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When a motorist is charged with a “DUI” or “DWI” in Orange County and wants to mount a defense, the victim might have to consider several options. There’re some affirmative defenses, albeit in rare instances, to be looked into even when there is enough evidence to support the charges. One way entails attacking the officer’s observations regarding the happenings before the arrest was made or challenging the validity of proof, such as the exactness of the breathalyzer test.

The Affirmative Defenses

  1. Necessity – you prove that you had to drive to prevent a greater problem and there was no other option. Additionally, you must show the severity of the avoided risk would have created more harm than that of the DUI.
  2. Duress – if you were forced to drive while drunk so you could avoid serious injury or even death.
  3. Entrapment – if the officer somehow encouraged you to become intoxicated before driving. At this point, the defendant will have to show that he or she wouldn’t have taken liquor before driving in the first place.
  4. Mistake of Fact – when you are completely sure that you are not drunk. For instance, the impairing effect is as a result of medicinal drugs or prescription medication.
  5. Involuntary Intoxication – when you prove you got drunk unknowingly. You might have taken a dish laced with liquor in a party.

Common Drunk Driving Defenses

  1. Improper Stop – possibly the most common arguments amongst defense lawyers in DUI cases. Improper Stop entails the claim that the officer lacked a reason to order the initial stop.
  2. Administration or Accuracy of Field Sobriety Test – when the results are inaccurate, maybe as a result of improperly administered Field Sobriety Test. One common point of contention between officers and the accused is the Horizontal Gaze Nystagmus (HGN) Test.
  3. Administration or Accuracy of Portable Breathalyzer Test – when the attorney challenges the use of the breathalyzer test. These cases happen when the officer is found to have been improperly trained or if the motorist was sick and vomiting or suffering from indigestion. It is still valid when it’s discovered the device wasn’t properly calibrated and maintained.
  4. Administration or Accuracy of Standard Breathalyzer Test – similar defense to Administration or Accuracy of Portable Breathalyzer Test, but with more focus on the breath test devices used after arrests, usually at the police station.
  5. Administration or Chain of Custody of Blood Test – questions raised by the defense attorney regarding the direction of a blood test. Was it tampered with or mishandled while in custody?
  6. Rising Blood Alcohol Concentration – it’s based on the argument that while the motorist was driving, BAC was still below the legal limit and only increased between the period of stopping and when the tests were being taken. This is perhaps because the recently consumed alcohol had not been absorbed into the blood, and thus, had no effect before taking the BAC test.

Less Common Defenses

  • The Accused was not the Driver – perhaps he was a passenger or may have switched places with the driver before encountering the officer.
  • Improper Police Actions – fabricated evidence and testimonies, violation of the defendant’s civil rights, false reports, etc.

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