How to Find Flaws in the Police Report
At the Law Office of Mark Blair, I have been helping people get the best possible outcome for their DUI charges for more than 23 years. When investigating your arrest and preparing your defense, I take every detail of your case into consideration, including the material mistakes police officers may make when filing their report.
Please contact me today to schedule a free consultation to discuss your DUI case with an experienced DUI lawyer. I provide high quality representation to people in Oakland, Walnut Creek and the entire east San Francisco Bay area.
A DUI case has two separate parts, the criminal trial and the DMV hearing. Each effectively involves four components for a successful defense: attacking the police officer’s observations of bad driving, contesting the police officer’s field sobriety test results, refuting the so called “objective symptoms of intoxication,” and casting doubt upon the validity of the chemical test results.
Attacking the police officer’s observations of bad driving
The prosecutor will try to show that alcohol impairment caused bad driving. For example, a prosecutor will argue that speeding or failing to stop fully at a stop sign is consistent with being impaired.
I will emphasize all the good driving. I also will highlight all the facts of your case that are consistent with sobriety, such as immediately pulling over to a safe area once the officer turned on his overhead lights.
Also, I will point out the absence of “classic alcohol impaired actions” in your case, such as crossing over lanes, accidents, and fleeing a police officer. If, for example, an accident did occur, I would endeavor to show that the accident was not caused by alcohol.
Contesting the police officer’s field sobriety tests
The prosecutor will highlight anything that you, according to the police report or witness statements, failed to do correctly during the field sobriety tests. I will contest the field sobriety tests several different ways. First, I will emphasize that being impaired for purposes of driving under the influence cases means mental and not physical impairment. The prosecution and the police officer almost inevitably emphasize errors that a driver makes on field sobriety tests. I, however, will want to show that any “mistakes” either did not occur or if they did, were caused by physical and not mental impairment.
In addition, I will show everything that you did correctly on each of the field sobriety tests. For example, if during the entire field sobriety tests, you did 79 things correctly and three things incorrectly, that surely would be a passing grade in school or at work.
Refuting the “objective symptoms of intoxication”
The prosecutor will point to information in the police report that the officer observed, such as red or watery eyes or “odor of alcohol” on your breath. As your attorney, I will emphasize that the law does not prohibit drinking and driving. The law prohibits driving while impaired. This difference is that these so called symptoms are present when people drink, whether or not they are impaired. There may be other reasons for red eyes, such as contacts and fatigue. In addition, the “odor of alcohol” is a misstatement because the additives in alcohol, rather than alcohol itself, create the odor.
Casting doubt about the validity of the chemical tests
The prosecutor may receive a chemical test report from a “criminologist,” a person employed by a crime lab. The test report will have results from your chemical tests, which can be blood or breath.
I can have the blood sample retested to show that the criminologist failed to test the sample to determine if the appropriate level of preservative and anti-coagulant were present (the absence of either or an insufficient or overabundant amount of either may cause a false high reading). Moreover, if the blood sample is retested and the results show a lower amount, the degree of discrepancy between the initial and second test may create reasonable doubt, leading to a dismissal or reduction of charges.
As for the breath test, the breath machines must be properly maintained and calibrated on a periodic basis. Through the discovery process, we may obtain the calibration and maintenance records and use them if they show any maintenance or calibration problems.
California statute requires police officers to observe you for 15 minutes before having you perform the breath test to prevent the contamination of the breath samples by any foreign source (belching, vomiting, etc). I will exploit any failure by the officer to maintain the appropriate 15 minute observation period.
Furthermore, any specific medical or dental conditions leading to the trapping of mouth alcohol or production of belching or regurgitation can be shown to cause an artificially high result. In addition, if your breath test result differs by more than .02%, there are problems admitting the test results against you.
Contact me as soon as possible after you or a family member has been charged with DUI. By acting quickly, I can gather all of the evidence necessary to find flaws in the police report, such as the ones outlined above.
To learn more about DUI law in general, please visit my DUI Practice Center.