40 Ways To Win

If you have been arrested for drunk driving in Massachusetts, it is obviously cause for concern- but not for despair. By hiring an experienced drunk driving defense attorney who can protect your rights, there are a host of ways your drunk driving case may be defendable.

Here are a 40 ways in which Mr. Sharkansky, relying on his extensive drunk driving defense experience throughout Massachusetts may be able to win your drunk driving case.

  1. ILLEGAL STOP OF A PERSON OR VEHICLE- a driver cannot be stopped for a suspected OUI/DUI/DWI unless the officer has a reasonable and articulate basis to believe that a traffic law or other law has been violated. Similarly, a person cannot be seized unless a violation has occurred.
  2. WEAVING INSDIE THE LANES IS NOT ILLEGAL- weaving without crossing any lines is not a violation of the law, and a vehicle cannot be stopped on suspicion of a suspected OUI/DUI/DWI for that reason.
  3. ANONYMOUS REPORT OF DRUNK DRIVING- a car cannot be stopped for an OUI/DUI/DWI simply because an anonymous citizen reported that the driver was drunk.
  4. STANDARD FIELD SOBRIETY TESTING IS INACCURATE– in healthy individuals, the one-leg stand test is only 65% accurate, and the walk-and-turn test is only 68% accurate in determining if a person is under the influence. Those persons with injuries, medical conditions, 50 pounds or greater overweight, and 65 years or older cannot be validly judged by these tests.
  5. NON-STANDARDIZED FIELD TESTS ARE INVALID- neither the Federal Government (NHTSA) nor medical science considers touching your finger to your nose, or saying the alphabet, or counting backwards, as valid sobriety tests.
  6. BREATH TESTING IS INACCURATE- virtually all experts concede that one breath test alone is unreliable. Breath testing is subject to various inaccuracies, including a variance as much s +/- 12.5%, non-specificity for ethanol, etc. An experienced attorney may be able to bring these inherent inaccuracies to the attention of the judge or jury.
  7. BOOKING ROOM VIDEOS- many police stations videotape suspects at the police station, where their speech is clear and their balance is perfect, in spite of police testimony to the contrary.
  8. IN-SQUAD VIDEOS- more and more often, the suspect’s driving and performance on field tests is being recorded; often contradicting police testimony. If such contradictions exist, an experienced attorney will be able to point them out.
  9. FAILURE TO PROVIDE SPEEDY TRIAL- if a client is not provided with a trial within a certain period of time for his/her OUI/DUI/DWI offense, which varies between states, through delays of the court or prosecutor, the charges must be dismissed.
  10. POLICE BLOOD TEST INACCURATE- many times, police blood testing fails to follow prescribed rules of testing, analysis, or preservation recommendations.
  11. HOSPITAL BLOOD TEST INACCURATE- hospital blood tests overestimate a person’s true level by as much as 25% in healthy, uninjured individuals, and are not statistically reliable in severely injured persons.
  12. BREATH TEST OPERATOR UNLICENSED- most states require a Breath Test Operator to posses a valid, unexpired operator’s license, or the breath test result is inadmissible.
  13. BREATHALYZER MACHINE MALFUNCTIONS- most states specify that if there is a malfunction or repair of the breath test instrument within a certain period of time before or after a suspect’s breath test, the results of the suspect’s test are presumed invalid.
  14. BREATH TEST OPERATOR LICENSE EXPIRED- most states require a Breath Test Operator to posses a valid, unexpired operator’s license, or the breath test result is inadmissible.
  15. BREATH TEST DEVICE NOT APPROVED- a breath testing instrument most be listed on the Federal List of Approved Breath Evidential Instruments and the ISP approved list of Devices, or the results are inadmissible.
  16. FAILURE TO PROVE DRIVING UNDER THE INFLUENCE- a Defendant’s admission to driving, without more, does not prove a charge of driving under the influence.
  17. INDEPENDENT WITNESSES- often times, independent witness to accidents, bartenders, hospital personnel and others can provide crucial evidence of the defendant’s sobriety.
  18. FAILURE TO MIRANDIZE- prosecutors may not use as evidence the statements of a defendant in custody for an OUI/DUI/DWI when the police have failed to properly issue Miranda Warnings.
  19. FIELD SOBRIETY TEST IMPROPERLY ADMINISTERED- according to the National Highway and Traffic Safety Administration, improperly administered field tests are not valid evidence of intoxication.
  20. OFFICER’S PRIOR DISCIPLINARY RECORD- a police officer’s previous disciplinary record can be used by an experienced attorney to attack the officer’s creditably.
  21. PORTABLE BREATH TEST INADMISSIBLE- most states prohibit the use of portable breath testing results as evidence at trial in an operating/driving under the influence of alcohol case.
  22. PORTABLE BREATH TEST IMPROPERLY ADMINISTERED- the manufactures of portable breath testing devices require a minimum of two tests to consider the results evidential in nature.
  23. FAILURE TO CONDUCT OBSERVATION PERIOD- most states require that a driver be observed continuously for a minimum period, such as twenty minutes, prior to a breath test in order for the results to be considered admissible and valid in an operating/driving under the influence of alcohol trial.
  24. EXPERT WITNESS- expert witnesses are available to review the validity of breath tests, blood tests and field sobriety tests. Expert witnesses can also testify in an operating/driving under the influence of alcohol trial.
  25. MEDICAL AND HEALTH PROBLEMS- medical problems with legs, arms, neck back and eyes can affect the results of field sobriety tests. Further, other medical conditions can also affect the validity of breath test results.
  26. BAD WEATHER- weather reports establishing high winds and/or low visibility are available to explain poor driving and poor balance during an operating/driving under the influence of alcohol trial.
  27. LACK OF PROBABLE CAUSE TO ARREST- In Massachusetts, a police officer must have specific and articulable facts to support any arrest for DUI, or the suspension will be reversed and the evidence suppressed at trial.
  28. ILLEGAL SEARCH- the police are prohibited from searching a person or the automobile for a minor traffic offense, and may not search a car without a driver’s consent or probable cause. Any evidence illegally obtained is not admissible in court during an operating/driving under the influence of alcohol trial.
  29. PRIOR INCONSISTENT STATEMENTS BY POLICE OFFICERS- any statement made by a police officer, verbally, in police reports, or at previous court proceedings may be used by an experienced attorney to attack that officers’ credibility.
  30. POST DRIVING ABSORPTION OF ALCOHOL- In Massachusetts, the prosecutor must prove the blood or breath alcohol at the time of driving. Recent consumption of alcohol just prior to driving will cause the test results to be higher than what the true level was when the person was operating the automobile.
  31. INTERFERING SUBSTANCES- many items contain forms of alcohol, which may cause false results, such as asthma spray, cough drops, paints, fingernail polish. These items can cause breath results to be invalid.
  32. BREATH MACHINE NOT PROPERLY OPERATED- the manufactures of breath testing devices have specified protocols, which must be followed for a breath result to be valid. Failure to follow these requirements will result in improper readings.
  33. FAILURES TO PRODUCE DISPATCH TAPES- most stops of vehicles are recorded on dispatch tapes, as well as recording police communications regarding an arrest of an individual. Failure to preserve such tapes upon request can cause all evidence, which could have been recorded to be suppressed.
  34. MISLEADING STATEMENTS BY POLICE OFFICERS- any misleading statement by the police regarding the consequences of taking (or refusing) a blood, breath, or urine test will cause the suspension to be reversed and removed from the driver’s record.
  35. STATUTES OF LIMITATIONS- a misdemeanor charge of DUI must be filed within a certain period of time (which varies between states) of the date of offense, or the charges will be dismissed outright.
  36. PRIVATE PROPERTY- a person who has not driven the car on a public highway cannot be suspended for drunk driving.
  37. FAILURE TO DISCLOSE EXPERTS- the failure of the prosecutor to disclose the state’s expert(s) to the defendant or his attorney will cause those witnesses to be barred from testifying against the defendant.
  38. LACTATE RINGERS- when the hospital staff use lactate ringers during the treatment of a patient, the hospital blood serum results will report falsely elevated, and therefore invalid, readings.
  39. FAILURE TO RECORD CERTIFICATION TESTS- In Massachusetts, the failure to include the value of simulator solution used to test breath machines will cause the breath test results to be inadmissible in court against the driver.
  40. FORCED BLOOD DRAWS- in some states, the police may not take tests against the driver’s consent where there had not been an injury involved, or the result is inadmissible.

Do not make the same mistake that so many others now regret. Contact attorney Mark Moss for a free consultation on how your OUI/DUI/DWI case in Massachusetts can be won.

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