Alabama DUI Lawyer Blog

Let’s say you got pulled over last week for drunk driving in the Huntsville area. Having a suspicion that you might be impaired, the officer asks you to take several field sobriety tests. If you failed, there’s a good chance that your next stop would be the local police department for a breathalyzer test. As a Birmingham DUI defense attorney, I know that being convicted for driving under the influence of alcohol can impact a person’s life for a long time to come.

Assuming you blew a 0.08 percent blood-alcohol reading on the department’s breathalyzer, you may think that you have no option but to plead guilty in front of a judge, however you would be wrong. Whether a motorist is arrested for DUI in Birmingham, Mongomery, Tuscaloosa or down in Mobile or Dothan, you have the same real option: contacting a qualified drunk driving defense lawyer.

For anyone stopped for DUI in Alabama’s and issued a summons for driving while intoxicated, the question you should ask yourself is were you truly drunk? Perhaps you had something to drink, but was a charge of drunk driving really warranted? Maybe yes and maybe no. Just like other aspects of the law, not every DUI arrest is completely cut and dried.

Many clients I have represented felt that they were unjustly accused. While some may have broken the law, they also understand the often severe consequences of a DUI conviction. If you want to improve your outcome in court, don’t automatically assume that you “have it coming.” That’s simply the wrong way to think about this kind of situation.

Something that really makes people believe the authorities have a strong case against them is the results of a breath test. You should understand that blowing a reading over the legal limit (that is, more than 0.08 percent blood-alcohol content or BAC) does not automatically mean you can or will be convicted of a DUI charge. Do not feel you are “out of luck” because the breathalyzer registered a high BAC.

There are several factors that affect your BAC, and there are also a number of other things that can influence the final breathalyzer reading. Every experienced drunk driving defense lawyer should know the how a breathalyzer functions, how it should be maintained and how a police office should use it to measure a driver’s BAC.

Continue reading "Birmingham DUI defense Lawyer: Will a High Breathalyzer Reading result in an Alabama Drunk Driving Conviction?" »

Whether a drunk driver is from Mobile, Tuscaloosa, Montgomery or anywhere else in Alabama, he or she may be surprised to learn that BAC-measuring devices (breathalyzers) can record falsely high blood alcohol content readings that in no way represent a driver’s actual state of drunkenness or sobriety. As a Birmingham DUI defense lawyer, I can say with some certainty that some people charged with driving under the influence of alcohol were in reality not legally drunk at the time. It’s all due to breathalyzer error.

While body weight and the interval between your last drink and having your breath tested are factors that affect BAC measurement, other factors can greatly affect the results from a breathalyzer machine, many of which are in use across the state by Alabama state police and other municipal and local law enforcement departments. Also surprising is that smoking can result in these false readings.

Research has been conducted that indicates smokers have a greater chance of being accused of DUI due to high BAC readings from a breath test. Actually, breathalyzers don't really measure alcohol. They are made to detect any compound containing compounds in the methyl group of molecules. These testing devices assume and methyl molecule in a person’s breath is from alcohol. This is very important information for Alabama motorists who smoke, because these machines cannot distinguish the difference between alcohol and acetaldehyde.

If you’re wondering, acetaldehyde is a compound produced by the liver in small amounts as a by-product in the metabolism of alcohol. Scientists have determined that acetaldehyde concentrations in the lungs of smokers can be greater than that of non-smokers – often many times greater.

This is why it is quite possible that a smoker arrested for drunk driving based on a breathalyzer test is much more likely to have a falsely high BAC reading. It has also been discovered that cigarette smoking can influence the human body's absorption of alcohol.

Research on smokers found that venous blood alcohol concentration-time curves between zero and 30 minutes and 60 minutes and the peak BAC were significantly less during the smoking period compared with the non-smoking period. This scientific study concluded that the effect of smoking on alcohol absorption has "considerable social and medicolegal relevance," and that the ingestion of nicotine should be taken into account when dealing with legal issues involving alcohol metabolism.

This is just one more reason why anyone charged with DUI should consult with a qualified drunk driving defense lawyer as soon as possible to discuss his or her case. Under no circumstances should anyone assume they have no defense simply because a machine said you were driving drunk, especially in the case of a first-time DUI offense.

Arrested for DUI in Birmingham or Mongomery, Huntsville or even Dothan? Why even hire a drunk driving defense attorney now that you're caught? Maybe you were recently pulled over for DUI or received a summons for being intoxicated while sitting in your parked car. Were you drunk? Perhaps. Was a charge of drunk driving really warranted? Maybe, and maybe not. Just like any other aspect of the law, not every DUI case is completely cut and dried.

As a Birmingham DUI defense attorney, many of the clients I see feel they were unjustly accused. While some may have broken the law, they also understand the consequences of a DUI conviction and want to try to improve the outcome. But it’s the people I don’t see that I worry about most -- the folks that believe they “deserved” it or that there is no way to fight the charge. That’s just plain wrong thinking.

One thing that makes people believe the state has a solid case against them is the results of a breath test. You should know that blowing a reading over the legal limit -- more than 0.08 percent blood alcohol content (BAC) -- does not automatically mean you will be convicted of a DUI charge. So don’t simply think you are out of luck because the Breathalyzer registered a high BAC.

There are several factors that affect your BAC, and there are also a number of other things that can influence the final Breathalyzer reading. Every experienced drunk driving defense lawyer worth his salt should know the how a Breathalyzer works, how it should be maintained and how a law enforcement office should use it to measure a driver’s BAC.

For instance, many people don’t realize that a breath-testing machine can often mistake other chemicals for alcohol. Also, burping, hiccupping or vomiting can cause the device to have an incorrect BAC reading. The reason is that a Breathalyzer is designed to measure the amount of alcohol coming from your lungs. If you burp, hiccup or vomit prior to the test, any alcohol in your stomach can travel to your mouth, something called "mouth alcohol," which can then cause the machine to return a distorted BAC reading.

This is just one example of why you should always consult a DUI defense lawyer if you are charged with drunk driving. The consequences are far too serious not to fight for your day in court.

A Cottonwood, Alabama, man recently received a 100-year jail sentence following his conviction for a fatal 2006 traffic accident that resulted in the deaths of the man’s wife, 10-year-old son and young friend. All three were killed when the car they were riding in, driven by the father, 34-year-old Kenneth McDaniel, swerved into the path of an oncoming tractor-trailer. McDaniel, who was charged with DUI manslaughter and assault, had a blood alcohol content of 0.055% an hour after the crash. The legal blood-alcohol content in Alabama is 0.08%.

While we all sympathize with families of the victims of this terrible accident, there is no way that this man should have received a conviction for driving under the influence, or that alcohol was a contributing factor in the deaths of his family and young passenger. First of all, his blood alcohol may have actually been rising at the time of the accident.

For instance, if he recently had a beer with dinner his blood alcohol content was likely rising, not falling (as I am sure the prosecution contended). Furthermore, in order to prove alcohol was a factor in the deaths of his family members, the state of Alabama would have to prove that his driving was effected by the alcohol. It seems the only evidence that alcohol effected his driving is the crash itself, and there was testimony in the case that McDaniel only had one beer on the night of the crash.

This case should wake the people of Alabama up. If you drink at all, have beer or wine with dinner, and are involved in an accident while going home, you may be charged with DUI manslaughter and assault. For one beer or a glass of wine you or a loved one could end up in jail for 100 years. This is an absolute tragedy upon tragedy. How much more can the State of Alabama take from the man?

Cases like these are why I am an Alabama DUI and Criminal Defense lawyer and attorney. It makes me ashamed that Federal Highway dollars and the constant lobbying of the MADD Mothers Against Drunk Drivers have caused a free country to come to this. I can only hope this case can be overturned on appeal. It should be shocking that an accident can sentence someone to 100 years in prison when an outright murder carries far less time. The judge that sentenced this man should be ashamed of himself as well. Of course, this judge is just pandering to the constituency that elects him by trying to appear tough on crime, so maybe we all should be held accountable as well.

Today I will pick up my discussion of the various ways to fight an Alabama DUI charge; If you or someone you know has been arrested or charged with Driving Under the Influence of Alcohol, this second part of my 20 ways to beat your DUI may be helpful (the first part can be found on my April 28 blog). Below are five more ways a skilled and knowledgeable Alabama DUI lawyer or attorney can help you beat a DUI charge:

6.  Rising Blood Alcohol Level:

A suspect arrested for DUI can blow a 0.15 at the police station, yet have had a 0.07 BAC at the time he was pulled over. Why? This due to the fact that alcohol takes an average of 50 minutes -- but as long as three hours -- to be fully absorbed into a person's bloodstream, thus creating a peak in blood alcohol level. This is critical, especially if the DUI traffic stop happens relatively soon after an individual has finished drinking.

In this case, your blood alcohol content was likely still rising when you blew in the breathalyzer. This means that even if your BAC was above 0.08 when the blood draw or breath test occurred at the police station (or hospital), it may well have been below 0.08 when you were actually driving. There is no law against having a BAC above 0.08 at a police station; it’s only the blood alcohol level while actually driving that counts for DUI purposes.

7.  Alabama Law Requires a 20 minute Observation Period Before The Breath Alcohol Test:

Alabama regulations require the officer to watch the DUI suspect continuously for at least 20 minutes prior to administering the breath alcohol test. The officer must make sure that during this period the person does not consume anything, burp, belch, hiccup or regurgitate. Any of these may cause alcohol to travel from the stomach to the mouth. Blowing this “mouth alcohol” into the breath machine triggers an exaggeratedly high BAC reading.

Officers rarely follow this required observation procedure. They usually perform paperwork, write reports, set up the machine and converse with their partners, diverting their attention from the DUI suspect who must be watched vigilantly during this period. Failure to follow this procedure casts doubt on the validity of the test result, and can sometimes get the test thrown out of court altogether.
 

8.  Inaccurate Blood-Breath Partition Ratio -- Ratio is should be based upon Individual Differences:

DUI breath testing assumes that “breath alcohol” accurately reflects blood alcohol based on a 2100-to-1 partition ratio. This assumption rests on the proposition that the average ratio across the population is 2100-to-1. But studies reveal that the ratio of blood to breath varies greatly among individuals.

A DUI suspect with a ratio lower than 2100-to-1 will generate an inaccurately high reading from a breath alcohol test. And there’s no way to determine what a given person’s ratio is, or what it was at the time of the DUI breath test.

9.  The Police Officer Failed To Read You Your Miranda Rights:

Police must advise you of your Miranda Rights in a DUI case if (1) you are in custody and (2) they question you seeking to illicit an incriminating response. If the officers continued to interrogate you after placing you in custody for DUI, and did not first read you your Miranda rights and obtain a valid waiver, then your post-custodial statements will likely be excluded from evidence.

10.  Alcohol On Your Breath Does NOT Mean You Are Under the Influence:

In explaining why he believes you were drunk, the DUI officer almost always mentions smelling “a strong odor of alcohol on the suspect’s breath.” But the officer looks foolish on cross-examination when he admits that alcohol itself (ethanol) has no odor. Rather, it’s the mixing agent or flavoring that produces the odor we associate with alcohol. If you doubt this, go to the market and buy a 6-pack of a non-alcoholic beer. It tastes and smells just like beer; but it contains no alcohol. Also, vodka is a colorless and odorless alcohol. You could drink a gallon vodka and your breath would not smell.

Indeed, laboratory studies show that police officers' perceptions of how strongly a person’s breath smells of alcohol simply doesn't correlate with his/her actual blood alcohol level. All that can be gleaned from the odor of alcohol on the breath” is that a DUI suspect probably consumed some alcohol recently. But it does not provide evidence that the person drank enough to be under the influence or to have a BAC of 0.08 or higher.

Don’t think for a moment that a DUI arrest will automatically result in a conviction, fines or jail time. I’ll say right now as a professional Alabama DUI Attorney that the situation is never hopeless or inevitable.  Time and time again, I am asked by potential clients about the how practical it really is to fight against an Alabama DUI charge.  I always respond one way: Clients retain my firm, and pay me very well, for one reason, to fight Alabama DUI charges and win.  Pleading guilty to a DUI charge is, in most instances, not the answer. 

Prosecutors in charge of DUI cases will point out several factors to try and prove you were operating a vehicle under the influence of alcohol:  the odor of alcohol on the breath, driving erratically, you appeared disheveled and acted as if intoxicated, exhibited poor field sobriety test (FST) performance, plus the results of a breath or blood alcohol (BAC) test.  What the prosecution will not mention or point out, and what you must rely on an experienced Alabama DUI defense lawyer and attorney to call attention to, is that each of these "evidence" types are each ambiguous, subject to a variety of interpretation, often unreliable, and result in faulty assumptions.  Over the next few posts I detail and explain 20 possible DUI defenses a good Alabama driving under the influence of alcohol attorney or lawyer can use to win a not guilty verdict in your DUI trial. 

1. Factors Other Than Alcohol Can Cause Poor Performance On DUI Field Sobriety Tests

   Even if you performed less than perfectly on the DUI field sobriety tests, this may be attributable to unfair test conditions such as:

   • The tests occurring on uneven surfaces or slippery terrain
   • The distraction of flashing lights and traffic whizzing by
   • The test area being too dark or amidst glaring lights
   • Cold temperatures, rain or wind
   • Unsuitable footwear—such as boots, high heels or dress shoes
   • Nervousness, anxiety and/or frustration

   Most people who had nothing to drink would still struggle with the FSTs under these conditions. The upshot is this: even if you struggled on the roadside tests, this may well be attributable to the setting and circumstances rather than attributable to you being intoxicated.  If you do not believe me, simply try the standardized field sobriety test at home, in a comfortable setting, on a steady floor, without any nervousness or anxiety.  This is often enough, when combined with a skilled DUI defense litigator to raise reasonable doubt in jurors minds as to whether or not you were indeed intoxicated.

2. There Are Often Innocent Explanations For The Symptoms Of Intoxication

   Police officers almost always claim to have observed certain “objective symptoms of intoxication” in the DUI suspect. The standard list includes:

   • Bloodshot and watery eyes
   • Slurred speech
   • A flushed face and
   • An unsteady gait

   DUI police reports feature pre-printed boxes for these symptoms that officers merely check off. Of course, the officers almost never photograph, videotape or audiotape the DUI suspect so that jurors can later judge for themselves whether and to what extent these symptoms were present.

   In any event, non-alcohol causes often explain these observations. For example, fatigue, allergies and eye strain cause bloodshot eyes. Nervousness, embarrassment and anger over the DUI traffic stop cause flushing. Intimidation and fluster cause slurred speech.

   The officer rarely takes these innocent explanations into account. The DUI defense attorney must emphasize to the jury that the evidence is just as consistent with non-alcohol explanations as it is with intoxication.

3. Breath Testing Machines Mistake Other Chemicals for Alcohol

   DUI Breath alcohol testing machines also detect non-alcohol compounds, which they frequently mistake for alcohol. Among the compounds most commonly mistaken for alcohol are ethylene, toluene, nitrous oxide, diethyl ether, acetonitrile and isopropanol.

   The presence of any of these compounds in the DUI suspect’s lung tissue will likely cause a false, or falsely high, blood alcohol reading. We find that people frequently ingest these compounds at work or in other environments where the chemicals are present.

4. The Presence of Mouth Alcohol Can Contaminate The Breath Alcohol Test Results

   Ideally, DUI breath testing devices detect alveolar air of the deep lungs, which is loosely correlated with blood alcohol level. But the breath testing machine can be “tricked” by latent alcohol in the mouth—often caused by burping, belching, or the recent use of cough syrup, cold medicine, mouthwash or breath spray.

   When the breath testing machine picks up mouth alcohol rather than deep lung air, it gives BAC readings greatly higher than the true BAC. This becomes a particular problem for DUI arrestees with dentures, denture adhesives, braces, cavities, food impactions, orthodontic work or who have food particles trapped between their teeth (as all of these conditions tend to produce mouth alcohol).

5. Field Sobriety Tests Wrongfully Convict 33% of DUI Suspects and Provide A Very Poor Measure Of DUI Impairment

   Even when the standardized field sobriety tests are administered perfectly (which is rare), they still provide a very inaccurate measure of whether a DUI suspect is impaired. According to NHTSA, for example, the one leg stand test has a 65% accuracy rate and the walk-and-turn test a 68% accuracy rate.  Not only do these stats. presume a perfectly administered test, they also assume every person is physically the same, without disability, inner ear problems, or infirmity in any way. 

   This means that if people were convicted based on these roadside tests, one third of them would be innocent and wrongly convicted. Or, viewed another way, when officers arrest DUI suspects based on failing these tests, one in three suspects is wrongfully arrested.