DUI cases in Las Vegas aren’t often cut and dry-even if the driver’s blood alcohol concentration is above the legal limit of 0.08.
DUI defense attorneys in Las Vegas highlight all possible defenses to their client’s case. In what follows, we look at the top 20 defenses that DUI lawyers in Nevada use for clients.
1. The Police Officer Didn’t Conduct the Field Sobriety Test Properly
The National Highway Transportation Safety Administration (NHTSA) has specified a certain procedure for administering field sobriety tests. Law enforcement officers are required to explain and administer the test in a specific way and score it accordingly. The NHTSA has produced guidelines for standardized field sobriety tests, which include the following.
- (HGN) Horizontal gaze nystagmus test,
- Walk-and-turn test and
- One-leg stand test.
Most law enforcement officers aren’t trained to administer field sobriety tests.
An experienced defense attorney knows how to take advantage of such situations where police fail to administer the test properly. They will point to the failure to follow procedure as a reason to invalidate the results.
2. There was a Lack of “Probable Cause” for Police Pullover
Nevada law enforcement officers are allowed to arbitrarily stop your vehicle at legally set up checkpoints. However, the police cannot randomly pull over your vehicle only to observe whether you have been drinking. Instead, there must be “probable cause” if the stop is not at a checkpoint.
The officer must observe you driving erratically, or in violation of traffic laws to pull you over. That is what “probable cause” means in the context of DUI.
A DUI defense attorney can, and likely will, challenge the validity of the traffic pullover. They do so using a “motion to suppress” in court, where the attorney will cross-examine the officer who pulled over your car. If the cross-examination offers evidence that there was no probable cause, the attorney will argue such. If the judge is convinced there was a lack of probable cause for stopping the vehicle, the case will likely be dismissed.
3. Residual Mouth Alcohol Contaminates the Breath Testing Machine
In Las Vegas, officers use an Intoxilyzer 5000 for DUI breath testing. The breath testing machine is designed to measure alcohol content in deep lung tissue. It analyzes alveolar air, which reflects your blood alcohol levels and is hence used as a measure to assess your blood alcohol concentration.
However, there is an inherent flaw in the machine’s design and functionality. It cannot differentiate between the air from your mouth and your lungs. Hence, it reads mouth alcohol as alcohol from the lungs which can give an exaggerated blood alcohol concentration reading. This misreading can be as much as 0.10 above your actual blood alcohol concentration.
Some of the factors (other than alcohol consumption) which can cause mouth alcohol and lead to falsely high breath test results include the following.
- Recent use of mouthwash, breath spray, cough syrup, and cold medications,
- Belching, or burping right before the breath test,
- Food remains in your mouth, and
Periodontal problems or fixtures in your mouth.
4. Most Field Sobriety Tests Aren’t Standardized and Hence Unreliable
As per the federal government regulations, there are only three field sobriety tests that are standardized. However, it is common for Las Vegas police officers to ask drivers to perform various other non-standardized field sobriety tests. A few such tests include the hand pat test, touching your fingertips using your thumbs, and keeping your eyes closed for your best estimate of 30 seconds.
Although Las Vegas police widely use these non-standardized tests to assess driver impairment, there is no standardized procedure for administering or scoring these tests. Since these tests are not standardized, a DUI defense attorney can use the flaws in testing procedures to challenge DUI charges and defend their client in criminal court.
5. Field Sobriety Tests Are Highly Inaccurate
Field sobriety tests, including the three standardized ones, have a high error rate in accurately measuring DUI impairment. Even the approved tests have a high error rate. According to NHTSA, the one-leg stand has an error rate of 35%, the walk and turn test has an error rate of 32%, and the horizontal gaze nystagmus test has an error rate of 23%.
Due to these high margins of error, those who are charged in part due to the FSTs may challenge them.
6. Factors Other Than Alcohol Intoxication Can Affect a Driver’s Performance on the Field Sobriety Test
When a driver is drunk, they usually struggle or stumble on a field sobriety test.
However, it is possible that other non-alcohol-related factors can affect one’s performance on these tests. Some of the factors include:
- Being anxious, intimidated, or nervous,
- Wearing improper footwear such as hard-soled shoes, heels, or boots,
- Weather conditions such as rainfall, intense heat or cold conditions,
- A slippery or uneven surface where the test was administered,
- Roadside distractions, including traffic and flashing lights,
- Physical limitations such as poor coordination due to a medical condition, being overweight, or being elderly.
An experienced DUI attorney can identify other possible explanations for a driver’s poor performance on the test and use these defenses to fight a DUI charge in court.
7. The Police Aren’t Aware of the Driver’s Sobriety Baseline
People vary in their natural ability to comprehend instructions, follow them, and perform such exercises. For those who struggle, there isn’t a significant difference in performance on these tests, they are sober or under the influence of alcohol or drugs.
A defense attorney may argue the defendant’s lackluster performance is due to this diminished capacity to take the test. Knowing this, the attorney would argue that the police failed to know and thus incorrectly marked the test as a failure, even though the defendant was sober.
8. Factors Other Than Alcohol Intoxication Explain Driver’s Driving Incompetence
Most DUI cases in Las Vegas start when an officer observes a problem with an individual’s driving. These problems include a driver changing lanes too often, driving too fast or too slowly, and swerving. These driving incompetencies are often attributed to intoxication.
However, that’s not always true. Several factors, other than alcohol or drug intoxication, can explain a driver’s incompetent driving behavior. These factors include:
- Using a cell phone while driving,
- Applying makeup while driving,
- Distracted driving due to other passengers in the vehicle,
- Driving while reading a map or
- Driving when lost and looking for the way.
9. The Officer Has Insufficient Evidence to Arrest the Driver
After the initial DUI investigation, police are not legally allowed to arrest a driver without probable cause (see above). This means that keeping all evidence in mind, the police officer must believe that the driver was driving under the influence.
If an officer makes a DUI arrest off one failed test, or other minimal evidence, an expert lawyer will challenge this in court.
If the judge is convinced, they may regard the arrest invalid and may reduce the charge or even dismiss the case.
10. The Police Didn’t Read the Driver’s Miranda Rights
The law enforcement officer in Las Vegas is required to read the driver’s Miranda Rights following the arrest as they continue to interrogate the suspect.
Often police officers continue to ask interrogative questions prior to the arrest. In such instances, there is no legal requirement to read Miranda Rights to the driver before the arrest.
However, there is a possibility that interrogation continues following the suspect’s arrest, even without Miranda Rights.
In such instances, a DUI defense attorney can challenge the law enforcement officer and get the post-arrest statements of the suspect excluded from evidence.
11. Breath Odor Doesn’t Reflect the Level of Intoxication and Impairment
In several DUI reports, the law enforcement officers claim that there was an “odor of alcohol from the suspect’s breath,” which served as evidence for drunk driving. However, studies indicate that it is impossible to detect an individual’s impairment from alcohol simply through the odor of alcohol on their breath. In fact, the chemical in alcohol that causes intoxication is an odorless substance. Only when it is mixed with other substances like gin or beer, does it produce the typical smell associated with alcohol.
Certain beverages, like beer, have strong odors, whereas others have much weaker odors. For example, someone who consumes beer will have a much stronger breath odor than someone who consumes vodka.
Hence, even if a suspect’s breath smells of alcohol, it doesn’t indicate their level of intoxication.
12. Certain Medical Conditions Can Contaminate the DUI Breath Testing Equipment
As mentioned earlier, the DUI breath testing equipment used in Las Vegas is the Intoxilyzer 5000, which is designed to measure alcohol content from deep lung tissue. It is due to this reason that police officers must observe the suspect for at least 15 minutes before they administer the breath test.
During this observation period, the police officer must ensure that the suspect doesn’t eat, drink, or burp, as that can cause problems with the equipment’s readings.
However, if the suspect suffers from certain medical conditions such as acid reflux or GERD, it can cause the residual alcohol to be present in their mouth. This residual mouth alcohol can contaminate the breath sample, and the machine can show a falsely high blood alcohol concentration.
If you’re a DUI suspect who suffers from medical conditions like acid reflux or GERD and took the breath test, it’s important to tell your attorney about it. Sharing such information allows for a more thorough defense, as there’s a possibility that your actual BAC was much lower than what the police reports indicate.
13. The Blood Alcohol Concentration Results Are Inconsistent with Other Evidence
If there is an inconsistency in the blood alcohol concentration results and other evidence, it suggests an error in the testing process.
For example, if the driver passes all field sobriety tests and has no other indicators of intoxication, yet they are breathalyzed at 0.10, that may suggest an inconsistency of the evidence or testing procedure.
14. The Blood Sample is Contaminated
Once the police draw a blood sample, it can be contaminated at any step of the testing procedure. This includes collection, storage, and processing.
The vial used for blood collection contains specific amounts of anticoagulants and preservatives. Otherwise, the sample may ferment and produce its own alcohol, which results in a skewed result.
In drunk driving cases involving a blood test, the driver can obtain a portion of the blood sample and have it independently retested by a facility.
If the results from both the preliminary testing facility and the independent re-tester are different, blood sample contamination is one explanation that casts doubt on the driver’s impaired status.
15. A Low-Carb Diet Can Falsely Exaggerate BAC on the Breath Test
Those who consume a high-protein, low carb diet burns excess body fat through a process known as ketosis. As a result of ketosis, the body releases isopropyl, which is an organic compound related to the hydroxyl group. During DUI breath tests, excess isopropyl in the body can be mistaken as alcohol.
Those who are on the “Keto” diet have registered a positive blood alcohol concentration on breathalyzers in the past.
If you’re consuming a low or no-carb diet, and your blood alcohol concentration on a breath test is surprisingly high, tell your attorney, as it indicates that factors other than alcohol consumption led to higher BAC readings.
16. The Suspect Was Mentally Alert
According to toxicology experts, the first signs of an individual’s impairment are cognitive and not physical. Hence, an intoxicated person is more likely to experience confusion, slower thought processing, and difficulty speaking or maintaining balance.
If a suspect was mentally alert during the investigation, an attorney can claim a failure to be under the influence.
17. Speeding Alone Is Not Enough to be Considered a Sign of Drunk Driving
Many DUI suspects are pulled over due to excessive speeding. However, speeding alone is normally insufficient to be considered a sign of drunk driving.
There are other signs of impaired driving which include taking wide turns or weaving. Moreover, the NHTSA has compiled a list of various driving behaviors observed when a driver is intoxicated, and speeding is not on that list.
Hence, there is no concrete evidence of a meaningful relationship between speeding and impaired driving. Moreover, there is a possibility that the opposite might be true. If a driver is speeding, it’s likely that he/she is more alert and can guide the vehicle properly.
18. Factors Other Than Alcohol Consumption May Explain a Driver’s Appearance of Intoxication
It is common for law enforcement officers to use objective symptoms of intoxication as evidence against a driver. Some of these symptoms included unsteady walk, flushed face, bloodshot eyes, and slurred speech. While these are common symptoms associated with intoxication, factors other than alcohol consumption can also lead to these symptoms.
For example, an individual may have red eyes due to allergies or eye strain. Similarly, nervousness and anxiety can result in slurred speech or a flushed face.
Experienced DUI defense lawyers can prove a variety of reasons to the court, other than alcohol intoxication, which the police believe to be the objective symptoms of intoxication.
19. There is an Inherent Error Rate for Both DUI Breath and Blood Test
In case the breath testing equipment is fully functional, and the police administered the test correctly, there is still an inherent error rate in both DUI breath and blood tests. According to toxicology experts, the inherent error rate in DUI breath and blood tests is +/- .01 to .02 of blood alcohol concentration.
The concern is more significant DUI cases if the suspect has a breath reading of 0.08. Since it’s right at the legal limit of 0.08, if we factor in the inherent error, it may have been below the legal limit. In addition, evidentiary blood and breath tests are typically administered at least one hour after the person was driving. There is a possibility that the driver may have rising blood alcohol which can elevate blood alcohol concentration to or above the levels it was at when the driver was pulled over.
20. You May Find Witnesses to Support Your Sobriety
There are various defenses that you can use to support your case and reduce or dismiss your DUI charge. One of these is to have witnesses who can vouch for your sobriety. These witnesses could include a passenger or driver in any vehicle with whom you’ve interacted shortly before the arrest, or any individual you interacted with prior to your arrest. While the police may suspect you of drunk driving based on your appearance, the witness may have a different viewpoint which can help defend your case. If a witness can testify that you appeared sober, or that you were acting normally, and your driving wasn’t impaired, it can be used as an effective defense for your case.