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Why is Defending a DUI so complicated?

 

This article is not intended as advice for your specific matter.  Rather, it is a general article about Nevada law.  If you have questions about your particular case, please call Mueller, Hinds and Associates, Chtd. immediately at (702) 940-1234.  This information is valid as of July 24, 2017.

What is so complicated about defending a Driving Under the Influence case in Nevada and why should I hire an experienced criminal defense attorney?

Most criminal cases are straightforward and although they require a lawyer, they do not necessarily require a lawyer that has extensive experience in defending them. Theft cases come down to whether or not the State can prove that the defendant had the intent to permanently deprive. Murder cases depend on whether the defendant had the intent to kill or a malignant heart.

DUI cases combine factual issues with legal issues with scientific issues and thus require an experienced, skilled attorney to defend against them.

TRAFFIC STOP

The first question that a skilled DUI lawyer will ask is whether the police made a lawful stop. Why? Because where the police seize someone or gather evidence unreasonably in violation of the Fourth Amendment, the evidence can be suppressed or thrown out of court under the exclusionary rule. Weeks v. United States, 232 U.S. 383 (1914) (reversing the conviction based on the exclusionary rule); Mapp v. Ohio, 367 U.S. 643 (1961) (applying the exclusionary rule to the States).

What is a lawful stop? The police can stop a car for any reason that amounts to probable cause for a traffic violation, even if no reasonable officer would stop a car for that violation and even if that traffic violation was a “pretext” or excuse for stopping the car unrelated to the actual traffic violation. Whren v. United States, 116 S.Ct. 1769 (1996).

The police are obviously aware of these laws and know how to skirt them, so what can we do? Experienced criminal defense lawyers know that an investigation is key to understanding the holes in a case. In Clark County almost all of the police officers have body worn cameras or dash mounted cameras. The best criminal defense attorneys watch these videos which can be hours long and look for inconsistencies or contradictions between what the police say caused them to stop the vehicle and what the video shows. This is a critical part of the investigation that many attorneys skip and most police officers will never expect to be watched. When police officers believe they won’t be seen, they can take liberties with their power. Hire an experienced criminal defense attorney that will comb through the reasons for the traffic stop and video for confirmation or contradiction.

DMV HEARING

The next step in your criminal case won’t happen in a criminal court and will often be overlooked by less experienced criminal defense attorneys – the DMV hearing. At some point after your arrest, you will receive a notice from the DMV that your license will be suspended. Do not ignore this notice or allow your attorney to ignore that notice! This is a critical hearing that you might let slip by. At the DMV hearing, the hearing officer will determine whether there is probable cause to support the officer’s finding that you were driving under the influence. The officer must testify under oath at that hearing. Sometimes, but rarely, the officer will not show up and your license will not be suspended. More importantly, experienced criminal defense attorneys know that they will have an opportunity to gather information through the testimony of the officer. At the hearing and after the testimony of the officer, the defense attorney will be allowed to cross-examine the officer which is critical for your DUI case – does the officer’s testimony comport with their report? Are there any inconsistencies? How well does the officer remember the event? The testimony at this DMV will be helpful for the attorney to understand the case, its strengths and weaknesses.

FIELD SOBRIETY TESTS
Experienced criminal defense attorneys who defend DUI cases know that these tests are a total farce and ripe for cross examination. They must be done specifically the right way or their validity can be called into question. Each test has specific steps that can each me done improperly by the officer.

Consider the complexity of the horizontal gaze nystagmus (HGN) test. The National Highway Traffic Safety Administration has crafted this test and it has 9 steps. A pretest, instructions to the driver, positioning of the “stimulus” which will be followed by the eyes of the driver, passes with the stimulus for equal tracking, smooth pursuit, maximum deviation, the onset angle of nystagmus and vertical nystagmus. The officer can improperly position the stimulus, move the stimulus too fast or too slow. There are so many ways to improperly administer the test that it is impossible to list all of them and that’s just one field sobriety test.

Hire an experienced criminal defense attorney that is familiar with these tests and can challenge them at trial.

BREATH MACHINE
There are two ways that the State can prove scientifically that your blood alcohol was over .08 – a breath machine (intoxilyzer 8000) or forensic blood analysis. The intoxilyzer has a number of specific steps that an experienced criminal defense attorney must be familiar with – did the officer check the driver’s mouth for objects or alcohol? Did the officer watch the driver for 15 minutes prior to administering the breath test? Was the intoxilyzer properly calibrated by a qualified professional? Were there any errors on the breath strip? Was the breath sample obtained within two hours of the traffic stop? There are so many issues that repeatedly come up with breath tests that an experienced criminal defense attorney will identify and seize upon. Don’t take any chances. Hire an experienced criminal defense attorney to represent you and give you the best chance at beating the DUI charge.

BLOOD TEST
Blood tests present a totally different set of issues. Experienced criminal defense attorneys will want to know who drew the blood, whether it was drawn in a medically acceptable manner, whether it was consensual, whether it was drawn within 2 hours of the traffic stop, and whether there were any irregularities in the results of the blood test.

TRIAL
DUI trials, like all trials, are for experienced criminal defense lawyers only. Many clients make the mistake of hiring the cheapest lawyer or law firm because of financial concerns when in fact, those lawyers will cost more money in the long run. Going to trial requires skill, experience and the moxie to challenge the State of Nevada to a high stakes dance. Unfortunately, many lawyers will talk the talk, but refuse to actually try the case and force the State to make an error. It could be cowardice, laziness or apathy, but it is not in your best interest to hire a lawyer unwilling ot try your case and without a track record of doing so.

APPEAL
The trial isn’t the end of the story for your case because you have the right to appeal the verdict if the judge finds you guilty. Hire an experienced criminal defense attorney that can effectively appeal your case and give you the best change at success.

As you can see, defending a DUI case is difficult and requires the skill of an experienced criminal defense attorney. There are many angles and strategies to consider and an experienced criminal defense attorney can guide you through the process to the best outcome.

Are you or a loved one accused of DUI? Hire the experienced criminal defense attorneys at Mueller Hinds & Associates to maximize your chances at success.


 

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