MISSOURI DWI AND CRIMINAL DEFENSE ATTORNEY

What you can do if charged with DWI/DUI

 

Although a DWI/DUI arrest is a very serious matter, it does not have to be a life-destroying event.  There are defenses for both the criminal and administrative parts of your case.

 

The most common defense is that you were not intoxicated. 

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The prosecutor will try to show that you appeared intoxicated by introducing  testimony of the police officer(s) involved in your case - along with any possible auto video or body cam footage.  

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They will also use your breath test result that exceeds .08 -  if they have one -  to prove you were intoxicated.

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​A breath or blood test result of .08 or higher creates a presumption of intoxication.

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It is a rebuttable presumption though, which means you can put on evidence disputing intoxication.

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Challenging the breath test result in and of itself can be difficult without proof of an error in testing or protocol.

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It is possible to challenge the validity of the breath test result by attacking:

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·        the validity of the testing device itself.

·        how the test was performed.

·        the credentials of the testing officer.

·        the credentials of the calibration officer.

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Another defense is that you weren't driving (operating) the vehicle.  This defense won't work when you are pulled over by the police, or otherwise found behind the wheel with the engine running. 

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However, sometimes a driver is picked up and arrested for leaving the scene of an accident - minutes or hours after the accident occurred - and they appear intoxicated at the time of the arrest.  Sometimes, nobody ever saw them driving.

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Often in circumstances like this the police will still go ahead and arrest the person for DWI, even though the alleged driving took place sometimes hours before the police found them.

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A valid defense in this type of situation exists when it is shown the driver consumed alcohol after the alleged driving took place.

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The argument being that however intoxicated the person might appear at the time of their arrest, it doesn't fairly represent their condition at the time of the alleged driving.

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RISING BAC DEFENSE

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Another defense is called rising BAC (blood alcohol content). 

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In a rising BAC defense, it is argued that a person's blood alcohol level was below the legal limit when they were driving, but it rose over time after the traffic stop and up to the point of the actual testing.

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Sometimes it can take over an hour from the time of arrest before a breath sample is obtained.  It can take even longer when a blood sample is being sought by the police. 

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By the time the driver was tested, the result obtained did not reflect the actual BAC at the time of the driving.

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This defense can work if the drinking happened at a particular time and in a particular amount - relative to when the driving took place and breath testing occurred. 

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The general idea is that a person drank the alcohol shortly before driving or even while driving. 

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Because alcohol doesn't hit the bloodstream immediately, there is a time lag between the consumption and when it is absorbed and measurable in the blood stream (BAC).

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The defense argument would be that the driver was not legally intoxicated at the time of driving (and police stop), but that the driver's BAC level rose after the stop - as the alcohol was entering the bloodstream.

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This defense will require an expert witness to give an opinion.  The expert will review the police report and other information - such as when and how much alcohol was consumed by the client.

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After reviewing the material carefully, the expert will decide if rising BAC is a valid defense under the specific circumstances, and if so, how it affected the BAC result of the client.

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DIABETES DEFENSE

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It is possible that under certain circumstances, symptoms associated with diabetes can cause a person to appear intoxicated when they aren't (low blood sugar or hypoglycemia). 

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An expert witness would be necessary to give an opinion when utilizing this defense.

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GERD DEFENSE

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GERD is another defense in some rare situations.  GERD is a medical condition that can cause, among other issues, a person to have acid reflux.

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The defense theory is that right before the person's breath was tested, their GERD caused them to burp up stomach contents into their mouth that had high levels of alcohol, which in turn caused an artificially high BAC reading by the testing device.

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In Missouri, a Type 2 or Type 3 permit holder is required to observe the person for 15 minutes before administering the breath test.

 

This is to make sure they don't have anything in their mouth like gum or candy, or that they vomit, or have any other mouth-related incident that could alter the test results.

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If a person told the police at the time of testing they had GERD associated problems and it was documented by the police, such a defense would seem to be viable. 

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Or if the person had a history of GERD that was extremely severe and was documented in medical records, it could be possible to argue as well.

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The GERD defense would require an expert witness to be used at trial.

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There are other possible defenses and factors that are involved in a DWI prosecution than those presented here.

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DWI TREATMENT COURTS

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If someone is facing a felony level DWI charge, there is an alternative way of approaching the case.  That way is by participation in "DWI Court", or other special treatment court program.  

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Whether or not participation in one of these programs is the best option will depend on the specific facts of your case.

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A person must be screened and approved before they can participate in any of these programs. 

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In addition to the treatment benefits received, participation and completion can bring other benefits that are not otherwise possible. 

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One such benefit is a "special limited driving privilege".  A treatment court judge has the power to grant limited privileges to program participants, even in circumstances where it would otherwise be legally impossible to obtain any driving privileges.

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Participation and successful completion of DWI Court will often eliminate, or greatly reduce, the amount of mandatory "shock jail time" that a person is required to serve by statute in felony cases if convicted. 

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