DUI Defense
What are common legal defenses for DUI?
The common legal excuses or justifications for DUI would be such as the defense of necessity, the defense of entrapment, the defense of mistake of fact, or the defense of lawfully prescribed medication.
What is the 'necessity excuse' as it pertains to DUI?
The necessity excuse in a Driving Under the Influence (DUI) context would be a situation where a person had an urgent or desperate need to drive and did not have an alternative means of transportation. For example, suppose there is a mother who is intoxicated, she's in a remote location, she has a child, the child becomes very sick or injured, needs immediate medical attention, there's no time to get an ambulance, and so she puts the child in the car and drives just to get medical attention for the child. That is drunk driving if she's impaired, but nonetheless it may be excusable based upon the necessity of the situation.
What is a police entrapment and can it apply to a DUI arrest?
Police entrapment is when the police encourage or low or induce a person to commit the crime, they are not otherwise predispose to commit, it's rare to save this particular defense in a deal eye contact's, I do have one case in my career, which the situation is regularly part and person is clearly drunk. And the person is not even in the car, and the police officer came along and said "hey need to grab of your car" and the person said " look I'm a drunk you can see, I'm very in tired, desiccated, I don't want to get in car, don't want to drive, and the officer said " I'm telling you get out of the car and move your car" The person follow the officer's command, gone in the car, move on the car, sure enough the police officer round and the police officer arrested for the person drunk driving. That case will auto thrown out in a court because it was a clear example of the entrapment the crime of a drunk drive and the situation was induce by the police officer and subject would not otherwise committed it.
What is the 'mistake of fact' DUI defense?
Mistake Of Fact', as it applies to DUI, is when a person honestly and reasonably believes that they are not intoxicated. So, for example, somebody may be given a medication that they didn't realize they were given and start to drive, and not realize that they were experiencing impairment until they are pulled over. In that case, the person was driving while impaired, but nonetheless, honestly and reasonably, was unaware of it. And in that situation, most likely, the crime would be excusable.
How can medication be used as a DUI defense?
A medication can be used as a DUI defense if it is lawfully prescribed and the person was unaware that a side effect of the medication is that they would be impaired. Generally speaking, even a prescribed medication such as Vicodin impairs a person and can cause them to be prosecuted for DUI if they're driving under the influence of it. Sometimes a person may be prescribed a medication and was never advised that they should avoid driving or avoid operating heavy machinery while they're on the medication, and they take the medication and they drive. In that situation, the defense of lawful medication may apply and may excuse their DUI.
What is the DUI defense of rising blood alcohol?
Rising blood alcohol is the concept that when we consume alcohol, it takes a period of time to absorb into our blood stream and that time can be anywhere from 20 minutes to several hours, depending on numerous variables. What that means for example is if I drink enough alcohol to get me to a .12 Blood Alcohol Content (BAC), which is well over the legal limit, I'm not going to drink that alcohol and instantly be at a .12. I'm going to become a .01, .02, .04, .08, .09 until I rise to the level of being a .12. Often, people get pulled over for Driving Under the Influence (DUI) when they're leaving a bar, leaving a restaurant, or leaving a party. They've recently finished drinking and their BAC is still rising, but they are still absorbing their alcohol. So, for example they may get pulled over and it may be 45 minutes until they get to the police station and they take their breath test. When they take their breath test, there may be a reading of .12, but when they're actually behind the wheel they may have been a .06, because they were still absorbing their alcohol. What's important is that for legal purposes what counts is what was their BAC when they were actually behind the wheel and the subsequent reading, an hour later, 45 minutes later, is only significant in that it allows us to try to draw an inference as to what their BAC was when they were driving. So many times people may have a blood test or breath test that comes up well above the legal limit. But when we extrapolate backwards and figure out what their BAC was at the time of driving, usually we have a range in which it may have reasonably been at the time of driving, and as long as the lower end of that range is below the legal limit, then they're not guilty. For example, the range might be .06 to .10, well the lower end of that is below the .08 threshold, and so they're not guilty.
