DUI Defense Strategies

Field Sobriety TestOur clients know that a DUI conviction can be a life changing event. Their concerns about employment, loss of license and jail time motivate us to constantly improve our techniques and to constantly find new solutions and defenses to DUI prosecution. Remember, a DUI arrest is not a DUI conviction--even a test result over the legal limit can be challenged.

As an experienced DUI law firm, our job is to become familiar with your case and to apply our knowledge and skill to the task of dismissing the DUI. The burden of proof is on the prosecutor and you are innocent until proven guilty in a court of law. We take our work very seriously and we will make the prosecutor work hard to prove their case. Georgia DUI Law requires that all aspects of your charges must be proven, beyond a reasonable doubt, in order to find you guilty. This includes a legitimate and lawful basis for the stop of your vehicle, proper field conduct by the arresting officer, legal detention, properly administered Field Sobriety Tests, arrest based upon probable cause and accurate protocol for breathalyzer or blood tests. Any errors by police officers, medical personnel or prosecutors could be reasons to force the prosecutor�s office to dismiss or reduce your charges.

Listed below are just some of the common areas which we explore for a DUI defense strategy:

Intoxilyzer 5000 Problems and Faulty Test Results

Two of the biggest problems with the Intoxilyzer 5000 are, first, that the machine tests breath not blood, and second, that I-5K tests the alcohol in an air sample, but it doesn’t know where from where it got the sample.

1. Partition Error/ Source Code
Thanks to TV shows like CSI, most people have finally got over blind trust of science and technology. We still love it, but especially when people learn that the Intoxilyzer 5000 was designed and built 20 years ago � when the fastest computers had a Pentium 386 processor, people begin to open their minds to the possibility that the machine is really nothing magic. First, consider that the the I-5k measures blood alcohol from a breath sample. Compare that to a test where your blood is drawn. A blood draw test determines the actual amount of alcohol in your blood. So, if you are getting blood alcohol from a breath sample, then it is necessary to apply a mathematical ratio to breath alcohol to get blood alcohol. With the I-5K, the same ratio is used for everyone, but of course no two people are the same.

The I-5K manufacturer used a mythological �average� person and applied that number to everyone. There is no button on the I-5k to input sex, age, weight, body-fat, or lung capacity. Most experts agree that the Intox 5000 has a 20%-70% margin or error. So, if the I-5K registered your BAC at .10 it could easily have been as low as .03 (way under the legal limit) or .17 (way over the legal limit). The whole problem is further aggravated by the fact that the manufacturers of the I-5K have never released their source codes. So we don�t really even know what equations they are utilizing. Compare that to a scientist who claimed to get a particular result, but wouldn�t tell anyone how it was derived. That�s not science.

2. Slope detector, Heartburn, and Residual Mouth Alcohol
Sample contamination is a major problem. The air in a breath sample is supposed to come entirely from your lungs, but it could also come from the room you are sitting in, or your stomach. Additionally, the air could be �infected� with raw alcohol from your mouth or your stomach. Practically speaking, regular heartburn means that your oesophagus is not closing completely. Thus, air and stomach matter � acid and alcohol if you�ve had a drink, will infect the sample. The I-5k was never designed to screen for consistent stomach air. Mouth alcohol, even the minuscule amounts that come from a belch or a hiccup contaminate an air sample. Two mechanisms have been used to combat this problem. First, the I-5k is supposed to have a �Slope Detector� that in theory can tell when a sample is infected. But it doesn�t work, it just doesn�t! Anyone who has tested the machine knows that it�s easy to trick�a steady, slow blow fools it every time. The second �fix� is the mandatory observation period. The I-5K manuals claim that an officer should observe a subject for at least 20 minutes before administering a test. That�s a total joke because police officers never do it. Secondly, even if they did conduct a 20 minute observation, it wouldn�t work because you can�t see a small belch or heartburn.

Illegal Traffic Stops/Probable Cause

A police officer must have reasonable cause to initiate a traffic stop. Generally this means that you have done something to generate the suspicion of the arresting officer. Even if the arresting officer "had reasonable suspicion" there are times when an argument could be made that the officer mistook the cause of his suspicion. A sober driver who is fatigued or sneezes may weave while driving, so weaving does not necessarily indicate that a driver is impaired.

Example: A Cobb DUI Task Force Officer stopped our client for making an illegal u-turn. We went out to the scene of the traffic stop and shot video tape of the intersection. It was clear from the video that her traffic maneuver was perfectly safe, and legal�a u-turn can be made anytime it is safe to do so provided that it is not specifically prohibited by law. The judge agreed and threw out the entire case because there was no legitimate basis for the initial stop of her vehicle.

Field Sobriety Test Mistakes

Field sobriety tests are generally designed to cause a person to fail and often a police officer will require multiple sobriety tests in order to create a situation where a person fails the test. Field Sobriety Tests are Standardized. That means there is a very precise process which must be followed in order to build a case for prosecution. If field sobriety tests are administered improperly, then their value as predictive tools is diminished. Everyone know that no two people are the same, yet field sobriety tests are graded the same for everyone.

Example: Our client performed field sobriety tests, and the officer testified that he failed the tests. We pointed out that the officer failed the tests too, because he didn�t follow his own training when administering the tests. For instance, our client was seriously over weight and the officer required him to perform the test without a coat when it was very cold.

Faulty Arrest Procedures

Common problems with an arrest are failure to read a suspect their Miranda Rights , failing to read implied consent or reading it improperly or too early or too late. Sometimes arrests are made without sufficient probable cause. Police Officers often call routine physical limitations such as inability to balance on one leg as "proof of intoxication". Even physical conditions such as bloodshot eyes could be the result of fatigue and slurred speech are often just a foreign accent or a health problem. A good DUI Lawyer can point out that much of the evidence used to proof DUI is really just common attributes of a nervous driver.

Example: An Austell Police Officer stopped our client for running a stop sign and reckless driving. Even though she already under arrest, the officer failed to read her the Miranda Warning. Nevertheless, he had her perform field sobriety test and obtained incriminating statements. The Judge threw out all the evidence regarding field sobriety tests and all of her statements. The Prosecutors were forced to dismiss the DUI.

Suppressing Evidence

A Motion to Suppress is the First document that we file in every DUI case. A Motion is really just a written request. A motion could be filed for anything. Reprinted below is our “standard dui motion to suppress.” This Motion is filed early in the case, often before we have copies of police reports or video. Often we will amend the motion as we learn more about the particulars of a case. A motion to suppress could be filed for almost any reason.

Example: A Cherokee County Sheriff�s Deputy performed the Horizontal Gaze Nystagmous test on our client. We filed a Motion to Suppress his conclusion that our client failed the test. We argued that the results should be suppressed because the officer failed to administer the test properly. Nystagmous (involuntary jerking of the eyes) is a scientifically validated response to alcohol consumption. But if the test isn�t performed according to standardized procedures, then the test results are not reliable.

For more information on the effets of Alcohol Consumption, click here for a calculator.

Blood Alcohol Content Calculator

We are very experienced and skilled at taking a prosecutors case and rendering it ineffective. We will take your DUI as seriously as you do, and prepare a sound legal defense using proven DUI defense strategies.

Georgia DUI Information
DUI 10 Day Rule
DUI Success Stories The Semrau Law Firm
Were Your DUI Test Results Correct?

Cobb County Bar Association www.cobbcountybar.org


State Bar of Georgia

"I've worked with Mr. Semrau on two separate situations and the results have been great. I personally appreciate his willingness to spend the extra time to explain things and discuss the situation. His direct involvement and passion for success is what made the difference in the outcomes. I would definitely recommend Mr. Semrau and gladly work with him again. Thanks Scott!"