win.
IntroductionThere is one certainty in every Iowa DUI trial . . . the accused drinking driver will lose EVERY issue his or her lawyer fails to raise and challenge!
My purpose in writing this guide is not to identify every possible defense that can be raised in a DUI case in Iowa. To be sure, the administrative rules and law in this area are constantly changing. Also, Iowa courts regularly issue new opinions on DUI issues. Instead, my goal here is to provide common examples of factual, legal and technical challenges that can be pursued by a skilled, trained and experienced DUI lawyer in typical cases. Some challenges lead directly to a dismissal, or the suppression of evidence at trial, while others seriously undermine the weight that a jury will give to admissible evidence.
Traffic Stops1. Weaving Within the Lane. The observation of a vehicle weaving within its own lane does not always give the officer authority to stop and detain for a DUI investigation. Instead, there must be erratic driving, i.e., changing speeds, veering left and right at sharp angles, constantly going back and forth from left to right over a considerable distance.
2. Changing Lanes Without Signaling. It is not always necessary to use a turn signal before changing into another lane of traffic in the same direction if it is done in a safe and unremarkable manner. Often, law enforcement will use this as grounds to stop the driver. If there are no other vehicles in the vicinity and the patrol cruiser is several car lengths to the rear in a position that can't reasonably be adversely affected by the failure to signal, as is typically the case late at night, then the basis for the stop may not stand up to the court's scrutiny.
3. Touching the Center Line. Many officers will cite a driver for crossing the center line when key evidence shows the contrary, i.e., that the vehicle's tire only touched the line. Briefly touching the center or fog line may not provide the officer with reasonable suspicion to stop.
4. Speeding. Driving in excess of the posted speed limit allows the officer to stop the vehicle, but it is not necessarily a clue of impaired driving. Often, the state will argue at trial that speeding is evidence that the driver was "under the influence" of alcohol to support a conviction. Many attorneys fail to effectively cross-examine the officer to show that speeding is not one of the "vehicle in motion" clues the officer is trained to observe that give the officer probable cause to believe that the driver is operating while under the influence or with a BAC over .08.
Field Sobriety Tests5. Test Conditions. Field sobriety tests should be administered under certain conditions. The HGN test should be administered from a standing, not seated position, which means that it should be done outside the patrol cruiser. The Walk and Turn and One Leg Stand tests require dry, hard, level and non-slippery surfaces. The original research indicates individuals over 65 years of age and those with back, leg and inner ear problems had difficulty performing the last two tests. If the tests are not administered in the prescribed, standardized manner, then the validity of the results is compromised.
6. SFSTs do not Measure Driving Impairment. In the Final Report of the Validation of SFST Battery at BACs Below .10 Percent, the study's authors, who happened to be among those who developed the standardized field sobriety test battery, concluded that these tests do not directly measure driving impairment. In other words, driving impairment cannot be measured at the roadside! This must be brought up at trial when cross examining the officer in order to undermine the state's argument that the inability to pass SFSTs means that the person is unfit to safely drive a vehicle.
7. Error Rates. Even the most "reliable" field sobriety test has a significant error rate. Officers will typically testify that their training and experience tells them that 77 percent of drivers who show four or more clues of impairment during HGN have BACs of .08 or above. This means that 23 percent of the time a person showing four or more clues is under .08! The error rates for Walk and Turn (32%) and One Leg Stand (35%) are even higher at the particular decision points for those tests. Consider whether a "failure" to perform these coordination exercises amounts to proof of impairment beyond a reasonable doubt.
Implied Consent8. No Reasonable Grounds. In order to invoke implied consent, the officer must have among other things reasonable grounds to believe the person is operating a motor vehicle with a BAC over .08 or while under the influence of alcohol. The basis for reasonable grounds should not be ignored at either the DOT appeal or district court level.
9. PBT Calibration. Officers will typically rely on a preliminary breath test (PBT) result exceeding .08 to invoke implied consent. These screening devices for alcohol require frequent accuracy checks and regular calibration. Whether or not the particular PBT involved in a traffic stop was working properly can only be determined by a careful review of the log maintained by law enforcement. A PBT that has not been maintained in accordance with the administrative rules cannot be used as a prerequisite for implied consent.
10. Arrest. Sometimes an officer will certify to the Iowa Department of Transportation on the Request and Notice Form that the driver was placed under arrest for DUI before implied consent is invoked. Arrest is determined on a case-by-case basis. In certain instances, the officer will merely detain the driver for further investigation. Detention is not the same as an arrest. It cannot be used as a prerequisite for implied consent.
11. Signature Confirming Consent. A driver is required to sign the Request and Notice Form indicating whether he or she consents to chemical testing. There are occasions where the officer does not obtain the signature until after obtaining the breath sample for testing on the DataMaster DMT. Unless a request to preserve evidence of the timing of the signature is made very early in the case, the attorney may never know whether the driver signed after the test result.
12. Right to Consult with Family or Attorney. Iowa provides a limited right to speak with a family member or an attorney. If this right is violated by law enforcement, then the chemical test result or refusal can be suppressed from evidence at trial along with certain non-spontaneous statements made by the driver.
The Iowa DOT also accepts this argument. Even if it was not raised during the appeal, the DOT will rescind and remove the revocation from the record upon receipt of the suppression ruling.
Breath Testing13. Deprivation Period. Before submitting to breath testing, the driver cannot eat, drink or place foreign objects in the mouth within a 15-minute period before submitting a breath sample. Sometimes a driver will drink water while using the restroom before breath testing. Or the driver will have chewing tobacco in the mouth that goes undetected by law enforcement until it appears in the mouthpiece. In these instances, a new deprivation period must be observed before testing, which means the officer must wait an additional 15 minutes before requesting a breath sample. Failure to follow this rule may result in the suppression of the test result.
14. Changing Mouthpiece. If the officer restarts the DataMaster DMT because of an status message, then a new mouthpiece is required. If it is not replaced, then there is a chance that residual alcohol trapped in the mouthpiece could affect the test protocol and the subject sample.
15. Temperature. The equilibration between ethanol and water vapor in the lungs varies as a function of temperature. For each degree Centigrade increase over 34 (the temperature of human breath assumed by the state), the breath alcohol concentration will increase by 6.8 percent. Most studies and experiments reflect actual breath temperatures greater than 34 degrees Centigrade by as much as a degree or more. This is critically important in low breath test cases.
16. Breath Volume. The longer a subject blows into the DataMaster DMT, the higher the test result will be. Why? Because the deep lung air is heated more than air near the top. Because the partition ratio changes as the person blows into the device, a true BrAC of .075 may produce of reading of .068 after 5 seconds, but .083 after 9 seconds due to the decrease in the ratio over time. That is the difference between losing your license for a test above .08 or being convicted of the per se DUI offense.
17. Biological Variability. Even assuming the DataMaster DMT device is properly calibrated and working perfectly at the time a duplicate breath sample is analyzed, a person with a single test result of .080 could theoretically have a second test between .060 and .100 because of a reported .020 difference due to biological variability alone . . . that is a ?25 percent uncertainty in the breath test result.
18. Certification Records. The Division of Criminal Investigation maintains online certification records of every law enforcement officer and DataMaster DMT currently in service. These records reveal whether or not an officer is certified to invoke implied consent and request a chemical sample (breath or urine) for testing. Also, the records may indicate issues with the device in the days leading up or following the breath test.
Blood Testing19. Inverting Blood Samples. When blood is drawn for forensic chemical testing, the medical technician must slowly invert the sample several times back and forth in order to thoroughly mix the preservative and anticoagulant powder and stabilize the specimen. The failure to invert may create the conditions for naturally occurring yeasts and microbes to convert blood sugar into ethanol producing a falsely elevated result. The devices used by the state to determine blood alcohol concentration cannot distinguish the alcohol produced through this fermentation from that found in the sample when first drawn.
20. Converting Serum/Plasma to Whole Blood. Serum or plasma blood testing in a clinical setting such as a hospital is not reported the same way as whole blood tested at the DCI criminalistics laboratory. It must be converted to whole blood BAC to be admissible at trial. The result will also be lower than the reported value.
21. Certification by a Physician. In cases involving an accident where the driver receives treatment for injuries at the hospital, Iowa law allows a physician to certify that the person is unable to consent to chemical testing. These situations must be closely scrutinized to determined whether the driver was, in fact, unable to consent and the document meets the legal requirements for certification.
Urine Testing22. Urine Testing Disfavored. Most states do not permit urine testing for alcohol because accurate results are the exception rather than the rule. The prevailing view of the scientific community is that urine testing should not be used to determine alcohol concentration unless under strictly controlled conditions. Iowa is one of a handful of states that permits urine testing, but only as a last resort when breath or blood testing is not available.
24. Sample Collection Issues. If the officer obtains a "first void" urine sample from the driver without first having the driver empty his bladder, then the sample will contain alcohol that was in the blood at some unknown time. A proper sample should be taken from the driver 15 minutes or more after he has emptied his bladder. How can the state really know if the bladder was initially emptied so that the pooling effect is eliminated beyond a reasonable doubt?
25. Inability to Urinate a Refusal? Some drivers cannot urinate on command or in the presence of another person, particularly law enforcement. The State treats the inability to provide a urine sample as a refusal. The jury will be instructed that it can consider the refusal in determining whether the driver is "under the influence." These refusals must be challenged.