Kelly Moore: Can I Beat A DUI If I Was Over The Limit?

First, you must have the courage to stand up and fight for yourself and not just hang your head and plead guilty. Second, you must use the tools available to you to fight the charges. The tools include not only a toolbox of legal defenses but the skill and knowledge to use the facts of your case to illuminate where reasonable doubt exists or to even prove innocence. Legal motions, objections, and arguments are a great way to beat a DUI. Your case should be analyzed from the very beginning for legal flaws, which have nothing to do with whether you were over the legal limit. There are strict rules controlling how a DUI case is to be handled in court, and, if the rules are broken, a judge can dismiss your case. From the time of arrest, the clock starts running. The officers must process you through the system and release you or bring you before a judge. If they do not do this correctly, you may be able to beat the case. Another legal clock starts running after you have been arraigned or advised of the charges against you, and you have pleaded not guilty. If you have been released on bail or your own recognizance (O.R.), the prosecutor has 45 days to take you to trial, or the case should be dismissed. Many times, the district attorney cannot get their case together in time, and they are forced to ask the judge to dismiss the charges.

At other times, the case can be dismissed when the evidence of your alleged wrongdoing is suppressed or thrown out. Defense attorneys can file motions to request that judges suppress evidence when it is improperly obtained. For example, if the cops make an illegal profile stop of someone without the proper reasonable suspicion, the judge can find that the cop’s behavior was inappropriate. In such a case, the judge should grant the defense attorney’s request to throw out the observations of field sobriety tests and the breath or blood test. When this type of motion is granted, the prosecutor does not have the evidence to prove guilt beyond a reasonable doubt. At that point, the case should be dismissed. Trial is another great time to beat your DUI, even if your test result shows you as being over the legal limit. Your defense attorney is at home in a courtroom setting; the cops are not. The cops want to be out in the field making arrests, not in the courtroom being looked at under the microscope of cross-examination. When you question the cop about how he/she actually performed their investigation compared to how they were supposed to have done so, the cops lose credibility.

The cop’s loss of credibility has nothing to do with the defendant or their alcohol level. When the officer loses credibility, defendants beat a DUI charge. During trial, a good defense attorney will be able to prevent unreliable or irrelevant testimony from getting to the jury. Prosecutors often try to get the ugly evidence of a chemical test result in front of the jury. This chemical test evidence is very technical and usually requires that several witnesses testify to properly lay a foundation for the result. Prosecutors are often unable to prove that the chemical tests given are reliable or trustworthy. If the test is not deemed trustworthy, a judge will not let a jury hear the evidence. With no chemical test result in evidence, you can beat the DUI. Even if the breath or blood tests are shown to the jury, the evidence still needs to be explained. A chemical test that is given an hour or so after the actual driving took place does not tell anyone what the actual alcohol level was at the time of driving. The district attorney needs to prove that a person was driving, and that at the time they were driving, they were over the legal limit. Most of the time, the necessary information does not exist or is not reliable, and the experts cannot come to an agreement about what the alcohol level was at the time of driving.

No agreement on what the alcohol level was means that you just beat your DUI, even though you were technically over the legal limit at the time of the test. The proper functioning of the breath or blood testing equipment is another area where a lot of DUI cases are won. The breath or blood testing machines that are used (such as the breathalyzer) have strict regulations controlling how and when they are maintained, calibrated, and checked for accuracy. The technicians maintaining these machines may not be properly trained, or the city or county may not have the money to pay for proper maintenance or repairs. If the testing equipment does not work properly, the results may not be relied upon. If the proper maintenance protocols are not followed, you can beat your dui irrespective of alcohol level. Many people wrongly think that because they were arrested, they are guilty. This is simply not true, and many people are pleasantly surprised to find out that even though they were told that their alcohol level was over the legal limit, in reality, it was not, and they are not guilty.
The officer must have probable cause to stop, detain, or arrest you for DUI. If there was no probable cause the evidence, and the case may get dismissed. The police must have a reasonable suspicion or reasonable belief that you are engaged in a criminal activity before they can stop your car, conduct a DUI investigation, or arrest you for a DUI in Utah.

This reasonable belief is a standard known as probable cause. If an officer does not have the required probable cause before engaging in any one of these stages, any evidence that is obtained as a result of that illegal procedure will be suppressed. When evidence is suppressed, it means that the prosecution cannot use it against you. This means that evidence obtained without probable cause usually results in reduced or dismissed Utah DUI charges. For example, if you were driving at 2:05a.m and committed no traffic violation but were pulled over for simply being on the road after bar time any evidence obtained after the stop could not be used against you.

FAULTY AND UNRELIABLE BREATH TESTS

The DUI breath tests used in Utah have many flaws. These tests are subject to some of the following problems:

• Improper use by the police

• Physiological conditions (gastro esophageal reflux disease)

• Instrument malfunction

• Failure to observe the defendant prior to the test.

DUI breath testing is the most common way to measure a defendant’s BAC but it is not always an accurate because of the fact that a dui breath test doesn’t directly measure the amount of alcohol in your blood. It measures the amount of alcohol present in your breath and converts that amount to determine the amount of alcohol in your blood. As a result, DUI breath testing is susceptible to a variety of outside influences that can generate an erroneously high BAC reading. Dui breath testing instruments are designed to capture a sample of breath from your deep lung tissue; this is known as “alveolar air.” Residual alcohol can linger in the mouth for some of the following reasons:

• Dental work trapped small amounts of alcohol-soaked food in your teeth,

• You burped or regurgitated, or

• You suffer from acid reflux, heartburn, or GERD.

Medical conditions

Medical conditions such as gastro esophageal reflux disease (more commonly referred to as “GERD”), acid reflux, or heartburn can contaminate DUI breath test results. GERD, acid reflux, and heartburn are all medical conditions that create possible mouth alcohol situations. This is because these conditions produce a flow of acid that travels from the stomach into the mouth. When this occurs during a DUI breathe test or just prior, the alcohol that travels from your stomach to your mouth disguises the deep lung air that the breath testing instrument is intended to measure Conditions such as diabetes that is low-carbohydrate, high-protein, or hypoglycemia can trick a DUI breath test and result in a false high BAC. Medical conditions such as diabetes and hypoglycemia are capable of self-producing isopropyl alcohol. This is because bodies that are deprived of carbohydrates turn to stored fat for energy. This process produces ketones. Ketones, when eliminated from the body through breath and urine, convert into isopropyl alcohol. This creates a problem with the commonly used breath tests because most Utah DUI breath testing instruments aren’t sophisticated enough to distinguish between this self-produced isopropyl alcohol and ethyl alcohol (the type of alcohol that we drink). As a result, Diabetes or hypoglycemia can trick a DUI breath testing instrument into producing a falsely high BAC.

Rising Blood Alcohol

Rising blood alcohol means that your BAC was a higher level when you took the test than it was when you were actually driving. Alcohol takes a certain amount of time, typically between 50 minutes and three hours, to absorb into your system. For example, if you had just recently finished drinking and were investigated for DUI shortly thereafter your alcohol may not have reached its peak absorption rate. When this is the case, your blood alcohol level is still rising, which can cause a false high DUI BAC result. This occurs because your BAC at the time of your blood or breath test is irrelevant. What is relevant is what your BAC was at the time of driving. Just because you have a BAC that is above the legal limit when you submit to a DUI chemical test, does not mean that is what your BAC was at the time of driving. Prosecutors assume that everyone is beyond their peak absorption phase when they submit to DUI chemical testing. However, we know that this isn’t always the case and that rising blood alcohol is a very legitimate DUI defense. This rising blood alcohol defense applies to both DUI blood testing and DUI breath testing.

Three primary factors cause most people to throw in the towel and not fight their charges for driving under the influence of alcohol or driving while intoxicated by drugs. Those three factors are

• Believing that they cannot win the case, or get a DUI reduced to reckless driving or other less serious charge;

• going to the wrong DUI lawyer, and hiring an attorney for a lower fee, but whose legal career is only distinguished by the huge volume of DUI guilty pleas he or she has racked up, as compared to a handful if any successful trials;

• The DUI suspect is never apprised by the knee pad attorney of the lifelong DUI penalties and DUI consequences, before he or she make their fatal mistake of pleading guilty. (a “knee pad attorney” is a euphemism for a criminal defense lawyer who symbolically enters court with knee pads on, so he or she can get on bended knee to beg the prosecutor for a lighter jail sentence or low fine for the client that is about to be pleaded guilty.) In all driving while intoxicated cases, the seasoned prosecutors in your courtroom know who these folks are, and are confident that any threats of that attorney taking the case to trial are mere vacant threats and puffery.

The DUI penalties and lifelong DUI consequences that exist in most states will haunt the person who gets talked into taking the easy route to resolve their plea. The truth is that an unrepresented person can plead himself or herself guilty, as easily as the knee pad lawyer. However, to beat a DUI at trial, the accused client facing driving under the influence charges needs to diligently research and interview all of the best DUI attorneys in his or her marketplace.

The state of Utah uses the term ‘driving under the influence’ rather than the term driving while intoxicated (DWI) that is used by several other states. The recent change in Utah DUI laws means it is easy to get caught out. In March 2017, Utah lowered the dui limit from 0.08% to 0.05%.

DUI First Offense

Your first DUI in Utah can come unexpectedly which means an experienced Utah DUI attorney is a must. Did you know that you can be arrested for DUI when you are seated in the car, in possession of the ignition key, or by touching the steering wheel or controls? In other words, you could be hit with a charge even if you’re not driving the vehicle at the time. It doesn’t even matter if you’re asleep or awake! When charged with your first DUI in Utah, you face the following possible punishments:

• Mandatory two-day jail term or 48-hours of community service.

• Potential 180-day prison term.

• 120-day license suspension.

• Installation of an ignition interlock device for a year if your blood alcohol limit (BAC) is 0.16% or more.

• Fines of at least $1,310.

DUI Second Offense

If you face a 2nd DUI charge in Utah, the punishments become predictably severe:

• Mandatory 10-day jail sentence or 5 days in prison and 30 hours of electronic monitoring.

• License revoked for two years.

• Maximum 180 days in prison.

• Two years of ignition interlock devices if you have been convicted within the last ten years.

• Minimum fines of $1,560.

DUI Third Offense

A 3rd DUI charge in Utah is potentially major trouble:

• Mandatory 62-day prison term.

• Maximum of five years in a penitentiary.

• License revoked for two years.

• Two years of Ignition interlock device

• if you have been convicted within the last ten years.

• Minimum fines of $2,580.

DUI License Suspension Utah

If you are reliant on your vehicle for work, a Utah driver’s license suspension is a disaster that could cost you a job. Your 1st DUI in Utah is a guaranteed driver’s license suspension of four months. Successive DUI convictions will see your license revoked for two years.

DUI Lawyer Free Consultation

When you need a criminal defense lawyer to fight your DUI charges, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We can help you with drug crimes, sex crimes, theft crimes, property crimes, white collar crimes, and more. We want to help you.