Call for a FREE Consultation (303) 444-4251

Flawed Evidence: A Useful DUI Defense Point

Flawed Evidence: A Useful DUI Defense Point

By on Jan 29, 2014 in Blog, DUI Blogs | 0 comments

Phil Clark - Flawed DUI EvidenceMany times people will think that because prosecutors have evidence of a DUI against them that they have few options remaining, and a conviction is certain. However there are often many possible arguments against DUI evidence which typically arise from either human or mechanical error. You cannot be convicted when DUI evidence is found to be too weak, or flawed, to prove you are guilty beyond a reasonable doubt. These are the areas where DUI cases are fought. Two example areas where flawed DUI evidence is often found are: Roadside Sobriety Tests and Breathalyzer Tests.

Roadside Sobriety Tests

No driver is legally obligated to take a roadside sobriety test as the test is not scientifically sound and has a great number of inherent flaws. Though it is a way to collect DUI evidence, few of the test results can be used in court against you. Rather, the sobriety test is a way to signal to an officer that you may be intoxicated and that further testing is required to confirm that suspicion (by means of Breathalyzer and Blood Tests). When sobriety test evidence is actually brought to court, it is typically police videos, which show the defendant either unable to walk, stand, or speak coherently.

A certain few specific sobriety tests are especially flawed, for instance when an officer asks you to follow their finger with your eyes for Horizontal Gaze Nystagmus (HGN) testing. What the officer is looking for is how often your eyes twitch and jerk as they move back and forth. The problem lies in the fact that few officers have been trained in ophthalmology, the study of the eye. A number of outside influences can also affect the test, such as wind, the sun, oncoming cars, headlights, and really any distraction in the background.

Any physical type of test, such as standing on one leg while looking straight into the sky, can have the results immediately thrown off by someone who is injured or simply not one with good balance. Beyond a person’s physical attributes, any number of external factors can affect these tests as well, such as uneven ground or wind.

The tests themselves are not only flawed, but the results can be misinterpreted and any number of physical observations made by an officer may simply be wrong. Things are difficult to account for such as physiology, medical conditions, and disabilities, which are unknown unless mentioned. Language barriers can also play an enormous role. If you’re asked to do something you don’t entirely understand, how can you be expected to do it correctly?

Another common issue is when an officer’s report is inconsistent with his testimonial. Many times when an officer is trying to recall something in court, he may remember something entirely different from what the original report read. They may not even have written everything down that they intended to. Either way, when the officer who arrested you can’t get the story straight, it’s easy to question its accuracy.

Breathalyzer Tests

You might believe that a breathalyzer test is flawlessly accurate, however, when considering Murphy’s Law (Anything that can go wrong will go wrong), nothing can be. Keep in mind that you are not legally required to take either a breathalyzer or blood test. Declining to take the breathalyzer often results in significantly steeper penalties and fines, such as a year suspension of your license, though you won’t be charged with a DUI.

A breathalyzer device can have any number of technical errors though. These errors are either due to the device’s hardware or those created by the incorrect application by an officer. A battery may be low, a circuit blown, the intake valve may be dirty, or the device may simply be too old and on the fritz. Breathalyzer devices need to be calibrated regularly and are often forgotten. Breathalyzers also require maintenance to function properly and many are seldom taken care of.

Furthermore, you may not have consumed alcohol but there may be alcohol on your breath, such as after using mouthwash, and a breathalyzer will be triggered by this. This is called a “false reading” due to mouth alcohol. When analyzing a breath sample, the breathalyzer’s internal computer assumes the breath sample came from alveolar air, meaning air exhaled from deep within the lungs. However, alcohol may come from the mouth, throat, or stomach for a great number of reasons. In order to guard against this misreading, certified breath-test officers are trained to observe a test subject for at least 15-20 minutes before giving the test. If you have ever passed through a DUI check point, you would know this is not always the case.

Hopefully this article highlights the point that at least for two possible tests you can be given, there are a number of areas where mistakes can be made and test readings can be inaccurate. There are a number of reasons for this, but no person should be found guilty of a crime they didn’t commit. If you find yourself in this situation, please seek legal counsel immediately. No one should have to endure injustice, and the headaches having a DUI conviction can cause.

At The Clark Law Firm, we understand that the law can be a tricky course to navigate. If you need help finding your way and have been convicted of a DUI in Boulder Colorado, or are concerned with Drug Offenses, in need of Felony Defense or Misdemeanor Defense, please be sure to contact us immediately. We will hit the ground running to make sure you have the best Boulder Attorney and legal coverage possible!

Phil Clark is a Criminal Defense Attorney for The Clark Law Firm in Boulder, CO. His experience as a senior prosecutor gives him a strong advantage for aggressive criminal defense and those in need of a Boulder DUI attorney. Contact us today for a FREE Consultation.