How To Win A Drunk Driving Case:
A Primer For The Layperson

by Andrew Mishlove, Esq.

THE SIX KEY FACTORS IN A DRUNK DRIVING CASE

Most people, including some lawyers who should know better, believe that if you are stopped for drunk driving and fail a breath or blood test, that you don't have a chance to win. Certainly, drunk driving cases are difficult to win. In my twenty years as a trial lawyer I have fought and won many of them (and lost a few, too), including cases with very high blood or breath test results. Winning a drunk driving case requires a careful investigation of all of the facts, not just the facts that the police have reported. In order to analyze a case, I have developed what I call The Six Key Factors in a drunk driving case. These are the factors that I consider in fighting a drunk driving case in the only way that a drunk driving case can be effectively fought: the jury trial.

These factors cover the actual facts, not just the facts in the police reports. When a policeman makes a drunk driving (or any) arrest, he is required to fill out various reports detailing his observations. In drunk driving cases these forms may be fill-in-the-blank, or they may be in the form of a narrative. In almost all cases, the officers focus a few facts and ignore the rest. For example, they may note that you stumbled in the "heel-to-toe" test, but they will fail to mention that you had no other difficulties in your balance. So, winning a drunk driving case requires a careful review of The Six Factors.

Factor One: Did The Police Follow The Rules?

Whether or not you are guilty may be one of the least important factors in your case. That's because of the exclusionary rule, a rule of law designed to protect the most important and precious of our civil liberties: the right to be free from unreasonable stops, seizure, search and arrest. In a free society the police must operate under strict rules that prevent them from stopping and arresting you without a proper legal basis. Too often, the police act on a mere hunch or suspicion, without adequate evidence. When that happens, the evidence they get as a result of their unlawful behavior may not be used in court, even if it shows that you are guilty.

So, the first thing a good lawyer will do is a careful analysis of all of the facts that went into the police officer's decision to stop, question, test and arrest you. A good lawyer will always take any opportunity to challenge the legality of the police decision to pull you over, make you do field sobriety tests, arrest you or make you take a chemical test. Do not assume that just because you "flunked" a breath test, that the test result can be used against you; because, a good lawyer may be able to keep it out.

Factor Two: The Story of Your Day.

Obviously, whether or not you are intoxicated depends on whether or not you have consumed an excessive amount of alcohol. Therefore, the story of your day is very important, because it includes your alcohol consumption. The details are important because the truth often lies in the smallest fact.

For example, I once had a client who was arrested coming from his wife's wake. He had crossed the centerline slightly while driving on a curve in a two-lane country road, and was stopped. The police report contained the usual recitations: bloodshot eyes, slurred speech, poor balance, etc. The story of my client's day became critical. He had been to the cemetery, and then to a memorial reception for his late wife. He had eaten and drunk wine at the reception with his friends and relatives. These people were available to testify that at no time did he appear to be intoxicated during the entire day and evening. They were able to corroborate his moderate alcohol consumption, food intake and sobriety. My client not only became credible, but he became human and sympathetic. Too often, decent people are portrayed in the courtroom as anti-social monsters, and a humanizing touch can be very helpful to level the playing field. Obviously, if you were at a drunken biker's party, you may not want to advertise those facts. But, even if you were socializing at a tavern, the people you were with, including the bartender, can be important witnesses.

Chemical tests of breath and blood can be flawed and unreliable. So if possible, it is important to locate any credible witnesses to document your actual alcohol consumption. Be aware that this may be possible using charge card records, as well.

Likewise, alcohol hits harder on an empty stomach. So if possible, it is important to document what you had to eat.

Factor Three: The Driving.

Police will usually try to report in detail on the driving violations that led to the initial stop of your vehicle. The prosecutor will argue that these violations are evidence of the impaired judgment and coordination of intoxication. Of course, that it often not the case. The police will often stop cars for slight or invalid cause.

Why were you stopped? What was it about your driving or car that drew the attention of the police? Was it a burnt out license plate light? Was it speeding, three miles per hour over the limit? Was it swerving and severe unsafe lane deviations? Was there an accident? Many times, people are arrested for drunk driving, when the initial stop was due to some factor unrelated to alcohol consumption. Often times a stop occurs on some pretext, which has nothing to do with impaired driving. Unfortunately, it is undeniably true that racial minorities are stopped far more often on such pretexts (Emerge magazine has called this "DWB," or driving while black). It can also be said that an old rusty car is a far more likely target of an unreasonable stop (this might be called "DWB," or driving while broke).

Some driving may, at first blush, appear to be erratic, when in fact it is not. For example, police like to stop people for "weaving within the lane." What does that mean? As long as you stay in your lane, you are not weaving, right? Another, similar pretext is for an unduly wide exit to a turn. In many situations, however, a wide exit from a turn is the only proper or safe maneuver, even if it crosses traffic lanes.

Every person who drives a car knows that most people drive about five miles per hour over the speed limit. Low level speeding, or a similar traffic violation, may give the police the right to stop you, but it is definitely not evidence of intoxication.

Similarly, if you were in an accident, was it your fault? It is critical to show that whatever driving errors you made were not the result of alcohol-related impairment.