Damico & Stockstill, Attorneys at Law

Illegal or improper police activity can provide grounds for DWI challenge, P.2

In our previous post, we began discussing the topic of illegal police behavior, and how this can provide various grounds for challenging DWI charges. We already noted the possibility of challenging such charges based on an improper stop or arrest. DWI challenges can also be based on an improper blood or breath test.

Blood testing is governed by statutory and procedural requirements. Failure to follow these can provide grounds for DWI defense. In addition, the accuracy of blood testing may be a potential basis for challenging charges. While blood testing is sometimes assumed to be definitive evidence on the issue of intoxication, the accuracy depends largely on the procedures used by the lab. Further, labs may overstate their accuracy.

Challenging a DWI charge on the basis of a breath test is a common approach. Various rules govern the use of these devices, and both the machine and the operator must be certified for its use to be valid. In addition to potential machine malfunctions, the machine itself may not be properly calibrated. Then there are procedural rules police must follow. All in all, there are many ways to call the accuracy of breath test results into question. Another issue is failure to take into account the "absorptive stage" in alcohol consumption, which can produce artificially high blood alcohol content within a certain window of time.

A number of other procedural mistakes can provide the basis for building a solid DWI defense, including failure to read a suspect their rights, a witness making inconsistent statements in trial, and other technical challenges.

It is important for those charged with DWI to contact an attorney right away and begin building a defense. Doing so will increase the odds of a favorable outcome.

Source: Associated Press, "Cop accused of stealing driver's iPhone from wreck," July 5, 2012. 2012.

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