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15 Commonly Used DWI Defenses

1. ILLEGAL STOP – a Missouri DWI Enforcement officer cannot stop a car without having a reasonable and articulate basis to believe that a law has been violated or he can articulate unusual operation of the motor vehicle. Therefore, if the Missouri DWI enforcement officer stops the car because he saw the driver walk out of a bar and get into the car, or he received an anonymous tip that the driver was drunk, or he recognized the driver as they passed and knows that the driver is a heavy drinker, Missouri DWI charge may be dismissed for violation of the driver’s rights.

2. FIELD SOBRIETY TEST ADMINISTERED BY THE OFFICER ARE NOT RELIABLE EVIDENCE OF INTOXICATION– in healthy individuals, the one-leg stand test is only 65% accurate, and the walk-and-turn test is only 68% accurate in determining if a person is under the influence. Those persons with injuries, medical conditions, 50 pounds or greater overweight, and 65 years or older cannot be validly judged by these tests. Furthermore, there are no studies Missouri DWI caselaw that validate the reliability of the finger to nose, alphabet, counting, or other field sobriety tests. The prosecutor must prove the blood or breath alcohol at the time of driving. Recent consumption of alcohol just prior to driving will cause the test results to be higher than what the true level was when the person was operating the automobile.

3. BREATH TESTING IS INACCURATE – one breath test does not tell someone whether you are guilty of violating Missouri DWI law. The alcohol level in a persons blood stream raises and lowers over time. Therefore, a person who consumes a beer and then, as soon as the breath alcohol dissipates, immediately takes a breath test will have a lower blood alcohol content (BAC) than someone who consumes the same beer and takes the test a half hour or full hour later. Missouri DWI Law requires that the person who is charged with a Missouri DWI be intoxicated at the time they were driving. But breath testing is not administered at the scene. It’s administered after time has passed, typically an hour or more. Therefore, if your breath test is close to the .08 legal limit, you may have a defense to your Missouri DWI charge that the breath test is inaccurate.

4. VIDEOS OR DISPATCH TAPES – All Missouri State Troopers, and many other police departments have video cameras mounted in their patrol vehicles. These videos, along with videos from booking rooms, testing rooms, and other sources can be the best defense to some Missouri DWI charges. These videos sometimes show that the field sobriety tests administered to the person charged with violating Missouri DWI law are not as bad as the officer interpreted them. The persons speech is not muttered, slurred, or incoherent, their balance is not swaying or stumbling, and their attitude is not combative or uncooperative. These are areas where a qualified attorney can show that the arresting officer has a bias towards the arrestee and is not accurately testifying about the arrestee’s signs of intoxication. Most stops of vehicles are recorded on dispatch tapes, as well as recording police communications regarding an arrest of an individual. Failure to preserve such tapes upon request can cause all evidence which could have been recorded to be suppressed.

5. BLOOD TEST INACCURATE – The admissibility of blood testing in a Missouri DWI case is dependent upon the procedures that were followed in the taking of the sample. Often times, medical facilities that take these samples fail to follow proper protocol. This subjects these samples to a Motion to Exclude. Hospital tests have been shown to overestimate a blood sample by as much as 25% in healthy, uninjured individuals, and are not statistically reliable in severely injured persons. When hospital staff use lactate ringers during the treatment of a patient, the hospital blood serum results will report falsely elevated, and therefore invalid, readings.

6. BREATH TEST OPERATOR UNLICENSED – A person who operates a breath testing machine pursuant to a suspected violation of Missouri DWI law must possess a valid operator’s license. There have been known cases where the operator’s license had expired because he had not submitted the proper paperwork to renew it and the case has been dismissed or won at trial.

7. INDEPENDENT WITNESSES – oftentimes, witnesses that are not listed in the Missouri DWI arrest report can be found to testify about the defendant’s signs of intoxication. These witness, quite often, do not have the same recollection that the officer does. These witnesses may be bartenders, hospital personnel, wait staff, other customers at eating or drinking establishments, and others.

8. FAILURE TO MIRANDIZE OR READ THE IMPLIED CONSENT WARNING – prosecutors may not use the statements of a defendant in custody for violation of Missouri DWI law when the police have failed to properly give the Miranda Warnings. Furthermore, Missouri DWI law requires a police officer to read the implied consent law to a person before the person submits to the breath test.

9. THE OFFICER’S PRIOR RECORD AND STATEMENTS – a police officer’s previous disciplinary record can be used to challenge the officer’s credibility; especially if the officer has been disciplined for lying, misrepresentation, or violating the rights of a suspect. Furthermore, if the officer has testified previously in a Missouri DWI case about the reliability of tests or how to administer them that information can be used to challenge his skills at administering field sobriety tests if he answers differently in this trial. Also, if the officer misled the driver about the consequences of refusing to submit to tests under Missouri DWI law then the results can be thrown out at the administrative hearing and at the criminal trial.

10.FAILURE TO CONDUCT OBSERVATION PERIOD – Missouri DWI law requires that a driver be observed continuously for a minimum twenty minutes prior to a Missouri DWI breath test in order for the results to be considered admissible and valid. Some officers in Missouri DWI cases try to manipulate this twenty minute period by doing other things, such as leaving him in the booking room and letting another officer begin processing him, entering information into the breath machine, completing forms, or making phone calls. If the officer in your Missouri DWI case was otherwise distracted and did not actually observe you during the twenty minute period the test results may be thrown out of court.

11.MEDICAL AND HEALTH PROBLEMS — Medical problems with nearly any part of the body can, and oftentimes does, affect the results of Missouri DWI field sobriety tests and possibly breath tests. If these conditions do interfere with the tests then the validity of the field sobriety test can be challenged in your Missouri DWI case as being unreliable.

12.BAD WEATHER – Weather reports establishing high winds, low visibility, and other conditions are available to explain poor driving or poor balance in any Missouri DWI case.

13.INTERFERING SUBSTANCES – many items contain forms of alcohol which may cause false Missouri DWI breath test results, such as asthma spray, cough drops, paints, fingernail polish.

14.FAILURE TO RECORD CERTIFICATION TESTS – the failure to include the value of the simulator solution used to test Missouri DWI breath machines will cause the breath test results to be inadmissible in court against the driver.

15. FAILURE TO PROVIDE A SPEEDY TRIAL- the State must provide a trial within specified time periods. If they don’t, the case must be dismissed.

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