Fair warning: the following information is dense and could possibly set off a “snooze fest”. That said, if you are interested in DUI law for any reason, it could all be very helpful for you.

A DUI charge, like any criminal charge, has what is called an adversarial process. This is a fancy way of saying it is you versus the State of Idaho. The prosecutor’s office of each county or city, depending on the jurisdiction, is tasked with representing the State of Idaho. It is the role of the prosecutor assigned to your case to try and make sure you get the harshest possible punishment. It is your responsibility, or if you are smart, your attorney’s, to advocate for the least possible penalty. The better arguments you or your attorney can make on your behalf, the less you will be penalized. It is that simple.

When fighting in this adversarial process, there are two main categories of arguments one can make. The first are legal arguments: arguments that you did not violate the law or that the police officers involved in your case did not follow proper protocol. The second are arguments for leniency: arguments that even though the prosecution may be able to prove you are guilty, that your case or situation or background is such that you should be shown leniency.

Argument That You Did Not Violate DUI Law

DUI can be a difficult charge for the prosecution to prove due to the complexity of each case. As an officer, I arrested hundreds of DUI offenders, and I can tell you from firsthand knowledge that there are numerous steps involved in handling a DUI case; this leads to complacency and mistakes. The breakdown of an officer’s duties are as follows:

• The Stop: Police officers must have at least reasonable suspicion to make a traffic stop. Most common in DUI cases, the officer will initiate a traffic stop for a driver’s “failure to maintain lane.” However, I have challenged numerous cases where officers did not meet this criterion. For instance, where the officer was staked outside of a bar and simply initiating stops on a hunch that the driver was intoxicated.
• Physical Control Of The Vehicle: Idaho law states that it is illegal to be under the influence of alcohol while in “actual physical control” of a vehicle. To prove this element, the evidence must show that the driver was in the driver’s seat, with the motor running or with the vehicle moving.
• Initial interrogation: After the officer conducts a lawful stop, he/she must have reasonable suspicion that the driver is intoxicated before he/she may remove the driver from the vehicle to perform field sobriety tests. The officer will attempt to collect proof of intoxication at the initial interrogation at the driver’s window. The officer looks for common indicators of intoxication: slurred speech, bloodshot or watery eyes, odor of alcohol, confusion and forgetfulness. Most common, the officer will simply ask the driver if he/she has been drinking. A driver’s admission of drinking any amount of alcohol at all is enough suspicion for the officer to pull the driver from the vehicle and proceed to field sobriety tests.
• Field Sobriety Tests: Idaho has certified three roadside tests for making a preliminary determination if a driver is intoxicated:
  • The Walk and Turn: The officer will instruct the driver to complete nine heel-to-toe steps in a straight line, pivot on one foot, and complete nine more heel-to-toe steps back on the same line. Mistakes such as stepping off line, using arms for balance, and miscounting steps are considered clues of intoxication. Only two clues of intoxication are necessary for the officer to make a determination that the driver failed this test.
  • The One Leg Stand: The officer will instruct the driver to keep his/hers hands to his/hers sides, lift either foot six inches off the ground, and count in his/hers head to 30 seconds. Mistakes such as touching the elevated foot to the ground, swaying, lifting arms for balance, or miscounting are considered clues of intoxication. Again, only two clues of intoxication are necessary for the officer to make a determination that the driver failed this test.
  • The Horizontal Gaze Nystagmus (HGN) Test: Horizontal gaze nystagmus is an involuntary jerking of the eyeball which occurs as the eyes gaze to the side. Under normal circumstances, nystagmus occurs when the eyes are rotated at high peripheral angles. However, when a person is impaired by alcohol, nystagmus is exaggerated and may occur at lesser angles. An alcohol impaired person will also often have difficulty smoothly tracking a moving object. In the HGN test, the officer observes the eyes of a suspect as the suspect follows a slowly moving object such as a finger, pen, or small flashlight, horizontally with his/hers eyes. The examiner looks for three indicators of impairment in each eye: if the eye cannot follow a moving object smoothly, if jerking is distinct and sustained nystagmus when the eye is at maximum deviation, or if the angle of onset of jerking is prior to 45 degrees of center. The subject is likely to have a BAC of 0.08 or greater if, between the two eyes, four or more clues appear. A 1998, validation study found that this test allows proper classification of approximately 88 percent of subjects.

After completing these three field sobriety tests, the officer will determine whether in totality of the circumstances he/she believes there is probable cause the driver is impaired. Even if the driver fails only one of the three tests, the officer could still find probable cause to arrest as long a she/she has other evidence of intoxication, for example: blood shot watery eyes, slurred speech, smell of alcohol on the driver’s breath, or particularly bad driving. If so, the officer will then place the driver under arrest.

• Reading of your rights: Upon arrest, the officer will then inform the driver of their Miranda rights and Implied Consent rights.

Miranda rights: after arrest and before asking any further questions, the officer must inform the driver of their rights when answering those questions. Otherwise, the prosecution is not allowed to use any of the driver’s responses against them to prove their guilt in court.

Implied Consent rights: after arrest and before an officer can use a breathalyzer or take the driver’s blood, he/she must read the driver their rights to refuse testing under Idaho law. Idaho Code 18-8002 essentially states that if you are suspected of driving drunk, you are required to submit to the testing of your breath or blood for alcohol. If you refuse, then Idaho may impose civil penalties for your refusal. 1. A $250 fine. 2. Complete suspension of your driver’s license for a full year. 3. For the first year you get your license back, you must install and use an ignition Interlock system on your car. Additionally, even if you do refuse the testing of your blood or breath, the officer can still apply for a blood-draw warrant which, if granted, would allow him to strap you down while a nurse forcibly takes your blood.

• Breathalyzer: Prior to administering a test of the driver’s breath, the officer must conduct a 15-minute observation period. During this time, the officer watches to make sure the driver does not belch or throw-up, so that he/she may ensure that mouth-alcohol does not affect the accuracy of the test. Upon a successful first blow, the officer must wait and observe the driver for an additional 2 minutes before collecting a second breath sample. Most commonly, the Lifeloc FC20 series or Draeger 9510 models are used in southern Idaho. The breathalyzer itself must be certified, routinely maintained, and performance verified within 24 hours of each breath test. The officer performing the breath test must also be certified to use the machine.
• Blood Draw: A majority of the blood-alcohol tests are performed by breathalyzer. However, the State is able to prove your blood-alcohol content by blood test. Blood can only be drawn by a licensed phlebotomist and must be stored properly with 10 milligrams of sodium fluoride per cubic centimeter of blood plus an appropriate anticoagulant before being refrigerated.
• Rising Blood Alcohol Defense: In cases where a significant time passes between the time the driver is pulled over and later tested (hours after), the defendant may be able to argue they were under the legal limit of .08 while they were driving but because their BAC was still rising, they later tested above the legal limit. A thorough defense will include the hiring of a toxicologist to conduct a retrograde extrapolation.

In conclusion, this is a list of the extensive things that must be done to prove DUI, and as such, can be used to argue innocence or leniency:

• Officer must stop you for an appropriate reason
• Must be evidence that you were drinking and physically operating a vehicle
• Officer must observe indicators of intoxication or get you to admit to having a drink in order to pull you out of the car to perform field sobriety tests
• Officer must perform all 3 field sobriety tests correctly
• You must fail at least one of the field sobriety tests with other indicators of intoxication in order for officer to make arrest
• Officer must read you Miranda Rights before interrogation after arrest
• Officer must read Implied Consent Rights before administering breathalyzer
• Officer must conduct 15-minute observation period to make sure you don’t burp or vomit before breathalyzer
• Officer must be certified to use breathalyzer
• Breathalyzer must be certified and record of regular maintenance
• Breathalyzer must be independently performance verified to be accurate within 24-hours of your breath test
• If blood was drawn, officer and nurse must follow proper procedure and rules for chain of custody
• Testing must be done timely to prove you were drunk at the time you were driving

Arguments of Leniency 

Many DUI arguments lean this way, because there is often overwhelming evidence to support the prosecution’s case. Arguments of leniency are supported by the following:

• Past Record: If this is your first offense and you have no other criminal history, this makes your argument for leniency easier. Essentially, your attorney will argue that you have a been a good member of society up until now and we have no reason to think this was not a one-time mistake. The court normally does not seek maximum punishments for productive members of society.
• Low BAC: The average blood-alcohol content for DUI cases is between .12-.14. If you are below .12, arguments for leniency are much stronger.
• Good Driving Behavior: Were you driving particularly reckless before being pulled over, or did the officer get you for a petty offense such as inoperable license plate light? Good driving behavior can be argued in your favor for leniency.
• No Accident: Was there an accident? Did anyone get injured? This goes along with the argument for good driving behavior. A good attorney will highlight the fact that no accident occurred and other than the slight impairment, you were driving safely.
• Behavior Between Arrest And Court Date: If you have proven that you can be a law-abiding citizen between the time of your arrest and when you’re are tried, the court is more likely to be lenient.
• Seek Treatment Ahead Of Time: Every DUI case requires the Defendant to obtain some form of substance abuse treatment. The court will order you to obtain the advice of a counselor with a formal evaluation and then follow the recommendations of that evaluation. You can impress the judge by doing all of this ahead of time, before the Judge has a chance to order it.
• Respectful Behavior: The role of human judgement cannot be overstated. After all, the judge deciding your sentencing is human. Being respectful to the arresting officer and all members of the court can often go a long way to helping your case.

While these are some common arguments for leniency, every case is different, and a good lawyer will know how to use these arguments and others within your unique situation to get you the best outcome possible.

The materials at this web site have been prepared for informational purposes only and should not be construed as legal advice or legal opinion on any specific facts or circumstances. These materials do not, and are not, intended to constitute legal advice. Readers should not act upon this information without seeking professional counsel. The information provided at this site is subject to change without notice.