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How to Beat A DUI Even Though You Failed the Breath TestWhen people call me for a legal consultation, I often hear: "I failed the breath test, shouldn't I just plead guilty? No, you shouldn't. At least not without considering many other factors about how your case may still be very winnable.
In order to be found guilty of a DUI, you have to be legally stopped while driving, the government has to prove that you were operating a motor vehicle, on a public way, while you were under the influence of alcohol. Here are some ways you can avoid being convicted for DUI in a breath test case. 1. Challenge the Legality of the Stop.The police must have a legitimate and specific reason to pull you over and subject you to questioning and tests. I recently had a case in the Framingham District Court where my client was stopped at a sobriety checkpoint. The police have to follow certain rules and how they set up a checkpoint, and in how they direct people into the area to perform field sobriety tests. In this case, the trooper observed slow speech, bloodshot glassy eyes, but no other indication of impairment. I argued that that was not enough evidence to as my client to take field sobriety tests, and then later take a breath test and fail. The judge dismissed the case so the fact that my client had failed breath test did matter. 2. Challenge Operation of a Motor Vehicle.If the Commonwealth can't prove you were operating a motor vehicle in the first place, it doesn't really matter if they can prove that you failed the breath test and were intoxicated. I have had numerous cases where my client was found intoxicated near a car. If the police suspect that you are drunk and may have driven, they will often arrest you, even if they didn't see you behind the wheel. If they can't prove that the car was recently driven and that you were the one driving it, that doesn't matter what your blood alcohol level might have been. There is no law against being drunk near a car. 3. Argue That You Got Drunk After You Drove, But Not While You Were Driving.I had a trial in Pittsfield in July 2010 where my client was in an accident, drove back to his girlfriend's house, and then approximately 20 minutes later the police arrived and found him intoxicated. After being arrested and taken back to the police station, he took the breath test and blew a .19. At the trial his girlfriend testified that after he got back to her house he started downing shots. The jury did the right thing and found him not guilty. 4. Prevent the Breath Test Results From Being Used Against You in Court.In order to use DUI breath test results against you at trial, the prosecution has to prove that they follow certain procedures, and often have to bring in witnesses to show this. If you challenge them, sometimes they are unable to do this. I had a case in August of 2008 where my client blew a .15, but they were unable to follow the proper procedures to use the evidence against them, so then we had a drunk driving case without any breath test results. The judge ended up finding my client not guilty. 5. Argue That The Number Is Wrong.In the United States, we don't have trial by machine, we have trial by jury. Just because a machine spits out a number does not mean that the number is scientifically reliable. There are many reasons why the breath test results may not be reliable, there may be an issue with a particular machine, the machine assumes that everybody is average, and my client may not be, or my client may have a medical condition which affects the breath test results. Sometimes these defenses require us to hire a breath test expert to figure out the best reason not to rely on the results. I had a case in October 2008, where my client blew a .10, my expert testified the number was not reliable, and the jury seems to think so too, and found my client not guilty. Failed a breath test and charged with drunk driving? Call me now for a free consultation on your Massachusetts OUI case, in any district court. Attorney Russell Matson
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Generally speaking, it is easier to win a case when you have refused the breath test
rather than when you have taken the test and failed.
It is also true that just because you have been arrested does not
mean you are going to be found guilty, and just because you have failed
the breath test does not mean you are going to be found guilty.