DUI & DWI Defense Strategies in Missouri
A DWI is a serious offense. It carries the potential for loss of a driver’s license, fines, and jail or prison sentences. A DWI can result in a criminal record and create the risk of an individual becoming a repeat offender for subsequent stops. That being said, not all drunk driving prosecutions result in guilty verdicts for a variety of reasons. I have created a massive list of DUI and DWI defense strategies that could lead to not guilty verdicts or outright dismissals.
The government has the burden to prove that the defendant operated a vehicle and that he or she did so while under the influence of alcohol, a prohibited drug or drugs or even prescription medication.
Law Office of Timothy R. Brown
Tim Brown is a criminal and DWI lawyer in Springfield, MO and former assistant prosecuting attorney at the Greene County Prosecutors’s Office.
Tim is listed among the Nation’s Top 1% of Attorneys by the National Association of Distinguished Counsel. Attorney Tim Brown has been recognized as a Top 40 Under 40 Trial Lawyer in Criminal Defense in Missouri by the National Trial Lawyers and the American Society of Legal Advocates. He has also been given a Superb Rating and rated a Top Attorney in DUI and Criminal Defense by AVVO.
DUI and DWI Defense Strategies
DWI Defense: The Accused Was Not the Driver
An element of the offense of driving while intoxicated (DWI) is that the person charged was operating the motor vehicle. Operation of a vehicle can be seen even when the keys are in the ignition and the vehicle is not on or where the engine is hot. Additionally, operation can occur even when the person charged simply turned on the vehicle to utilize the heater or air conditioner. If the driver and passenger switch seats after being pulled over, both could potentially be charged if they were both in operation of the vehicle. If it is not shown that the person accused of operating the vehicle was operating it, the person should not be found guilty of driving while intoxicated.
DWI Defense: Administration and Accuracy of Standard Breathalyzer Test
If the breath test machine was not administered correctly or if the machine was not working properly, this argument can be presented. However, an individual may still be found guilty if they showed signs of impairment that the officer or another individual can identify as signs of impairment. Even someone not trained as an officer can identify someone that is intoxicated.
DWI Defense: Anonymous Call Reporting a Drunk Driver
While an anonymous report of a drunk driver may not lead to a valid stop, a report that includes details may be enough of a reason for the stop to be valid.
DWI Defense: Auto-Brewery Syndrome
Auto-brewery syndrome has been around for a long time. In fact, people have known about it for decades. It is rare but some people have it. This syndrome causes the body to make alcohol.
DWI Defense: Blood Test After Alcohol Used as Swab
A blood test should only be performed after the area where the needle is inserted for blood has been swabbed. If the swab contains alcohol, the test results can show the alcohol from the swab. This can lead to a false reading which can make it appear that someone was driving while intoxicated when they were not.
DWI Defense: Booking Room or Dash Cam Videos Contradicts Police Testimony
The booking room in Greene County, Missouri is recorded. Many times, the camera on the dash of the officer’s vehicle is recording also. If there is clear speech by the person charged in the video but the officer says the speech is slurred, that can show a contradiction between what is in the written report and what is on the camera. The dash camera is also useful to show if there were any differences between how the person charged is stated to have walked or drove compared to what the camera shows. The dash camera can also confirm if there was a violation of the law that led to the stop (such as speeding or crossing the center lane). Just as it can show a violation, it can show a lack of violation. Sometimes the dash camera was recording when the alleged bad driving occurred but sometimes it was not. Some cameras are recording on a loop and when the officer puts the red and blue lights on, the camera retains the last 30 to 60 seconds of the recording and shows the reason for the stop (or lack thereof). Other dash cameras start recording when the red and blue lights on top of the officer’s vehicle are turned on. This may still show poor operation of the vehicle. Dash camera videos should be viewed as part of a DWI defense strategy.
DWI Defense: Booking Room and Dash Cam Videos Issues in the Breath Testing Procedure
Video of the breath test machine being used may show that the process was not completed correctly. For instance, where the officer is suppose to have a fifteen minute observation period prior to testing the breath of an alleged drunk driver, the video can show whether or not that time-frame occurred. There may also be other issues showing up on the video such as the individual burping which can cause mouth-alcohol to read higher than the alveolar air that the officer is trying to read. Failure to follow the fifteen minute time-frame can cause the results on the breath machine to show a higher breath alcohol concentration for the suspected drunk driver. This is another reason the dash camera video should be reviewed when defending a driving while intoxicated charge.
DWI Defense: Breath Machine Not Properly Operated
The breath machine must be operated properly for the breath test result to be valid. A breath machine operator must have the knowledge to use the breath test machine in the proper manner and have a current certificate at the time that it is being operated. Failure to follow proper procedure on the breath test machine could result in invalid results leading to a driving while intoxicated charge.
DWI Defense: Breath Test Device Not Approved
The breath test machine must be approved for use in Missouri. There are requirements put forth by the Department of Health and Senior Services which demonstrate which machines are approved for this process. If the machine is not approved for use, the results should not be valid. It is important to review all documentation regarding the breath test machine used when defending a DWI charge.
DWI Defense: Breath Test Operator License Expired
The person operating the breath test machine must have an active operator’s license, or the breath test result may be excluded. A valid license by the breath test operator can help ensure that the operator is utilizing proper techniques.
DWI Defense: Breath Test Operator is Unlicensed
As stated above, a person who operates a breath test machine to determine if a person in Missouri has a blood alcohol content above the legal limit must have a valid breath test machine operator’s license. If the license was expired when the operator used the machine, the results could be excluded.
DWI Defense Strategy: Breath Testing Is Inaccurate
If the breath test machine is not working properly or not used properly, the breath test result may be inaccurate. Additionally, there are other reasons why the breath test machine is not always accurate. Breath test results are not as reliable as blood test results. Further, taking two breath test samples at two different times provides a way to demonstrate more accurately what the blood test results would have been when the individual was operating the vehicle. In Missouri, only one breath sample need be taken.
DWI Defense: Breathalyzer Machine Malfunctions
A malfunction of the breath test machine can cause inaccurate readings in a driving while intoxicated case. This will likely show up on the machine’s readout.
DWI Defense: Breathalyzer Was Not Properly Calibrated or Maintained
The breath test machine should be properly calibrated. This is performed on a regular basis. If it was not calibrated close enough in time to when it was used, the results may be invalid and not proper in the prosecution of a driving while intoxicated charge.
DWI Defense: Chain of Custody of Blood Test as a DWI Defense
The blood test results should be collected and delivered to the place analyzing them with a clear chain of custody. This means that people that have had the sample in their possession should be listed as having had possession of the sample. Usually the sample is taken, the officer then sends the sample to the laboratory for analysis. If the chain of custody is not listed, there could be an issue with the sample tested being in the proper condition or even being the same sample as the sample that was taken. For chain of custody of the blood test, not every person that touches the sample must be listed as, for example, when the officer puts the sample in the U.S. mail to the testing facility, it is presumed that it was handled without tampering of the sample occurring.
DWI Defense: Detained for a Long Period of Time Before Breath or Blood Test Begins
A good DWI defense attorney will look at the time-frames that are part of the case. The longer a person is detained before providing a breath or blood test sample results in the sample not being obtained near in time to the operation of the vehicle of the person suspected of driving while intoxicated. The alcohol level in a person’s blood will have either increased over that time-frame, decreased over that time-frame, or increased and then started decreasing. All of this depends on a number of factors. The closer in time that the sample is taken to the time the suspected drunk driver was operating the vehicle, the more accurate the sample will be.
DWI Defense: Duress
Duress can be a DWI defense. If the person is operating the vehicle to avoid serious injury or death, it may be done under duress. This must be interjected by the defense to be considered. This is extremely rare.
DWI Defense: Entrapment as a DWI Defense
If an officer convinces an individual to operate a vehicle while intoxicated when that person would not have done so without the officer’s encouragement, there may have been entrapment. This does not occur in the instance of someone telling the officer “I’ll move my friend’s vehicle for you” and moves the vehicle. Here, the officer could stop the person from operating the vehicle but was not the reason the person moved the vehicle. It that individual moving the vehicle was intoxicated, that person too can be charged with driving while intoxicated.
DWI Defense: Failure to Conduct Observation Period
There must be a 15 minute observation period before a breath test is administered. This is because residual mouth alcohol may be read by the breath test machine which could cause a false reading. The breath testing machine is suppose to test deep lung air and when residual mouth alcohol is present, the machine may not be accurate. This can lead to a higher reading on the breath test resulting in a person being charged with driving while intoxicated when they may not have been intoxicated.
DWI Defense: Failure to Disclose Expert Witness
Both the prosecutor and the defense must disclose their expert witnesses. This allows the opposing party to learn of the expert’s opinion or opinions. It is important to a good DWI defense that the defense lawyer has an idea of what the prosecutor’s expert witness believes. Failure to disclose an expert, if objected to, could result in the expert not being permitted by the Judge to testify.
DWI Defense: Failure to Prove Operation of a Vehicle
A person must operate a vehicle to be found guilty of driving while intoxicated. In Missouri, this can be found if the person is not even moving the vehicle but simply has the ignition on or the engine is hot. The prosecution must prove the person was operating a vehicle (but note that someone can be charged with DWI based on operation of any vehicle, including watercraft, moped and lawnmower operation).
DWI Defense: Failure to Read the Implied Consent Warning
The officer must read implied consent prior to administering a breath or blood test. The individual consented to the testing but the statute on this topic appears to still require that implied consent is read and agreed to. If consent is not given, a warrant may be requested.
DWI Defense: Failure to Produce Dash Camera Footage
This footage must be made available to the defense. As part of a good DWI defense strategy, a good lawyer will watch the dash camera footage for inaccuracies between it and the report.
DWI Defense: Field Sobriety Not Administered Properly
If field sobriety tests are not administered in the standardized way set out by NHTSA, the tests are not reliable.
DWI Defense: Illegal Search and Seizure
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.
DWI Defense: Improper Police Actions
The officer must act lawfully and have an articulable reason to come pull over a vehicle. A DWI defense lawyer will look at the facts to determine if the officer had a legitimate reason to pull over the vehicle.
DWI Defense: Improper Stop or Illegal Stop of a Motor Vehicle
An officer should have reasonable suspicion that criminal activity is afoot before stopping a vehicle. There must be articulatable facts to support stopping the person later charged with driving while intoxicated.
DWI Defense: In-car (dash camera) Videos
Many times, DWI suspects are recorded by a dash camera video installed in the officer’s vehicle. What is recorded could contradict what is in the officer’s report. Sometimes, the field sobriety tests are performed where they will not be captured by the dash camera. Additionally, the reason for the stop may be recorded on the dash camera footage. On the other hand, the reason for the stop may have occurred prior to the dash camera being turned on. Different dash cameras work in different ways. Some are on a loop and grab the last 30 to 60 seconds of what occurred prior to the officer putting on his lights indicating for the driving while intoxicated suspect to pull over. Others, start recording when the red and blue lights come on.
DWI Defense: Inappropriate Communication With the Defendant
Prosecutors know that a defendant cannot be interrogated, or even spoken to, without the consent and/or presence of counsel on felony charges.
DWI Defense: Interfering Substances
False results can occur by non-alcohol items present in an individual’s system. Consumption of pizza dough has been known to cause an ignition interlock device to read the presence of alcohol.
DWI Defense: Involuntary Intoxication
This occurs when someone has alcohol in their system through no fault of their own without their knowledge. This is extremely hard to prove.
DWI Defense: Lack of Probable Cause to Arrest
A police officer must have specific and articulable facts to support an arrest for driving while intoxicated, or what happened after the illegal arrest can be suppressed from evidence prior to trial.
DWI Defense: Miranda not Read
If an officer does not read a DWI suspect their Miranda rights when that person is placed under arrest, that can result in some statements being excluded from a trial. Miranda is commonly misunderstood as a way to have a case dismissed. Other evidence, even without statements by the driving while intoxicated suspect, can result in a finding of guilt.
DWI Defense: Medical Problems Involving Balance
Medical problems can make a person seem intoxicated when they are not. These issues are typically ruled out when the officer asks the subject of the field sobriety tests if they have any problems that would prevent them from performing one or more of the tests. Natural nystagmus (an involuntary jerking of the eye) can cause a false reading but an officer should be able to note that there is resting nystagmus and realize the test should not be valid. Problems with balance such as leg issues can cause false readings on the walk and turn and the one leg stand tests. Vertigo and other medical issues can also create false readings on the field sobriety tests.
DWI Defense: Medical Problems Regarding Vision
Resting or natural nystagmus (discussed above) can create issues with the HGN test but vision problems can create other problems for people performing the walk and turn and/or one leg stand test.
DWI Defense: Medical Problems Regarding Fatigue and Neurological Issues
DWI stops occur pretty regularly during the late hours of night (when bars close). Many people show signs of being tired such as blood shot and glassy eyes at these hours whether they have been drinking or not. A person operating a vehicle late at night will also be more inclined to operate a vehicle in a careless manner than someone that is fully rested. In the state of Missouri, operating a vehicle in a careless and imprudent manner is also an offense.
DWI Defense: Medical Problems Regarding Digestive, Diabetes and Gastrointestinal
Gerd (gastroesophageal reflux), heartburn and diabetes can cause false readings on the breath test. Gerd and acid reflux can result in a reading that is not deep lung air (also known as alveolar air) which the breath test machine is suppose to analyze. Alcohol that has made its way into the mouth can cause a false reading since the machine may be reading mouth alcohol. If there had been alcohol in the mouth within 15 minutes of the breath test, the machine may read residual mouth alcohol and have a higher reading than it should. Lung size can also contribute to the test not being perfectly accurate. Additionally, a person going into diabetic coma can have false readings on the breath test machine.
DWI Defense: Necessity
Necessity is an odd DWI defense but one that can be used if the person charged with driving while intoxicated was operating the vehicle to avoid something more serious and more harmful happening. With transportation as it is today, this is not the most likely of defense to be utilized effectively.
DWI Defense: Non-standardized Field Tests Are Invalid
Decades ago, the National Highway Transportation and Safety Administration (NHTSA) decided that three field sobriety tests were more accurate than others. These tests are the ones that officers generally utilize for a DWI stop based on alcohol (a more detailed set of tests are used for a stop based on drug impairment). The three field sobriety tests are the Horizontal Gaze Nystagmus (HGN), the one leg stand and the walk and turn test. For the tests to be valid, they must be administered in a standardized way. This is important because the tests have a percentage of reliability of performed in a specific manner. Each test may show signs of impairment if a non-standardized version of the test is used, but the test is only scientifically reliable if the proper procedure is used. This is because the proper procedure has been analyzed and tested and because of that, it is given scientific reliability.
DWI Defense: Officer’s Credibility
Officer credibility can be challenged if the officer’ has been disciplined for lying, misrepresentation, or violating the rights of a driver.
DWI Defense: Police Blood Test Inaccurate
If the person requested by the police officer to draw the blood does not follow proper procedure, the blood test results may not be reliable or admissible in evidence.
DWI Defense: Portable Breath Test Improperly Administered
This test is used for the purpose of determining if someone should be placed under arrest for driving while intoxicated. The results are not admissible for showing a finite number as a result on the breath test for trial purposes. The portable breath test is, however, relevant for determining if someone should have been placed under arrest and therefore the administration of it may be questioned during a suppression motion.
DWI Defense: Portable Breath Test Inadmissible
As stated in the previous paragraph, Missouri law does not allow the use of portable breath testing results as evidence at trial in a driving while intoxicated case, in most circumstances.
DWI Defense: Rising Blood Alcohol Concentration
The amount of alcohol in a person’s blood at the time of operation of the vehicle is what should be determined. The breath test determines the amount of alcohol at the time the breath test occurs. Many times, this is much later than when the individual was driving and/or operating the vehicle. Consuming alcohol after the operation of the vehicle has ceased can cause the individual’s blood alcohol content to be above what it would have been prior to consumption of alcohol. Another issue that can occur is if the person operated the vehicle soon after consuming alcohol. In this instance, the alcohol level could be rising between the time the person was operating the vehicle and the time the breath test has been performed. The same is true with the blood test.
DWI Defense: Prior Inconsistent Statements by Police Officers
A statement by an officer that has changed from the time of the report or video of the stop or booking can be used to show an issue with credibility. Though, as I recall being stated a lot in law school, as time passes, memories fade. So the inconsistency could be that the officer is not remembering as well as he/she could closer in time to the traffic stop. This is why officers write reports, frankly; so they don’t have to remember every detail.
DWI Defense: Sleeping in Your Car (not a defense in Missouri)
Sleeping in your car is not a defense to DWI in Missouri. People think that if they simply start the ignition to keep warm or cool, they can’t get a DWI. You still can in Missouri because you are operating the vehicle.
DWI Defense: Field Sobriety Testing Is Inaccurate
The one-leg stand test is only about 65% accurate, and the walk-and-turn test is only about 68% accurate in determining if a person is under the influence.
DWI Defense: Statutes of Limitations
There is a one year statute of limitations for a misdemeanor DWI offense and a three year statute of limitations for a felony driving while intoxicated offense. This time-frame could be extended under some circumstances but if the charges are not filed within the amount of time allowed by the statute of limitations and there is not an exception to extend that time-frame, the case can be dismissed with the filing of the proper motion.
DWI Defense: Use of an Expert Witness
Expert witnesses may be used to show that the breath or blood sample is not accurate.
DWI Defense: Weather
Bad weather can make it difficult for an individual to perform the walk and turn or one leg stand test. These tests are more difficult to perform on a slick surface or when there is wind. Additionally, windy conditions can have an adverse impact on the horizontal gaze nystagmus test (HGN). Any combination of these tests may be administered prior to an arrest for driving while intoxicated. Generally, officers in the Springfield, Missouri area either conduct all three or simply conduct the HGN. The HGN is the most reliable of the three. As bad weather can affect all of the tests, the weather conditions should be considered in any driving while intoxicated case.
DWI Defense: Weaving Inside the Lane Is Not Generally Enough for a Car to be Pulled Over
Weaving without crossing any lines is not a violation of the law, but it can be an indicator of impairment that is used along with other indicators.
Details about DUI and DWI Defense
General DUI/DWI Defense Information
Although every case is different, we recommend hiring a lawyer when charged with DWI or DUI because there may be constitutional issues, factual defenses to the charges, and scientific or technical evidence that can lead to dismissal or a verdict of not guilty regarding the driving while intoxicated charge.
Some prosecuting attorney’s offices will provide a plea offer in which they will reduce the charges in exchange for some type of guilty plea. Many prosecuting attorneys’ office takes a firm stance on DWI charges due to the danger drunk driving can cause to the public. A conviction is sought after by the prosecution. A plea offer made by the prosecution can save the expense of going to trial. The plea offer may be better than the consequences that occur after a trial but they may not. It is important to talk over your options in detail with a DWI attorney that can give you all of your options so you can make an informed decision about how to resolve your driving while intoxicated case. Many plea offers involve other charges being dismissed in order for the prosecution to have another person with a conviction for DWI. You can benefit from the advice of an attorney to know whether the deal is advantageous. You or your attorney can bargain for a better deal.
Public defenders can offer excellent advice and assistance; some situations may leave them without time or resources to make a vigorous defense and their office in Missouri, as of the writing of this entry, says that they are overworked causing a wait list for those in need. You can hire a private attorney if you are concerned about the wait list.
States set the limits for legal intoxication from drugs or alcohol. Driving with a blood alcohol of 0.08 or higher is illegal in all of Missouri. Alcohol impairment typically uses a scale of percentage of blood alcohol.
In Missouri, it is illegal to (DUI) operate a motor vehicle with:
- 0.08% or higher― 21 years old or older operating a regular passenger vehicle.
- 0.04% or higher―operating a commercial vehicle.
- 0.02% or higher―younger than 21 years old.
For medications, it is illegal to have any of the below-listed factors.
- operating a motor vehicle while on illegal drugs.
- operating a motor vehicle after consuming excessive amount of a medication
- operating a motor vehicle while intoxicated by a combination of drugs and alcohol
- operating a motor vehicle while intoxicated by a combination of medical and alcohol
- Taken excessive amounts of drugs with alcohol in them (such as cough syrup).
- Impaired by prescription medication or over-the-counter medication.
Intoxication by drugs and illegal drugs does not have a bright line test. States use observation evidence gathered by trained expert officers. Their testimony and observations are sufficient to support a conviction. Physical evidence of drug intoxication usually requires a blood test or urinalysis.
There are two types of DUI/DWI charge, The per se rule, and the impairment type. The per se states rules require conviction of any detectable amount of a banned substance. The impairment type requires an officer to assess the defendant’s condition and make observations about his or her condition to demonstrate impairment.
If you are coming to the article after you’ve already been convicted, there may be an opportunity to have your DWI charge expunged.
Types of DUI and DWI Defense Strategies
Field sobriety tests ask for balance, following an object with the eyes and doing a walk and turn. While these seem objective, they each depend on the officer’s interpretation, the individual’s condition, and the surrounding conditions.
Reasonable suspicion is the standard for a stop. This can be a pattern of erratic or suspicious driving behavior or other observations such as a probable traffic violation. The officer must have probable cause to make an arrest. The difference is evidence. Probable cause requires evidence that a crime has occurred, and that the suspect has taken some substantial part in it. In DUI or DWI situations, the probable cause requires evidence such as the breathalyzer, a field sobriety test, or observation of the individual.
Procedural DWI Defenses
In the context of DUI and DWI charges, a procedural defense states that the charges should not stand because the process of the arrest was defective, and the defect deprived or compromised the defendant’s rights. Procedural defenses challenge the process of the stop, arrest, and taking of evidence. They include improper use of roadblocks, illegal search, and probable cause.
Procedural defenses can help get a dismissal of a DUI or DWI charge. A blood alcohol test must be done according to a strict procedure, and the attorney must examine the overall circumstances for signs of unfairness to the defendant such as causing undue stress that can affect a BAC reading.
Affirmative DWI Defenses
An Affirmative defense can negate criminal responsibility for the conduct alleged by the prosecution. It does not deny the conduct but presents facts to negate the policy that supports guilt or punishment. In the context of DWI or DUI, facts that show that the defendant was involuntarily intoxicated or forced to drive due to an emergency, self-defense, or the need to escape from an imminent danger.
Some examples of affirmative defense include personal internal chemistry, the stress of a police stop can accelerate the effects of alcohol and or medication in some individuals. Similarly, if one takes a new medication and does not realize it will impair his or her driving ability, then this is an involuntary intoxication.
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