Challenging The Evidence

The outcome of any Massachusetts drunk driving case depends upon the District Attorney's ability to prove you were operating a motor vehicle under the influence of alcohol or drugs, or that your blood alcohol content (BAC) was .08% or greater. The proof must be beyond a reasonable doubt.

The Commonwealth may use testimony by the police officer regarding his or her observations of your behavior such as slurred speech, clumsiness or confusion. Other evidence which is often used to demonstrate that you were driving drunk are the results of field sobriety tests and breath tests.

An aggressive and experienced DUI Defense Attorney should challenge each of these pieces of evidence to determine if it was legally obtained, properly gathered, and accurate.

Challenging the Initial Stop

The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures and requires that any search or seizure be based on probable cause. When a police officer arrests you under suspicion of drunk driving, that is considered a seizure under the law. If the police officer does not have probably cause to arrest you, your DUI Defense Attorney will likely challenge the arrest.

If you were stopped on a purely random basis, on an anonymous tip, or because of your race, ethnicity or another protected class, you may be able to challenge the stop - and all the evidence collected in association with same.

Challenging Unreliable Breathalyzer Tests

Breathalyzer tests can be inaccurate for a number of reasons, including that the test was given by someone not properly trained to administer the test, or that the machine was not properly calibrated, is faulty, or has other malfunctions or defects.

One of our DUI Defense Attorneys' biggest concerns is the concept of "BAC on the Rise." A person can blow a .08% or higher at the police station, but may have been at a .06% or .07% when he or she was pulled over. This occurs because of the time it takes for alcohol to absorb fully into the bloodstream. By the time the Breath Test is taken, the alcohol has absorbed further into the bloodstream.

Additionally, breathalyzers detect non-alcohol compounds, which are frequently mistaken for alcohol. Among the compounds most commonly mistaken for alcohol are those from paint, gasoline, etc.

Dentures can also affect mouth alcohol retention and create a particular problem for people, who have tongue or mouth piercings, braces, cavities, food impactions, orthodontic work or who have food particles trapped between their teeth.

A Defendant on a low-carbohydrate diet may also generate an erroneously high blood alcohol reading from the breath testing device. Similarly, those on high-protein diets like the Adkins diet produce ketosis - stored body fat which is transformed into energy.

Challenging Flawed Field Sobriety Tests

Field sobriety tests are used to provide law enforcement with evidence of impaired driving, but these tests are often administered improperly and the results can be affected by a number of factors other than alcohol or drug consumption.

Unfair traffic conditions such as the distraction of flashing lights and traffic driving by, cold temperatures or rain, unstable footwear such as high heels or boots, nervousness, or frustration - these are enough to invalidate the test if challenged properly.

Some experts claim that drivers who have physical problems are prevented from scoring perfectly on these tests. Alternatively, the person taking the test may have just been tired, or may have merely lacked the coordination needed in order to pass the test - in the police officer's subjective judgment.

Are Tests Designed to Make The Accused Fail?

If you do not understand each and every instruction and fail to do each part of the exercises perfectly, you could find yourself defending a DUI charge.

Our DUI Defense Attorneys see people all the time who fail tests for reasons other than alcohol or drugs. As Attorney Irwin M. Pollack, our Founder and Lead Attorney suggests, "Maybe, in reality, the officer sees what he wants to see and provides himself with all the ammunition he needs for his police report."

Thorough Cross-Examination of Law Enforcement
Officers Provides an Excellent Defense

Our DUI Defense Attorneys consider police training manuals one of our best assets. After we request the training records of the police officer who will be testifying, we know how he or she was trained and question the officer on the stand as to whether they follow the training regimen required by the National Highway Traffic Safety Administration (NHTSA) manuals. We ask questions such as:

• You have received extensive training during your career as a police officer, haven't you?
• A significant part of that training was devoted to DUI enforcement, wasn't it?
• Did you pass the DUI enforcement training?
• As a police officer, is it a requirement to stay up-to-date on your training?
• Do you make it a point to keep your training up-to-date?
• Are you up-to-date on your training?
• Are you taught how important it is to follow the training that you receive?
• And why is it important for the police to follow their training?

From this point, the officer is then asked to repeat the instructions given to the Defendant as it relates to each test. The officer can be impeached or questioned about his or her varying from any aspect of the instructions or procedure provided in the NHTSA manual.

Do Not Be Fooled Into Accepting an Unfavorable Plea Agreement

In many OUI/DUI cases, the police and state Prosecutor (the District Attorney) will tell an unrepresented Defendant that they have all the proof they need to get a conviction. Don't listen to them! Just because they claim to have "iron-clad" evidence that you were driving under the influence of alcohol or drugs, does not mean that you should simply give up and plead guilty.

Remember, the burden of proof is on the Prosecution, and with aggressive and experienced legal representation, it is possible to mount a determined legal challenge to the evidence.

Help - When You Need it the Most!
FREE Initial Consultation

Our DUI Defense Attorneys understand that people are arrested for drunk driving at all hours and need solid legal advice right away. When you need effective, strategic defense, contact us 7 days a week, 24 hours a day at (800) 782-1030. We answer our phones at night and on the weekend - we even meet clients on Sundays!