As any skilled DUI attorney knows, the most important decision they must make in a case is choosing what defense to present. Because, once a defense is presented, it tends to be very difficult to present a different one if the jury is unimpressed by the first.
Once the DUI attorneys first argument is made, the following arguments must remain consistent and support the main argument. If a DUI attorney fails to do this, they can come across as being sneaky or unorganized.
It is never a wise choice to argue that your defendant was hardly over the legal limit, as this tries to make room for a gray area when one does not exist. You are either guilty or not guilty, and the jury will determine which one you are. You cannot be “a little bit” guilty. If this is your approach, it would be a better idea to negotiate a bargain with the prosecutor rather than taking your case to trial.
On a similar frame, do not try to argue that the defendant did not realize they were over the legal limit, as it is irrelevant. If the defendant is over the legal drinking age than they are an adult, and therefore responsible for their decisions. As a helpful side note, it is not a good idea to refer to the breathalyzer device as either an “instrument” or a “machine” as both of these terms are thought of to be accurate.
It would be much more wise to described the results that were given by the equipment and argue how it is not completely accurate, as breathalyzer devices do not test this for blood alcohol levels but rather gives an estimate based off of the persons breath. The fact is, this will vary greatly between people, as one individuals results can actually display as much as 180% more alcohol on their breath as another person with the exact same BAC.
Try not to use scientific sounding terms when fighting breathalyzer test results such as “margin of error”. These types of terms tend to confuse and bore the jury. It is a much better technique to give them a range. Such as, when someone drinks a specific amount of alcohol their BAC can register between X and X. This is much easier for a jury to understand. Also, do not ever try to claim the police officer is biased or corrupt unless you have of evidence, as most jurors will not believe this and can come across as desperate.
Another good point to note, is rather than attacking the police officer’s integrity, it is a better idea to discuss the correct breathalyzer procedures and show to the jury how the police officer didn’t follow them. A good example would be, that the rules state the officer must wait near the driver for 15 to 20 minutes prior to administering the breathalyzer test, because if the driver has consumed certain foods or burped, the test can give an incorrect reading and actually show higher results than are true.
It is critical that you really drive the point home that breathalyzer equipment and field sobriety tests are different in different cities, frequently show a false positive, and are definitely not perfect. Because, if the jury is convinced these procedures are perfect, it will prove to be very difficult to change their mind.
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