{"id":286656,"date":"2016-04-04T10:45:08","date_gmt":"2016-04-04T15:45:08","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-law\/dui\/cases\/defenses-to-drunk-driving.html"},"modified":"2025-07-14T09:00:00","modified_gmt":"2025-07-14T14:00:00","slug":"defenses-to-drunk-driving","status":"publish","type":"page","link":"https:\/\/www.findlaw.com\/dui\/cases\/defenses-to-drunk-driving.html","title":{"rendered":"DUI Defense Strategies"},"content":{"rendered":"\n
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DUI Defense Strategies<\/h1>\n\n
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\n By Christie Nicholson, J.D.<\/a> | Legally reviewed by Laura Temme, Esq.<\/a>\n | Last updated\n
\n \n <\/i>\n Legally Reviewed\n <\/summary>\n\n
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This article has been written and reviewed for legal accuracy, clarity, and style by FindLaw\u2019s team of legal writers and attorneys<\/a> and in accordance with our editorial standards<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n\n

\n \n <\/i>\n Fact-Checked\n <\/summary>\n\n
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The last updated date refers to the last time this article was reviewed by FindLaw or one of our contributing authors<\/a>. We make every effort to keep our articles updated. For information regarding a specific legal issue affecting you, please contact an attorney in your area<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n<\/section>\n\n\n

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Common DUI <\/span>defense<\/span> strategies<\/span> involve challenging the legality of the traffic stop<\/span>, field sobriety and breathalyzer<\/span> test results<\/span>, and the accuracy of chemical tests<\/span>. DUI attorneys<\/span> may also argue the rising BAC<\/span> defense, asserting that a client’s BAC<\/span> was legal while driving but rose by the time testing occurred. Successful defenses can help avoid or lower the penalties of DUI charges<\/span>, such as jail time<\/span>, fines, and license suspension<\/span>.<\/p>\n\n <\/div>\n\n\n\n

Individuals facing charges for driving under the influence of alcohol (DUI) should know that there are severe penalties for a DUI conviction. This is why it\u2019s important to meet with a local DUI attorney as soon as possible after your arrest. This way, they can review your case and develop a strong legal defense strategy sooner rather than later.<\/p>\n

Many people don\u2019t realize that even if your blood alcohol content<\/a> (BAC) is higher than your state\u2019s legal limit, that doesn\u2019t guarantee a conviction for DUI. Even in DUI cases where the state\u2019s evidence seems strong, you have the right to mount a legal defense.<\/p>\n

Here, we\u2019ll discuss the common legal defenses to drunk driving, including contesting the traffic stop, challenging the results of field sobriety tests<\/a>, breathalyzer readings, and more.<\/p>\n

If you\u2019re currently fighting DUI or DWI charges, you should contact a local criminal defense attorney<\/a> right away. They can help protect your constitutional rights and craft a defense based on your unique case.<\/p>\n

Do I Need a DUI Defense Lawyer?<\/h2>\n

People facing DUI charges should do whatever they can to achieve the best possible outcome. This usually means that they hire a strong defense attorney to handle their DUI case. This is because experienced DUI attorneys<\/a> can develop a strong defense strategy by reading the police report, watching the officer\u2019s body cams and dash cam footage, and speaking with eyewitnesses.<\/p>\n

An attorney with experience handling DUI cases knows which defenses are most likely to work in a court of law. Furthermore, they have a working relationship with the local prosecutors and have a much better chance of negotiating a favorable plea bargain<\/a> than a defendant representing themselves does.<\/p>\n

You may choose an attorney to hire based on your preferences. Otherwise, a public defender<\/a> may be appointed to your case.<\/p>\n

Common DUI Defense Strategies<\/h2>\n

One of the reasons so many motorists facing DUI charges<\/a> retain a criminal defense lawyer is that they know how serious these charges are. They also realize that they\u2019re in over their heads when it comes to understanding the law and coming up with a strong legal defense.<\/p>\n

If the state convicts you of DUI\/DWI, you\u2019ll face the possibility of jail time, fines, a driver\u2019s license suspension<\/a>, and other penalties. Negotiating a plea bargain with the prosecutor can mean the difference between spending months (or years) in jail and walking free.<\/p>\n

Below, we discuss some of the more common defenses experienced DUI<\/a> attorneys assert.<\/p>\n

Legality of the Initial Traffic Stop<\/h3>\n

The police must have reasonable suspicion<\/a> that you\u2019ve violated a traffic law or other criminal law before they pull you over. Even with a routine traffic violation, the arresting officer must demonstrate that they had a valid reason for pulling you over. Your DUI lawyer may argue that the police didn\u2019t have cause to pull you over to begin with.<\/p>\n

The police must also demonstrate that they had probable cause<\/a> to arrest you for DUI. The burden of probable cause is not difficult to meet. As long as the arresting officer can show that you appeared to be under the influence of alcohol or drugs, the arrest will be lawful.<\/p>\n

Illegal Search and Seizure<\/h3>\n

Under the Fourth Amendment<\/a> to the U.S. Constitution<\/a>, individuals have a constitutional right against unlawful searches and seizures. If the police pull a vehicle over without reasonable suspicion that they have violated the law, the traffic stop may be unconstitutional.<\/p>\n

By asking you to submit to a breathalyzer test<\/a>, the police are technically conducting a search. If they do not conduct themselves in a lawful manner, your attorney will challenge the DUI arrest and, therefore, the DUI charges.<\/p>\n

Other rights derive from case law, such as the right to hear your Miranda warnings<\/a> at the time of your arrest. If police arrest you and don’t read you your Miranda rights, your criminal defense attorney can file a motion asking the judge to omit any statements you made to police at the time of your arrest.<\/p>\n

Incorrect Administration of the Field Sobriety Test<\/h3>\n

All law enforcement agencies have policies and procedures on how to administer a lawful FST. If the officer conducting your DUI investigation fails to administer the test correctly, you can challenge the results<\/a> of that test. If the judge agrees, the prosecution will have to remove the results of the test from their case against you.<\/p>\n

Accuracy of the Breath Test<\/h3>\n

Breathalyzer tests are generally accurate when administered and calibrated correctly. It will be difficult to convince a judge or jury that the breath testing device the officers used at the station was not working properly. However, there are other ways to challenge the accuracy of a breathalyzer test.<\/p>\n

One issue your DUI attorney may raise is that the breath test results were inaccurate because the preliminary breath test (PBT) used in the field was not functioning properly. They can also submit evidence showing the officer didn\u2019t administer the PBT properly.<\/p>\n

If part of the DUI investigation involved a chemical test, such as a blood test or urine test, your criminal defense attorney can argue that the machine did not undergo the necessary calibration.<\/p>\n

If records show that the law enforcement agency or hospital did not perform the required calibration of the chemical test equipment<\/a>, the judge may not allow the prosecutor to use the test results in court.<\/p>\n

Rising BAC<\/h3>\n

An interesting defense strategy some attorneys have used is that their client\u2019s BAC increased between the time they were driving and the time the police officer administered the breath test. It is theoretically possible that a person\u2019s BAC was under the legal limit at the time of the traffic stop and only rose above the legal limit during the tests at the station.<\/p>\n

This defense is difficult to assert as the state will argue that there was a high likelihood that you would have still been driving with the higher BAC had the traffic stop not taken place. Since the purpose of DUI laws is to help keep the roads safe, the state\u2019s argument may hold water with the judge and jury.<\/p>\n

Are DUI Checkpoints Legal?<\/h2>\n

Some people believe that DUI checkpoints<\/a> are unconstitutional. And it’s true that some states do not use them. However, the courts have held that, as long as law enforcement personnel abide by certain rules, they can install and operate a DUI checkpoint.<\/p>\n

If the police stop your motor vehicle at a checkpoint, the same rules apply as if it were an ordinary traffic stop. Of course, since it is a DUI checkpoint, the police do not need reasonable suspicion<\/a> to stop drivers for an inspection.<\/p>\n

If the officers manning the checkpoint believe that you are operating your motor vehicle under an alcohol or drug impairment, they will conduct the same tests they would conduct if you were pulled over on a road or highway.<\/p>\n

These tests include:<\/p>\n