3/14/2011We are sometimes asked if you can still drink some liquor in front of the cops and that will be a good defense for a DWI.
What if I keep a bottle in my car and then drink some after I pull out my keys? Will that help prevent a DWI conviction in Fairfax County, Virginia?
The theory there is that they can't use a breath test in Court because it is just a measure of alcohol and some of the alcohol was consumed after the driving was done.
So, will it work? This link is a news item from Ohio where it might not work for this guy. It says that he took a swig of beer during a traffic stop, but then he failed all of the sobriety tests.
Well, he may be lucky enough to prevent a breath test from coming into evidence at trial. However, he may win the battle but lose the war. He might still be convicted of DWI if there REALLY were clear signs of intoxication from the Driving, Field Sobriety Tests, and other behavior. Now, cops will usually say that a driver failed sobriety tests, but they can't really say that in Court. They should be limited to specific obvervations about what they saw and let the judge draw the ultimate conclusion as to whether the client was intoxicated. A skilled Fairfax County DUI Lawyer will always be arguing about all of the things that the client has done that are consistent with sobriety, but the absence of a breath test is not always enough to avoid conviction.
If they do decide to convict the guy, they will have to decide how to sentence him, and whether to give a restricted license, and they may take into account the "Clever" actions that he has taken to avoid having a breath test used against him.
This whole defense aspect of the episode seems to be lost on the journalist in this case, but that is typical of superficial media reports on the important subject of DWI arrest and defense.
Category: DUI and DWI
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