Alabama DUI Lawyer Blog

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.

Law enforcement authorities in the Montgomery area and across Alabama logged numerous DUI arrests and noted a significant reduction in fatal car accidents during the recent “Take Back Our Highways” safety campaign that ended this past July 31. As a Birmingham drunk driving defense lawyer, I commend local and state police for their efforts. At the same time, I worry that some of those 185 driving while intoxicated arrests may not have been “by the book” or based on good evidence.

The drunk driving and traffic offense crackdown, which was in effect for the last week in July, resulted in more than 16,000 tickets being issued to motorists across the state. In my experience, not every ticket, summons or arrest can stand up in a court of law. For those drivers accused of driving under the influence of alcohol, many factors can affect the veracity of the prosecution’s evidence.

For instance, breathalyzer testing equipment must be maintained correctly, otherwise the results can be erroneous to the point of being meaningless during a trial. And even if the machine is working correctly, the factors affecting blood alcohol content, or BAC, can vary widely, and from one individual to the next. Don’t assume that because the machine said you were legally drunk that it will stand up in court.

In fact, the prosecutor in charge of your DUI case may bring up a number of points in an effort to prove that you were operating your car or truck in an intoxicated state. Factors such as the “odor” of alcohol on the breath, erratic driving, a disheveled appearance or “acting” as if drunk, exhibiting poor field sobriety test (FST) performance, plus the results of a breath or blood alcohol (BAC) test. All of these are ways in which prosecutors try to influence the court to make a guilty judgment against you.

But what the prosecution tends not to mention and hardly ever bothers to point out is that each of these "evidence" types are ambiguous and subject to a variety of interpretation. Furthermore, they are often unreliable and result in faulty assumptions.

This is why you need to rely on an experienced Alabama DUI defense attorney. A qualified drunk driving lawyer will call into question each of these erroneous types of so-called evidence. I know my way around a courtroom and I know the way prosecutors go after alleged DUI offenders. Don’t take a drunk driving arrest or summons lightly. Contact an attorney that can fight aggressively for you.

Fewer fatalities during 'Take Back Our Highways' campaign, WAFF.com, August 4, 2009

Some folks just make things difficult for themselves, which, in a way, is why DUI defense lawyers are here to help. As a drunk driving defense attorney based in Birmingham, AL, I’ve represented my share of tough driving while intoxicated cases. With my vast experience in defending clients accused with driving under the influence of alcohol or drugs in Alabama, I understand the way the prosecution typically handles such cases, and that’s important to my clients.

Recently, two men -- who were ultimately caught and charged with drug DUI and a litany of other drug possession offenses -- led police on a high-speed car chase through northeastern Alabama. It all began just before 10pm after police arrived at the scene of a separate traffic accident on Dean Road in DeKalb County.

According to police, one of the suspects, 39-year-old Phil Harris Bryant, was allegedly involved in that first accident, but that man left the scene after being picked up in a Pontiac Bonneville driven by the second suspect, Stephen Crane Alexander, 45. An as yet unnamed woman was also traveling with Alexander as a passenger, according to news reports.

Not long after, Fort Payne officers stopped Alexander’s Pontiac. The police reportedly removed Alexander from the vehicle and attempted to arrest him on suspicion of DUI and violation of narcotics law, but Alexander apparently broke away from them. Officers used a Taser on the man, but Alexander still was able to get back into his vehicle and leave the scene with the other two passengers aboard.

The police gave chase at speeds occasionally exceeding 100mph heading into Cherokee County. During the pursuit, police observed objects -- possibly narcotics and drug paraphernalia -- allegedly being thrown from the vehicle. The chase covered about 20 miles and lasted for about 15 minutes.

The chase ended when the suspects’ vehicle hit a tree in Menlo, GA. Bryant had already jumped from the vehicle during the chase and was picked up by the police. The driver and the other passenger fled on foot after the crash, but Alexander was caught soon after. The woman remains at large, though police have a warrant for her arrest.

Police charged Alexander with DUI of a controlled substance, resisting arrest, reckless endangerment and unlawful possession of a controlled substance. Bryant was charged with unlawful possession of a controlled substance and possession of drug paraphernalia.

Continue reading "Drug DUI Suspects Lead Alabama Police on High-speed Car Chase" »

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.

If you, a family member or someone you know has been arrested for drunk driving in Birmingham, Alabama, or surrounding areas, the following information may be of help. Many people who get pulled over for driving while intoxicated realize that they have no true defense. As a skilled Alabama DUI Attorney, some of my clients have asked me what their options are when the police clearly had them “dead to rights.” Although this may seem like the end of the road, it may not be.

Under some circumstances it is possible to negotiate a “deferred prosecution” for an Alabama DUI charge. Using this approach, as opposed to fighting the DUI charges in court, is sometimes advisable when there are no other grounds to have your Alabama DUI charge dismissed. If a lawyer believes his client cannot prevail in a jury trial, or in situations where the client/defendant seeks to end the drunk driving nightmare as quickly and as cheaply as possible, the deferred prosecution avenue is sometimes the best choice.

In a deferred prosecution, a person who is charged with an Alabama DUI basically agrees to plead guilty. In such instances, as long as the defendant completes certain requirements (which differ slightly from one jurisdiction to the next), the drunk driving charges are dropped.

A typical Alabama DUI deferred prosecution requires the defendant to pay fines, attend alcohol abuse classes, take random drug and alcohol screenings, and complete community service. Normally the defendant will have approximately six months to complete these requirements. If the requirements are met, the prosecution dismisses the DUI charges.

This is a beneficial strategy because your permanent record is at stake. Just one DUI conviction can be devastating to an individual; it can result in the loss of a job or the end of a career, cause an increase in insurance premiums, and stay on your record forever. Deferred prosecution eliminates most of the serious and lasting consequences of an Alabama DUI charge. Deferred prosecution can be offered to those with multiple Alabama DUI convictions as well.

As an Alabama DUI lawyer, I have participated in numerous deferred prosecution negotiations. It is essential that anyone charged with a DUI in Alabama hire an experienced Alabama DUI lawyer who can get you the most attractive deal possible. Deferred prosecution is not guaranteed, nor is it offered to everyone. Unfortunately, I have seen way too many Alabama DUI defendants go to court without hiring an attorney and end up with a permanent criminal record when they would otherwise have qualified for deferred prosecution.

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.