50+ Ways to Defend and Win Your DUI/DWI/DUID Case
The Vermont Constitution (Chapter 1, Articles 10 and 11), the U.S. Constitution (more specifically the 4th, 5th, and 14th Amendments), 23 V.S.A. Section 1200, et seq., Vermont’s Motor Vehicle Statute, “Implied Consent” (23 V.S.A. § 1202), the common law, and other laws protect Vermonters from unreasonable searches and seizures, violations of Due Process of Law, and further govern the procedures for when an evidentiary breath or blood test or an evidentiary refusal (or other evidence) can be introduced into evidence at hearings or a trial. Below is a non-exhaustive list of defenses in real cases that were either dismissed or the Court suppressed an evidentiary test or evidentiary refusal:
Unlawful Stop/Seizure:
Insufficient Reasonable and Articulable Suspicion Impaired to Justify a Stop or Seizure
Insufficient Basis to Conclude a Violation of Motor Vehicle Law Occurred
Insufficient Basis to Conclude Defendant Operated, Attempted to Operate, or Was in Actual Physical Control of a Motor Vehicle
Insufficient Basis to Conclude Defendant Operated, Attempted to Operate, or Was in Actual Physical Control of a Motor Vehicle on a Public Highway
Insufficient Basis to Conclude Defendant Operated, Attempted to Operate, or Was in Actual Physical Control of a Motor Vehicle on a Public Highway and was Impaired at that Time
Insufficient Basis to Conclude Defendant Operated a Motor Vehicle on a Public Highway
Insufficient Basis to Conclude Defendant Was Operating a “Motor Vehicle”
Tip Contained Insufficient Information to Justify Stop
Insufficient Basis to Enter Defendant’s Home to Effectuate Arrest
Insufficient Basis to Conduct Search of the Curtilage of the Home
Insufficient Basis to Enter Curtilage and Seize Defendant
Insufficient Basis to Enter Curtilage and Seize Drug Evidence
Unlawful Exit Order:
Insufficient Reasonable and Articulable Suspicion of DUI or other Crime to Order Defendant to Exit Vehicle
Insufficient Basis/Lack of Warrant to Justify Exit Order from the Home
Officer Failed to Detect Sufficient Indicia of Impairment
Unlawful Arrest:
SFST’s Not Voluntary and Cannot Be Relied Upon for Probable Cause to Arrest
PBT Not Voluntary – Cannot Be Utilized in Probable Cause Calculus
In DUID Case, DRE Expert Failed to Complete 12 Step Protocol
Insufficient Probable Cause for Arrest:
Insufficient Cause Defendant “Operated, Attempted to Operate, or Was in Actual Physical Control” of a Motor Vehicle
Insufficient Cause Defendant Was Impaired at the Time Defendant Operated Motor Vehicle
Insufficient Cause Defendant Operated a “Motor Vehicle” as defined by statute
Insufficient Cause Defendant Operated a Motor Vehicle on a “public highway” as defined by statute
Warrantless Entry Into Defendant’s Home
Warrantless Arrest for Completed Misdemeanor Outside of Officer’s Presence
Officer Misconduct or Other Issues:
Processing Officer Leaves the Force – State unable to prove case
Prosecutor sends out “Brady” letter about untruthfulness of processing officer
Defendant challenges stop, seizure, arrest, or Implied Consent, and State unable to meet its burden at hearing as Officer doesn’t appear for hearing;
Lost or Destroyed Evidence:
Officer Fails to Video Record Pursuant to Body Worn Camera Written Policy
Officer Intermittently Records in Violation of BWC Written Policy, Doesn’t notate reasons for turning off camera
State loses, destroys, or is unable to produce BWC, Cruiser, or Stationhouse video evidence
State loses or destroys blood evidence – Defendant unable to independently test blood
Insufficient Sample of Blood to Permit Defendant to Conduct Independent Testing
Failures in “Implied Consent”:
Officer fails to read Implied Consent warnings
After breath test or blood draw, Defendant not told of right to independent blood draw
Officer encourages Defendant to submit to an evidentiary breath test
Defendant offered evidentiary blood test instead of evidentiary breath test
Officer reads Defendant Implied Consent from “blood” form instead of “breath” form
Officer reads Implied Consent form and informs Defendant of right to independent blood test, but does not tell Defendant after Defendant submitted to evidentiary breath test
Defendant not told of right to consult legal counsel prior to making decision whether to submit to evidentiary testing
Defendant told of right to consult with legal counsel after already submitting to evidentiary breath test
Defendant chooses to consult Public Defender, but State failed to make Public Defenders available 24/7 for consult
Defendant told of right to consult counsel of his own choosing, but law enforcement made no effort to contact Defendant’s counsel
Although Defendant able to talk to legal counsel, Defendant’s conversation not “reasonably private” as law enforcement able to hear conversation
Although Defendant able to consult legal counsel, Defendant’s conversation recorded by law enforcement
Officer told Defendant his conversation with counsel was recorded, which inhibited information Defendant was able to relate to counsel
On call Public Defender did not answer the phone when D requested to speak with counsel
Officer discourages Defendant from consulting with counsel
Officer does not tell Defendant of right to second evidentiary breath test
Officer tells Defendant she can either take a second evidentiary test or use the restroom, not both
Officer tells Defendant second evidentiary breath test “won’t change the outcome”
Officer tells Defendant, referring to second evidentiary breath test “we take the first one, we always take the first one”
Officer discourages Defendant from taking second evidentiary breath test
Defendant’s submission to evidentiary breath test was not wholly voluntary
Defendant’s submission to evidentiary blood test was not wholly voluntary
Defendant taken for blood draw absent sufficient basis Defendant impaired by drugs
Defendant revokes his consent to evidentiary blood draw, law enforcement instructs nurse to draw blood anyway;
Officer provided inaccurate information to Defendant re: refusal, i.e., that a refusal resulted in an automatic six-month suspension
After breath testing equipment not working, Defendant taken to hospital for blood draw, even though breath testing equipment readily available at other close by stations
Defendant lodged and not told of their right for law enforcement to transport them for an independent blood test
D taken to detox facility and not told of their right to have law enforcement transport them for independent blood test
After Defendant could not find a ride home and was lodged, Officer did not go back and tell Defendant about their right to have Officer transport them for independent blood test
Officer takes Defendant for blood draw absent sufficient basis to believe Defendant incapable of providing a breath sample
Officer reads Implied Consent form for Boating Under the Influence
Officer reads Implied Consent form from Snowmobiling Under the Influence
Prosecutor Dismisses Case (in the Interests of Justice):
Misconduct or untruthfulness by officer
Material misinformation to Defendant by officer
Sexual innuendo or harassment of Defendant by officer
Officer pulling back covers of Defendant at hospital when Defendant trying to cover herself up
Despite accident and probable concussion and Defendant in Emergency Department, Officer waking up Defendant repeatedly to read Implied Consent warnings
12(d) Motion to Dismiss – Lack of a Prima Facie Case
State unable to meet its burden on one or more element of the offense, such as unable to prove Defendant was impaired at time of operation, as time of operation not known
Although Defendant admitted to operation of a motor vehicle on a public highway and being “under the influence”, under “corpus delicti” rule, no evidence to corroborate D’s admissions re: operation
State unable to law sufficient foundation for admissibility of DRE or of blood test result
V.R.Cr.P. 48(b)
Upon Motion from defense, Judge dismisses case “in the interests of justice” as case is extremely old, Defendant lost civil license suspension, and had test just above legal limit
Statutory Defense – “Temporary Shelter”
Defendant proved, by a preponderance of the evidence, that even though intoxicated, she/he did not operate the motor vehicle while under the influence and had no intention of operating the vehicle while under the influence
Jury Acquittal:
Unanimous Jury of 12 finds State did not meet its burden to prove, BARD, every element of the offense
Jury Nullification
Although highly likely State proved every element BARD, Jury chose not to convict likely due to misconduct by officer or prosecutor
Hung Jury:
One or more jurors concludes State did not meet its burden BARD on each element of the offense
Others/Competency
After Defendant counsel motion for competency evaluation and subsequent examination, Defendant found Not Competent to stand trial; State dismisses case