20 Most Common DUI Defense Questions

Below is a list based upon research by the National Highway Traffic Administration:

• Turning with a wide radius
• Straddling the center lane marker
• Almost striking an object or vehicle
• Weaving
• Driving somewhere other than a designated highway
• Swerving
• Slow speeds 10 miles or more under the limit
• Suddenly stopping in traffic without reason
• Following too closely
• Drifting
• Tires in the center or lane marker
• Erratic braking
• Driving into oncoming traffic
• Improper turn signals
• Slowed response to traffic signals
• Turning abruptly
• Accelerating or decelerating rapidly
• Forgetting to turn headlights on at nightr

* Interestingly enough, speed is not included in this list.  It is a common prosecution tactic to argue that speeding is a risk-taking behavior consistent with drunk driving, however, research does not support this assertion.

Unfortunately not.  Under Montana (and all other states) law, you do not have a right to an attorney in a DUI investigation until you are placed under arrest or are a victim of an unmirandized custodial interrogation.  By the time you are arrested and read your Miranda rights, most drivers have already said and done too much.  Often, the officer has decided whether or not to arrest you before asking you to perform roadside tests.  When an officer asks you to perform these tests, they are usually just asking for you to provide them with additional evidence to prove you are under the influence.  Always produce requested documents, give your name and address, and say and do nothing more.

The better question is if you are required to answer that question.  Technically, you are not required to answer any potentially incriminating questions, but officers are allowed to ask standard questions at a traffic stop to confirm or dispel any reasonable suspicions they may have of criminal activity on your part.  The average driver typically admits to having a few beers, typically two is the magic number.  Officers are all too familiar with this response and will most likely treat it with a certain amount of scrutiny.

Officers are trained to note symptoms of intoxication in their report.

– flushed face

– red, watery, glassy, and/or bloodshot eyes

– odor of alcohol on breath

– slurred speech

– fumbling for documents

– inability to understand officer’s questions

– staggering

– swaying

– leaning on objects for support

– combative or argumentative comments, also behavior that is inconsistent with how a reasonable person would act in the same circumstances

– soiled/ rumpled/ disorderly clothing

– disorientation

– lack of divided attention skills

There are a wide range of standardized field sobriety tests an officer might administer if they suspect impairment.  If drugs are not believed to be a factor, you will typically see an officer administer the walk and turn, HGN, one leg stand, and heel to toe.  These are some, but not all, of the tests they may offer.  It should be noted that some of these tests, such as the Romberg and HGN, are inadmissible in court without an expert to testify to them.

Unlike the breath or blood alcohol test, where refusing to submit to a test can result in the suspension of your driver’s license, you are not legally required to take the standardized field sobriety tests.  As mentioned above, you are participating to give the officer additional evidence against yourself, and you will most likely inevitably fail these tests.  A polite refusal may be the most appropriate course of action.

This is the HGN or “horizontal gaze nystagmus” test mentioned above.  The officer attempts to estimate the angle which the eye begins to jerk (“nystagmus”).  If this occurs sooner than 45 degrees, in theory, it indicates excessive blood alcohol concentration.  The smoothness of the eye’s tracking the light is also a factor, as is the jerking when the eye is as far to the side as it can go.

These “indicators” officers look for have been placed under careful scrutiny.  Certain medical conditions can mimic the results they are searching for.  It is not accepted by the medical community and is not considered acceptable testimony in Montana without an HGN expert at trial available to testify.

If you agree to take a blood or a breath test, you risk incriminating yourself further.  If you refuse to take a breath test, under Montana’s implied consent advisory law (61-8-402, MCA), a first refusal will suspend your license for six months and you will be ineligible for a probationary license. A second or subsequent refusal in the last five years will result in a suspension  of one year without the possibility of a probationary license.  Upon a second or subsequent offense, the officer may also apply for a warrant to have your blood seized.  Please note, persons that have a CDL face even more dire consequences than those outlined above.

The fact of refusal can be introduced into evidence, and prosecutors will likely state that under Montana law, a juror is permitted to infer that you were under the influence of alcohol if you refused the test.  The defense is free to rebut this assertion and offer additional arguments into evidence.  The decision is ultimately yours to make whether to submit to a test or not.  Just remember, by refusing a blood or breath alcohol test, especially if you feel you are likely to have a high reading, you are depriving the prosecution of potentially compelling evidence against you.  If however, if you have had one previous DUI conviction or one refusal for a breath test, law enforcement has the power to get a search warrant and compel you to take the test, and they usually do.  In this case, you should always agree to take a breath or blood test.  Because, if  you refuse the test, you will lose your license and still be required to provide the breath or blood sample pursuant to the search warrant.

In Montana, the only chemical tests for purposes of the Implied Consent Advisory are blood and breath tests.  Blood analysis is potentially more accurate as breath machines are susceptible to a number of problems rendering them often unreliable.  However, you are not offered a choice in these tests, it is the officer’s discretion.  You are given the opportunity to pay for your own private blood test.   If you provide a breath test you should always request an independent test.  Make this request once, unequivocally, while you are in the jail immediately after you provide your breath sample.  If the officer fails to immediately make the independent test available it can be the basis for a motion to suppress your breath test results.

An officer is only obligated to give Miranda warnings after he arrests you.  There are a few circumstances where this may not be true, for instance, when the officer had probable cause to arrest and continued to ask incriminating questions, but officers will often delay the arrest long enough for you to make incriminating statements.  The only consequence of a Miranda violation is that the prosecutors may not use your answer to questions asked by police after you are arrested.  Even this limitation can crumble.  Again, the smartest course of action is to say nothing, regardless of whether you have been formally placed under arrest.

The much greater transgression to look for is an officer’s failure to read you the Implied Consent Advisory as it explains the consequences of refusing to submit to a chemical test and your legal obligation to do so.

Montana’s legislature has taken a harder stance on DUIs with the progression of time.  Now, officers have the ability to charge you with driving under the influence and driving with an alcohol concentration of .08 or higher.  Both offenses may be charged if a blood or breath test is taken.  You may only be convicted of one or the other at the time of trial, however.

Under Montana’s implied consent advisory statute, an officer has every right to do this, even though it does seem blatantly unfair.  You do have the opportunity to petition the district court to have your driver’s license reinstated and argue that the officer di not have cause to conduct a blood or breath test.  It is essential you request this hearing within 30 days of your suspension; We do so in every case.    Remember, your license suspension and your DUI charge are two completely separate things.  You are presumed innocent of the DUI charge until proven guilty, but in Montana you are deemed to have given your implied consent to alcohol testing every time you drive.

You can always represent yourself, but the age-old adage of “he who represents himself has a fool for a lawyer” comes to mind.  DUI laws are complicated, the rules of evidence are complicated, criminal procedure is complicated, etc.  That being said, not all lawyers specialize in DUIs so research carefully before you commit to an attorney.  An estate attorney may be as helpful in your criminal proceeding as a pediatrician would be for brain surgery.  A qualified attorney can review your case for defects and present arguments in your defense.

The best way to find a good DUI/DWI attorney is by reputation in the community. Go to the local courthouse and ask people such as bailiffs, clerks, and public defenders.  Who would they go to if they were facing DUI charges?  Check out local reviews.  Whatever you do, be a smart savvy consumer before deciding on your attorney.  When you do meet with an attorney make sure that they have extensive experience in DUI litigation, they have a reputation for going to trial in appropriate circumstances, and the financial terms and representation are clearly defined.

This varies by the reputation and experience of the attorney along with the complexity of your case.  In simple misdemeanor DUIs, attorneys often charge a flat fee for representation.  A felony charge will likely equate to a higher cost, and the fee may be hourly.  In addition, the fee may vary by such other factors as:

1. Is the offense a misdemeanor or felony?
2. If prior convictions are alleged, the procedures for attacking them may add to the cost.
3. The fee may or may not include trial or appeals.
4. Administrative license suspension procedures may also be extra.
5. The lawyer may charge a fixed fee, or he may ask for a retainer in advance — to be applied against hourly charges.
6. Costs such as witness fees, independent blood analysis, service of subpoenas, etc., may be extra.

Whatever the fee quoted, you should ask for a written agreement and make sure you understand all the terms.

There are different penalties based on the DUI charge and whether or not this is a first or subsequent offense.  If you are charged with an aggravated DUI (a DUI with at least double the legal limit) the fines steepen.  You will have to participate in some sort of alcohol treatment program upon conviction and face fines and possible jail time.

Montana, just like most states, increases the punishment in drunk driving cases if certain facts exists.  The most common being if there has been an earlier conviction of the same offense within ten years.  Also, as mentioned before, the aggravated DUI is a sentence enhancement.  You may be facing steeper charges than originally though, because prosecutors can amend the charges up to ten days before your trial, and, if they find a reason to, they can and will do so to persuade you to plead guilt to driving under the influence.

While it is a violation of Montana law to have a BAC of .08 or higher, it is also a defense to that charge if an accused can come forth with some evidence that his or her BAC was under .08 at the time of driving. This is one of the reasons an expert witness is so important in the defense of a DUI charge. Since it takes between 45 minutes and 3 hours for alcohol to be absorbed into the system, an individual’s BAC may continue to rise for some time after he is stopped and arrested. The effect of the affirmative defense is to make the state prove beyond a reasonable doubt your BAC at the time of driving rather than at the time of testing sometime later.

For example, assume that it is an hour or more after the stop when the blood, breath or urine test is given to the suspect. Assume further that the result is .12%. If the suspect has continued to absorb alcohol since s/he was stopped, his or her BAC at the time of driving may have been only .06%. In other words, the test result shows a blood-alcohol concentration above the legal limit — but his actual BAC AT THE TIME OF DRIVING was below the legal limit.

“Mouth alcohol” refers to the existence of any alcohol in the mouth or esophagus. If this is present during a breath test, then the results will be falsely high.

This is because the breath machine assumes that the breath is from the alveolar region of the lungs. For complex physiological reasons, its internal computer multiplies the amount of alcohol by 2100. This multiplier is known as the “partition ratio.” Thus, even a tiny amount of alcohol breathed directly into the machine from the mouth or throat can have a huge impact.

Mouth alcohol can be caused in many ways. Belching, burping, hiccupping or vomiting within 20 minutes of taking the test can bring vapor from alcoholic beverages still in the stomach up into the mouth and throat. Taking a breath freshener can send a machine’s reading way up (such products as Listerine have alcohol in them); cough syrups and other products also contain alcohol. Dental bridges and dental caps can trap alcohol. Blood in the mouth from an injury is yet another source of inaccurate breath test results.

Potential defenses in a given drunk driving case are almost limitless due to the complexities of the offense. Roughly speaking, however, the majority can be broken down into the following areas:

1. Lack of Driving or Actual Physical Control. Intoxication is not enough: the prosecution must also prove that the defendant was driving a vehicle on a way of the state open to the public while under the influence of alcohol or drugs with a BAC of .08 or more. This may be difficult if, as in the case of accidents, there are no witnesses to his or her being the driver of the vehicle.
2. Lack of Reasonable or Articulable Suspicion to Stop or Probable Cause to Arrest. Evidence will be suppressed if the officer did not have legal cause to (a) stop, (b) detain, and (c) arrest. Sobriety roadblocks present particularly complex issues.
3. Miranda. Incriminating statements may be suppressed if warnings were not given at the appropriate time.
4. Deficient “Implied Consent” warnings. If the officer did not advise you of the consequences of refusing to take a chemical test, or gave the prescribed instructions incorrectly, this may affect admissibility of the test results — as well as the license suspension imposed by the motor vehicle department.
5. Subjective Nature of the Offense/Erroneous Nature of the Evidence. Most crimes involve tangible evidence — a quantity of illegal drugs, a body, a gun, a knife, etc. An alleged violation of Operating under the Influence relies almost exclusively on the subjective and unverifiable impressions of the arresting officer. The officer’s observations and opinions as to impairment can be questioned. The circumstances and procedures of the Field Sobriety Tests can also be called into question. The strong tendency of the police officer to reinforce his arrest decision with “facts” conveniently corroborative of that decision can be attacked. Also, DUI arrests translate to thousands of overtime dollars for the involved officers. This fact is relevant to a motive on the part of the officer to err on the side of arrest in close cases and should be brought to the jury’s attention. Furthermore, an alleged violation of having an unlawful BAC, will also rely on test results that are highly questionable. A breath test has one compelling — and erroneous — assumption: That all test subjects are “average.” The only truly “average” person is a woman, Chinese and dead.
6. Blood-alcohol concentration. There exists a wide range of potential problems with blood, breath or urine testing.
7. Inherent Margin of Error. The Intoxilyzer 5000 has an acknowledged 10% margin of error — that is a twenty percent range of error. In other words, on its best day, when the device is calibrated and deemed to be operating properly, it will have a 10% +/- margin of error.
8. Core Body Temperature Variation. The Intoxilyzer 5000 assumes that every test subject has a core body temperature of 37 degrees C. and an expired breath temperature of 34 degrees C. For each degree above this assumed average, test results will be 6.8% higher than the subject’s actual blood alcohol level as measured by the breath reading. This problem tends to be exaggerated by the circadian effect — the later after rising that one is tested, the higher their core body temperature will be. Given that most DUI arrests occur after midnight, this is a substantial factor. State witnesses will be forced to admit they don’t have the slightest idea of what a given test subject’s body temperature might have been at the time of the test.
9. Non-specific and Cumulative Analysis. The Intoxilyzer 8000 is an Infrared Spectrophotometer utilizing a process that measures the methyl “tail” of any hydrocarbon molecule detectable at the 3.39 to 3.48 infrared micron wavelength or “stretch”. The device is NOT specific for ethyl alcohol. There are hundreds of these hydrocarbon compounds on the breath of an alcohol free subject. Not only does the machine not differentiate between these compounds, it reads them cumulatively as ethyl alcohol.
10. Partition Ratio Variation. As mentioned earlier, the Intoxilyzer 8000 assumes a 2100-to-1 ratio in converting alcohol in the breath to alcohol in the blood. As in the case of core body temperature, the machine assumes that all test subjects are “average.” In fact, this ratio varies widely from person to person (and within a person from one moment to another). By way of illustration, if a person blows a .10 test result, and that person’s actual partition ratio at the time of testing is 1500-to-1 rather than the presumed 2100-to-1, their actual blood alcohol level will be closer to .06 — a level below the legal limit.

State “experts” will argue that, given the so called “breath standard” of “1 gram of alcohol per 210 liters of breath,” the partition ratio is “irrelevant” because the state need no longer prove blood alcohol content of “1 gram of alcohol per 100 liters of blood.” This argument can be easily attacked because alcohol on the breath cannot impair a person. Alcohol can only impair a person after it reaches the central nervous system through the blood. Accordingly, with respect to the issue of impairment, breath alcohol is only “relevant” to the extent that it purports to be an indication of alcohol in the blood. Fortunately, while the legislature is free to manipulate the law, they are limited in their ability to manipulate science!

1. Linearity Problems. By it’s very nature, infrared spectrophotometry will have problems with linear validity. In other words, the machine will not be as accurate at extremely low blood alcohol levels as it might be as one approaches the legal limit of .08%.
2. Radio frequency interference. Radio Frequency Interference or “R.F.I.” can result in inaccurate readings. While the Intoxilyzer 5000 purports to have an “R.F.I. Detector” that will void a test subject to radio frequency interference, these detectors are not tested and calibrated at commonly used frequencies nor are they tested on varying horizontal and vertical planes.
3. Testing during the absorptive phase. This is a corollary of the rising alcohol defense. Alcohol cannot effect or impair a person until it reaches the central nervous system — the brain. Alcohol cannot begin the process of reaching the brain until it is absorbed into the bloodstream. The blood, breath or urine test will be unreliable if done while you are still actively absorbing alcohol (it takes 45 minutes to three hours to complete absorption; this can be delayed if food is present in the stomach). Thus, alcohol consumed within forty-five minutes before driving might be reflected in a BAC test performed an hour or so after driving is concluded. But, those “last drinks” could not have effected your driving because they were unabsorbed at the time of driving.
4. Retrograde extrapolation. This refers to the requirement that the BAC be “related back” in time from the time of the test to the time of driving and relates to the absorptive phase/rising alcohol defense referred to in 19(6)(G) above. Again, a number of complex physiological problems are involved here including gender, body weight, what alcoholic beverages were consumed and when. Typically, this argument is not allowed in Montana.
5. Regulation of blood-alcohol testing. The prosecution must prove that the blood or breath test complied with state requirements as to calibration, maintenance, etc., and was in proper operating condition at the time of the test. Through the proper use of discovery, the defense can often unearth “foundational” deficiencies with respect to the state’s chemical evidence. What doesn’t get into evidence can’t hurt you at trial.
6. License suspension hearings. A number of issues can be raised in the context of an administrative hearing before the state’s department of motor vehicles. Most importantly, given the limitations imposed on a defendant’s right to engage in pre-trial discovery, the DMV hearing is an excellent discovery tool and allows the defendant an opportunity to commit state witnesses to a “story” under oath. The DMV Hearing is a civil rather than a criminal proceeding.

1. Immediately request an attorney — Ask officer to note time of my request
2. Refuse to answer ANY questions (Other than name and address).
3. Produce requested documents … be polite even if the officer isn’t.
4. Refuse ALL field sobriety tests.
5. Refuse a breath/blood test (Unless I was sure I was under the legal limit). Read paragraph seven above carefully; it’s a complicated question. 

References: Montana relevant statues:

61-8-402, MCA

61-8-401, MCA

61-8-442, MCA

61-8-714, MCA

61-8-731, MCA

61-8-734, MCA

61-8-465, MCA