Both prosecutors and juries attach great weight to breath test results. Accordingly, cases are best classified by whether the defendant took a breath test and what the result was.
In State Court, if the defendant refuses to take a blood or breath test, it is very rare for the State to reduce or dismiss the charges. However, such cases are easier to win at trial than cases where there is a high blood alcohol content “BAC” reading. Such cases usually come down to what evidence of intoxication the prosecution has. Three out of four DUI arrests in Henry County are recorded on video tape. It is critical for the defense attorney to review this tape well in advance of trial. If a defendant looks sober on the video tape and there is no evidence of unsafe driving, a defendant’s chances of acquittal are good. Conversely, if there is a videotape on which the defendant looks drunk, a jury is likely to convict. In general, roadblock cases are easier to win than cases where the defendant is pulled over for a traffic infraction because: (1) there is unlikely to be evidence of unsafe driving; and (2) it is less likely that there is a video tape. Because the State has the burden of proving guilt and video equipment is widely available, a good trial attorney can turn the absence of a videotape against the prosecution.
Low BAC Cases (0.079 or less)
A good attorney can usually get such cases reduced to reckless driving. Most of the cases where the charges were reduced or dismissed are cases where the defendant took a blood or breath test and the result was 0.079 or less.
High BAC Cases (0.100 or higher)
It is extremely rare for a defendant to be acquitted when the jury is informed of a test result of 0.10 or higher. In such cases, a good defense attorney will do everything possible to get the test result suppressed (thrown out). Suppression can occur when:
An officer pulled the defendant over without probable cause to believe he had committed a crime or traffic offense
The defendant was stopped at a roadblock that was not properly authorized by supervisory police personnel
The chemical testing equipment was not properly certified
The defendant was not advised of his right to obtain an independent chemical test
The defendant asked for an independent chemical test and the police did not take him to a hospital to have such a test
The good news is a motion to suppress a chemical test result must be heard before trial. Thus, a defendant with a high chemical test result can attempt to suppress the test and then enter a guilty plea if this fails.
If a chemical test result of 0.10 or higher is admitted into evidence, the defendant’s odds of acquittal are less than 20%. However, if the defendant has a commercial driver’s license or knows that a DUI conviction would destroy his career, it may be worth “rolling the dice” even in the face of bad odds.
A defendant who is convicted after a jury trial will do more jail time than one who enters a guilty plea. In Henry County, a defendant who is convicted of a first time DUI after a jury trial will typically receive 3 to 10 days in jail if his BAC was below 0.15, and no one was injured.
Borderline Cases (BAC between 0.080 and 0.100)
Breath testing equipment is subject to error. Results can be skewed by dozens of factors including whether the defendant exercised, what the defendant ate, whether the defendant used mouthwash, the defendant’s body temperature, the air pressure, and individual differences in the ratio between the content of a person’s breath and blood. Even when a breath test is administered perfectly, there is a 5% margin of error. Borderline cases are winnable, but require significant preparation to win. A defendant should always call an expert witness on chemical testing in a borderline case. Without such testimony, jurors may not understand the possible sources of measurement error. Thus, the total cost of taking a borderline case to trial is roughly $3,000.