Common OVI Defenses

What Defenses are Available

Have Your Constitutional Rights Been Violated

The first question on my agenda when I first speak with a client is whether their constitutional rights have been violated, especially their Fourth Amendment rights to be free from unreasonable searches and seizures. There are two main aspects to these Fourth Amendment rights. First, did the police officer have reasonable suspicion to stop my client’s vehicle and second, was there probable cause for the arrest. It is not infrequent that the reason for pulling my client over is either incorrect or inaccurate. For example, I have seen cases where the officer wrote in his report that he initiated the stop because my client’s license plate illumination was not working. I then examine the dash cam video and the light is working. This provides powerful argument that the traffic stop violated my client’s constitutional rights and therefore all the evidence gathered after the stop should be suppressed.

The second aspect is probable cause. Just because an officer observes a traffic violation and notices an odor of a alcohol does not give him probable cause for an arrest. In order for the officer to establish probable cause for the arrest, he will conduct field sobriety tests. These are standardized tests formulated by the National Highway Traffic Safety Association (NHTSA). The officer must substantially comply with the NHTSA guidelines when conducting these tests and often the officer fails to do so. The arresting officer’s failure to comply with these guidelines may give rise to the defense that there was no probable cause for the arrest. You can visit NHTSA’s webiste. The following are links to videos that show how the field sobriety tests should be conducted.

It is also not uncommon that the officer’s reasons for arresting my client are inaccurate. For instance, the officer may note in his police report that my client’s speech was slurred and his or her eyes were bloodshot. However the booking room video and the mug shot sometimes show that such is not the case.

Failure to Comply with the Department of Health Guidelines Relevant to Breathalyzer Machines

The breatlyzer machines used by police departments must be calibrated in accordance with the Department of Health Guidelines. Failure to substantially comply with these guidelines give grounds to the legal argument that the breathalyzer results should be suppressed.

Clients sometimes have conditions that either prevent them from giving an adequate breath sample or skew the results of the machine. Such conditions include asthma, diabetes, gastro intestinal reflux disease, dental implants or even piercings inside the mouth that can cause retention of mouth alcohol. To get an idea of what your BAC would be after drinking, you can use the Drinkwheel.

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