top defenses employed in a driving under the influence prosecution

8/12/2019 Top Defenses Employed in a Driving Under the Influence Prosecution

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A Omaha DUI Stop

Knowing What to Expect

TOP DEFENSES

EMPLOYED IN A DRIVING

UNDER THE INFLUENCEPROSECUTION

Thomas M. Petersen

Omaha DUI Attorney

Contrary to What the Prosecutor Would Like

You to Believe

There Are A Number of CommonDefenses that Could Prevent You from Being

Convicted of a Nebraska DUI
http://www.duiattorneysomaha.com/meet-tom-nebraska-dui-attorney/http://www.duiattorneysomaha.com/meet-tom-nebraska-dui-attorney/


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p Defenses Employed in a Driving under the Influence Prosecution in Omaha www.duiattorneysomaha.com

If you were recently stopped on suspicion of driving under the influence, or

DUI, in Nebraska it was likely an unpleasant experience. If the stop

ultimately led to the officer charging with a DUI offense you are probably

concerned about the impact a DUI conviction will have on your future.

Often, the actual sentence handed down by the court for a DUI conviction

is not nearly as burdensome as the non-judicial consequences of being

convicted of a DUI in Nebraska. Collectively, the judicial and non-judicial

ramifications of a DUI conviction can be far-reaching and long-lasting. The

good news is thatcontrary to what the prosecutor would like you to

believethere are a number of common defenses that could prevent you

from being convicted of a Nebraska DUI.

WHY A CONVICTION MATTERS

If this is your first DUI charge you will likely be charged with a

misdemeanor unless there are extenuating circumstances such as

seriously bodily injury or death from an accident. In Nebraska, you

could be sentenced to a period of incarceration for a first-time DUI

conviction, though probation is also an option. In addition, you will

lose your driving privileges for a minimum of 60 days, incur a fine of

$500 and you will be required to apply for an ignition interlock

device, or IID. For a second or subsequent conviction these judicial

penalties increase significantly. Just a few of the various non-judicial

consequences of a DUI conviction include:


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Increased car insurance premiums for several years

Disciplinary action if you hold a professional license

Substantial out of pocket costs associated with probation fees,

mandatory counseling or treatment costs, using alternative

transportation during your license revocation period, and installing

and monitoring the IID device.

Lost employment opportunities

Negative impact on visitation with minor children

DONT BELIEVE EVERYTHING YOUARE TOLD

THE

PROSECUTOR HASNTALREADY WON

Both the law enforcement officer who arrested you and the prosecuting

attorney would like you to believe that your conviction is a done deal. If

given the opportunity, the prosecuting attorney will likely try and convince

you to take plea agreement early on in the case by suggesting that the

evidence against you is more than sufficient to obtain a conviction. Dont

believe everything you are toldparticularly by the prosecuting attorney.

Remember, it is the prosecutors job to convict you. Make the prosecutor

actually do his or her job instead of making it easy by agreeing to a plea

agreement without even exploring defense options. The truth is that there

are often several defense strategies that could result in the dismissal of the

charges against you or in an acquittal if the case goes to trial.


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COMMON DEFENSES

Although most DUI stops tend to follow the same basic procedures, no two

stops are exactly the same. Only an experienced Nebraska DUI attorney

can evaluate the specific facts and circumstances of your stop and arrest to

determine what defense options you have; however, there are some

commonly utilized defenses, including:

Challenging the stop. The law requires the officer who conducted

the initial stop to have

had a valid legal

reason to stop you.

Officers routinely

testify that a suspect

was exhibiting signs of

intoxicated driving

such as speeding,

weaving, or failing to signal. On cross-examination, however, an

experienced DUI attorney can usually get the officer to admit that

drivers who are not under the influence also exhibit these behaviors.

Therefore, probable cause may not have existed for the stop. If the

officer did not have probable cause to stop you in the first place any

evidence obtained from the stop is inadmissible at trial.

FSTs are far from accurate. During your stop you were likely

required to perform a series of field sobriety tests, or FSTs. If an


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officer correctly administers the tests and properly interprets the

results, FSTs canprovide someindication of intoxication. Most

officers, however, do not administer the tests properly nor do they

properly interpret the

results. In fact, when

questioned about the

proper procedures as

outlined in their own

training manual many

officers are unable to

accurately answer the

questions. Furthermore, the results are subjectively interpreted by

the officer conducting the testthe same officer who has an

incentive to declare that you failed the tests.

Breath tests arent

accurate either.You are

probably under the

impression, as are most

people, that a breathalyzer

provides an accurate

measure of your blood

alcohol content, or BAC,

level. Not necessarily so. Just as with FSTs, there is considerable

room for human error when administering a breath test. In addition,

a breathalyzer must be properly calibrated on a regular basis to


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provide results that are anywhere close to accurate. Even assuming

that the machine has been properly calibrated recently and the test

operator administers the test correctly, there are still a number of

factors that can cause the results to be skewed. In fact, the results of

a breath test can be off as much as 50 percent!

Rising alcohol level defense. When alcohol enters your body it

begins to be absorbed into your blood stream. As that occurs, your

blood alcohol

concentration, or BAC,

rises until it reached the

peak absorption rate. If

you took a breath test

before you actually

reached your peak

absorption rate the

results of the test could have produce a false result, indicating that

your BAC was higher than it actually was when you were operating

your vehicle. This defense often applies if you drank alcohol just prior

to driving.

The chain of custody might have been broken. When physical

evidence is gathered in a criminal case the evidence must be properly

stored and guarded to prevent loss or contamination. In a DUI case

this requires blood or urine samples as well as breathalyzer test


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results to follow the proper chain of custody procedures. If the chain

of custody is broken, the evidence may be inadmissible at trial.

The officer might be your best witness. The average patrol

officer makes hundreds of stops each month and likely arrests

several motorists for DUI. By the time your case makes it to trial the

officer may remember few details about the stop. Typically, they rely

on boilerplate testimony about your appearance and behavior. Your

attorney, on the other hand, has had weeks to review every detail of

your stop including what you were doing prior to the stop, what you

were wearing at the time, and what was said during the stop. The

more incorrect or inconsistent testimony your attorney can elicit from

the officer the less reliable the officers testimony becomes.

Sometimes, the officers testimony actually helps your case!

Very few driving under the influence prosecutions are as open and shut as

the prosecution would like you to believe. Before you subject yourself to

the multitude of penalties that stem from a Nebraska DUI conviction take

the time to consult with an experienced Nebraska DUI attorney to explore

any possible defenses you may have that could prevent a conviction.

NOLO, DUI and DWI Defenses

NHTSA,Standardized Field Sobriety Testing

NHTSA,The ABCs of BAC

BACtrack,Are Breathalyzers Accurate?
https://www.nolo.com/legal-encyclopedia/dui-dwi-defenses-32254.htmlhttps://www.nolo.com/legal-encyclopedia/dui-dwi-defenses-32254.htmlhttp://www.nhtsa.gov/people/injury/alcohol/sfst/appendix_a.htmhttp://www.nhtsa.gov/people/injury/alcohol/sfst/appendix_a.htmhttp://www.nhtsa.gov/people/injury/alcohol/sfst/appendix_a.htmhttp://www.nhtsa.gov/links/sid/ABCsBACWeb/page2.htmhttp://www.nhtsa.gov/links/sid/ABCsBACWeb/page2.htmhttp://www.nhtsa.gov/links/sid/ABCsBACWeb/page2.htmhttp://www.bactrack.com/pages/are-breathalyzers-accuratehttp://www.bactrack.com/pages/are-breathalyzers-accuratehttp://www.bactrack.com/pages/are-breathalyzers-accuratehttp://www.bactrack.com/pages/are-breathalyzers-accuratehttp://www.nhtsa.gov/links/sid/ABCsBACWeb/page2.htmhttp://www.nhtsa.gov/people/injury/alcohol/sfst/appendix_a.htmhttps://www.nolo.com/legal-encyclopedia/dui-dwi-defenses-32254.html


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p Defenses Employed in a Driving under the Influence Prosecution in Omaha www duiattorneysomaha com

About the Author

Thomas M. Petersen

Omaha DUI Attorney

For almost two decades Omaha attorney Thomas M.

Petersen of Petersen Law Offices has been defending

individuals charged with driving under the influence, or

DUI. As a result of his dedication to defending his clients,

Attorney Petersen was recently selected as one of the top

50 DUI attorneys in Omaha. If you have been charged

with an Omaha, Cass County, or Sarpy County, Omaha,

contact the Omaha DUI team today by calling 402-513-2180 or by filling out our online

contact form for a free evaluation of your case.

12020 Shamrock Plaza Suite #105Omaha, Omaha 68154

Phone: (402) 513-2180 (CALL 24/7)

Website:www.duiattorneysomaha.com
http://www.duiattorneysomaha.com/meet-tom-nebraska-dui-attorney/http://www.duiattorneysomaha.com/meet-tom-nebraska-dui-attorney/

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