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Wednesday, June 4, 2014

DUI Cases - so you did not provide a breath sample (no blow)?

At Hanover Law, we defend a variety of criminal cases -- including DUI's. When it comes to drinking, it is not uncommon to have a client indicate they refused to do a breath test. I wanted to take a few moments today to discuss breath tests, and the requirements for testing. What happens if you don't blow into "the little tube", and how do you defend these cases?

First, a there are code standards and definitions that are important in a DUI case.
Code Section/Term Definition/Meaning
DUI Driving Under the Influence
OWI Operating While Impaired
SFST Standard Field Sobriety Test
NHTSA National Highway Traffic Safety Administration - establishes training guidelines for SFST
Code: 50-2206.01 Definition of intoxicated and impaired
Code: 50-2206.11 Definition of DUI offense
Code: 50-2206.14 Definition of OWI offense
Code: 50-2206.52 Admissibility of breath-tests taken at the police station
Code: 50-1904.01 Admissibility of curb-side breath tests

Next, it is important to understand that intoxication does NOT have to be proven by a machine. Even a "slight impairment" that renders a person less likely to drive safely gives rise to a valid charge for DUI and/or OWI (see Karamychev v. District of Columbia, 772 A.2d 806, (D.C. App., 2001)). What is the difference between these two charges? Actually, very little. Traditionally, DUI was charged when there was a definitive knowledge as to the level of intoxication (i.e. the individual had "blown into the machine" at the station, and there was an actual result). OWI was used when the amount was not known, or the ability to prove the amount was poor. In 2014, DC revised the DUI statutes so that OWI and DUI are almost identical. You should expect to see your client charged with both, however, and the prosecution making the argument that even if DUI does not work, OWI is a lesser but different charge which can still be had.

The strategy for beating a no-blow DUI case is the same as beating a regular DUI, with one twist. Although failure to provide a breath sample is manifest expression of "consciousness of guilt" (see Stevenson v. District of Columbia, 562 A.2d 622 (D.C. App. 1989)), which when combined with probable cause (failure of a curb side SFST) is enough to convict, frequently, the police are often not prepared to "prove the no-blow". If you can show that the police cannot prove your client failed to provide a breath sample at the station, THEN you have an excellent argument that probable cause alone is not enough to convict.

You want to find the "Consent to Testing" form -- the PD number various depending on the version of the form used. If the government has not supplied this form, you must request a copy. Under DC law, your client must be informed of the consequences of his/her failure to blow if the government intends to use that against them at trial.

On this "Consent" form, look for three things. First, look for your client's signature. If it is not there, or the paper states "REFUSED" immediately demand the government provide video evidence that your client refused the test. Because this can be very time sensitive (police stations do not often keep video for more than a few weeks), you must make a demand, on the record, for any and all video evidence of your client refusing to sign.

Secondly, look for the signature of the officer that was to administer the test. Was this the same officer who did the curb-side SFST? If not, then you want to bring this up at the trial, and get the form thrown out for failure to provide the custodian of the form (the officer) for cross examination (i.e. it is hearsay). (see, Michigan v. Bryant, 131 S. Ct. 1143 (2011) and its progeny -- stating that if the police/prosecution want to admit statements made by the defendant (such as a signed form, in this case), they must present the individual who took the information under the guise of the confrontation clause of the 6th amendment).

Finally, on DC "Consent" forms, there is a space for a "witness". Question this thoroughly. Usually, the witness is not even present when the form is completed, and just signs the document in the course of regular administrative duties. Jury is out (no pun intended!) on whether the failure/misrepresentation of a "witness" is sufficient to invalidate the form, but it should be brought forth and challenged before the court. How?

If the witness is the officer who was at the scene, make sure to compare any "statements" made by the defendant during the "Consent" form refusal with statements included on the witness' PD-163 (police report). If the witness never said a statement was made by the defendant, and the subscribing officer (who signed the "Consent" form) indicates a statement was made in the presence of the witness -- we have a contradiction that should be exposed and hammered.

Finally, NEVER forget to quiz the SFST officer. Under DC law, she must be an expert, and she must show she has the requisite knowledge to deduce the intoxication level of the individual she/he is testing. You need the expert statements prior to trial. Also, be sure to study the OAG (Office of the Attorney General) training handbook for SFST. VERY IMPORTANT. Quiz the expert and be ready to show how the testing was done improperly.

Do you have a DUI trial upcoming? Need help!? Call us. 1-800-579-9864.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
888 16th St., NW Suite 800
Washington, DC 20006
5200 Prestwick Dr.
Fairfax, VA 22030
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 Charles Hatley, Esq.
Leigh Snyder, Esq.

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