Your DUI Defense

It’s not what you did…it’s what you do now that’s important, starting with the right defense attorney.

You need to fully understand that, at a minimum, a DUI conviction can damage your reputation, endanger your driving privileges, jeopardize your employment, and, land you in jail. We will thorough investigate your case and aggressively challenge the evidence against you. Even when you think the police have strong evidence, we can help. 

A DUI Defense You Can Count On

Police officers make mistakes, machines malfunction and technical errors occur. We uncover these mistakes and use them to cast reasonable doubt on your guilt. We challenge every aspect of the prosecution’s case, including:

  • The officer’s basis for the traffic stop, as well as probable cause for the arrest
  • Officer’s training and application of that training to your case
  • Whether tests meet mandated requirements
  • Whether you showed sufficient impairment
  • Whether the officer followed all statutory and case law requirements

All of this is used in deliberations with the prosecutor at pre-trial and at trial. As a result of preparation and perseverance, we are often able to have DUI charges reduced or dismissed. However, when a conviction is unavoidable, we always seek alternatives to jail, such as alcohol treatment, house arrest, and other options including community service.

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The Facts

The effects and punishments for a DUI and DUI Metabolite have increased with the passage of every Utah Legislative session until they can now significantly impact anyone’s future and career. A second offense (and that includes a Reckless Driving Alcohol Related or Impaired Driving as a first or second offense) or a first offense with a blood alcohol level of .16 or higher, mandates formal probation, an ignition interlock device for the term of that probation, jail time, substantial fines, and extensive counseling. There are circumstances where a judge can waive some of these requirements, but only when they are stated for the record and only when they are stipulated to by prosecution and defense. A third offense within ten years can and almost always will be enhanced to felony status, which carries with it potential incarceration in the state prison for 0-5 years and up to a $5,000 fine.

The DUI statute refers not only to the use of alcohol and illegal drugs, but also to legal and prescribed pharmaceutical drugs where they have affected the ability to drive safely. Under the separate, but closely related, statute of driving with the metabolite of a controlled substance in your system you can be found guilty if you have in your system any illegal or legal drugs. It is a defense to this particular statute if you have a legal prescription for the medication, but a legal prescription is not a defense to a DUI if that drug, even if prescribed, has impaired your ability to safely operate a vehicle. This statute continues to increase the pressure on the legal system, as well as upon innocent citizens.

Once you have been charged with a DUI, the prosecuting authority aligns all of its considerable power and forces against you. Can you afford an attempt to trek through the maze which the legislature has created in this area without protection from an experienced guide? A DUI is clearly a tough and complex offense that can not only harm you immediately, but damage your long term reputation and employment possibilities. Because of this, you need the best defense for a tough offense.

With all of the potential consequences of a DUI conviction, including possible loss of license up to 36 months, in the case of a second refusal within ten years, a “Not a Drop Alcohol Restricted License” for up to a lifetime, jail or prison time, insurance increases, formal probation, and an ignition interlock device, you can’t afford not to know what you’re doing when it comes to being charged with a DUI. We have focused our practice on DUI defense since 1987 and have seen the Utah State Legislature continue to increase penalties and stigmatize the DUI laws even further each year. By focusing our work, legal knowledge, and creativity in this area for the past 25 years, we have achieved positive solutions to nearly all of the problems caused by DUI arrests.

There is light at the end of almost every tunnel. There are often good defenses to what may otherwise look like insurmountable evidence.  You will never know of these defenses unless you have someone with the experience and the work ethic to find and reveal them to the court or tryer of the fact.

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Potential Intoxilyzer Defenses

If you’ve been pulled over for driving while intoxicated, it’s likely you’ve been subject to an intoxilyzer test. An intoxilyzer or preliminary breath test (PBT) measures your breath alcohol content from the air in your lungs.

Police utilize PBT devices in order to decide if someone has been drinking enough to be arrested for a DUI offense. The problem, though, is that there is serious debate as to whether these particular breath tests are accurate if they aren’t administered or maintained properly. A blood test is the most reliable source of information on blood alcohol level, but a breath test at the site of a traffic stop, through a PBT, is not reliable and not admissible in court for level of blood alcohol. Because of this, PBT tests are commonly used.

Intoxilyzer results may not be admissible if the arresting officer observes any action that may affect the accuracy of the reading. Some of these actions include eating, chewing, drinking, or belching. So an officer must check the mouth for these issues and then observe the driver continually to assure they do not occur. Many times, if this observation (usually required to be anywhere between 15-20 minutes) does not occur, the test result can be blocked or suppressed from coming into evidence. (Since the basis of the majority of DUI arrests stem from the results of the PBT, these types of inaccurate results are alarming to say the least.)

Here, we’ll discuss the main problems with both the PBT and Intoxilyzer testing, and why errors can occur.

  1. Calibration of both the PBT device and Intoxilyzer is important for accurate readings. If the device itself isn’t periodically calibrated, and the batteries replaced, inaccurate readings will occur. This basic maintenance of the unit is imperative to proper functioning of the device.
  2. Any substance in the mouth that contains alcohol can result in a false positive reading. These substances can include mouthwash, OTC and prescription medications, and even breath mints or gum.
  3. Burping, belching, or vomiting before a intoxilyzer can result in much higher breath alcohol readings than would normally be found.
  4. The software that the PBT and Intoxilyzer runs on, as well as the hardware of the devices themselves, are subject to glitches, bugs, and crashing the same as any other electronic device.
  5. Not following the instructions or not being properly trained in using the device will result in inaccurate readings.
  6. Common chemicals can often render false positives. Things such as varnishes, paint fumes, and adhesives are similar in nature to the alcohol that the machine measure and can cause false positive results.
  7. A medical condition such as diabetes will result in more acetone in the breath, and this is one of the chemical compounds that intoxilyzers measure. Dieters will also create more acetone.
  8. Foods made with ingredients including liqueur, such as desserts, may create a false positive result.
  9. Undiagnosed dental diseases such as gingivitis will give inaccurate results.
  10. Acid reflux, or GERD, is a condition where you regurgitate into your mouth a bit of stomach contents. This results in alcohol vapors from your stomach to be present in your mouth.
  11. Working around certain chemicals (and breathing them) can cause errors in machine readings. These chemicals include, but aren’t limited to: benzene, cough syrup, gasoline, glue fumes, isoprene, methane, methanol, mineral spirits, and paint.

Standardized Field Sobriety Testing Defenses

Field sobriety tests are one of the most common ways to gather evidence in a DUI case. While these tests are supposed to be standardized, there are so many variables at work during a traffic stop. There is no real way the tests can be “standardized”, and they are far from accurate because of their subjective nature. The National Highway Traffic Safety Administration reports that field sobriety tests are anywhere from 79% to 88% accurate, depending on the test, and this is assuming that the officer giving the test follows the testing instructions implicitly.

During a SFST (Standardized Field Sobriety Test), you are given a series of exercises, that help gauge your balance and coordination, and your ability to focus on more than one task at a time. There are four basic tests that the NHTSA recommends be used when doing a field sobriety test: nystagmus, one-leg stand, walk-and-turn, and the PBT

  • Nystagmus – This tests your ability to follow an object (a pen or light, usually) with your eyes while keeping your head still.
  • One-leg stand – You are asked to raise one of your legs off the ground six inches high while standing in place. If you put your foot down, use your arms to maintain balance, or sway, you will fail the test.
  • Walk-and-turn – You will be asked to walk in a straight line using a heel-to-toe action for nine steps, turn around, and walk back the same way. This is designed to test your ability to follow more than one direction at a time.
  • PBT – See above for problems with the Preliminary Breath Test and limitations.

For the elderly or those with special medical considerations, these tests may not be accomplished satisfactorily while completely sober, and will result in a failed exam. A field sobriety test is also to be given in dry conditions on level surfaces. Any test administered during a deviation from this specific testing environment should not be used as evidence.

You can decline a field sobriety test. If you do so politely, there should not be a problem, but if the officer believes that you are under the influence, you may still be arrested. If you have not been drinking or are not taking any medications or drugs, you are better off declining this test.

Additionally, you are not required to answer any questions outside of the basic information an officer would need from you to identify you – license, auto registration, proof of insurance, etc.