Are These DUI Charges Defensible?

(The content below was transcribed from an interview done with Acacia Law. We think you'll find it much easier
and more enjoyable to read this way.)

Interviewer: It sounds as if this has made it impossible to fight a DUI. How do you attack this and take it out of the equation or minimize it?

Presenting a Defense That the Jury Can Relate to and Understand

Acacia Law: It’s very simple to a certain degree, since I’ve done thousands of them. First thing you have to establish with a jury they have to draw on their own common experience. Most jurors have had a drink and driven a motor vehicle. They have to ask themselves, “If I had one drink and drove a motor vehicle did that impair my ability to drive?”

If you frame your theory and argument in that way and incorporate it into your presentation, most jurors have the good sense to say, “No. If I had a glass of wine at dinner and drove home, it would not be something that would make impaired in my ability to drive.” That’s one way to defend the charge.

Another way is you go after the tests themselves, the field sobriety tests, which again are very inaccurate. These tests rarely give any sense of a person’s ability to drive. In conjunction with that, the police have specifically designed questions, which are almost cross-examination questions, which the driver simply cannot answer.

Using the 1 to 10-scale question I mentioned earlier, any answer other than 1 is admitting you’re impaired. The way I present it this evidence to the jury is that most people, when they are asked that question, just don’t know how to answer. They don’t understand the significance of the question. A lot of jurors see that too. They see that the questions are designed to incriminate yourself even if what you know to be is true is not accurate.

If You Are Arrested and Charged with a DUI, You Will Be Interviewed at the Police Station

Interviewer: When are people asked that question who are they asked it by? Are they literally asked that question by police when they’re stopped under suspicion of DUI?

Acacia Law: No. It’s after they’re arrested and Mirandized. They’re given a Miranda warning and then asked questions. You’re talking about people who usually have been handcuffed, have been transported, are at a place where either blood or breath is going to be drawn and it is at that point they are asked a series of questions.

This is one that is sitting in the middle of the alcohol influence report and it’s designed that way. The first few questions are usually comfort questions. “Where were you? Who were you with? Where did you go to eat? Have you had anything to eat? Did you work today? Are you tired? Do you have a cold? Are you taking any prescription medication? After you left, where did you go from there? How long had you been driving before you were stopped?’ And “Oh, by the way on a scale of 1 to 10, 1 being completely sober and 10 being completely drunk, how would you rate yourself driving tonight?”

What people instinctively do is say, “If I had one or two drinks or three drinks I guess that makes me a three.” They don’t understand the significance. They don’t understand the legal definition of the question.

Now, how do I attack it? I go after what all jurors think, all people think who are not involved in this type of business which is all right, that question is just plain flat out unfair. Basically what you’re saying to the person is you consumed alcohol therefore there’s an assumption that you’re not dead sober. That’s not really what the statute calls for.

They don’t use the statutory language. They couch it in such terms that the person is usually counting how many drinks they had and giving that as the number. Then they’re in court and say, “Four. I was not totally sober. I was a four.” Four again, since the threshold is only the slightest degree, and you tell a jury that, “Yeah, he was impaired.” I’m wondering why the question is designed that way, why they put it in there and why it’s simply flat out incriminating literally against their will?

If You Are Being Questioned, It Is Best to Invoke Your Right to Remain Silent

Interviewer: That makes sense. After people have been arrested and they’re in the police stations, they’ve been told their Miranda rights do they still choose to answer these questions? How many of them keep silent and say, “I won’t answer,” versus answer these questions?

Acacia Law: They should invoke their rights but again at that point they think, and again, this all comes back to how people view these types of situations. What you’re looking at is a situation where an individual feels like they’re under arrest and they must be guilty. Again, this is the first time most people have ever had contact with law enforcement at all.

Your Answers Are Used as Incriminating Evidence

When they’re under arrest they’re in handcuffs, they’re sitting there on a bench or in a chair in an officer’s station or a DUI van or on a park bench in one of those zones they’ve set up for a massive DUI intervention. Essentially what they do is they’re under the presumption that they’ve already been found guilty. They think that by being polite and cooperative, which is fine; it’s okay to be polite and cooperative and to decline to answer any of those questions.

But they don’t. They start volunteering answers. They think they’re doing the right thing but unfortunately what’s happening is that they are in essence ‘hanging themselves’ in the eyes of the police by giving them all the information that they want. So I have to unwind the whole situation to a jury at that point.

Interviewer: You put it in the proper context so that the jury understands.

Acacia Law: Right. Most jurors will see that if you explain it. Most people who are under arrest don’t understand the implications of the questions that they’re responding to. It’s up to the attorney to present that to the jury so it’s made pretty clear what happened here. They’re just not thinking they were impaired. The person is just trying to answer the questions the best they can but they don’t understand the legal implications of what they’re saying.

As I pointed out, there are countless situations where a person has one or two drinks and they’re not impaired. But they’re trying to answer specific questions that the state focuses on because it makes it easy for them to say, “Aha. This person in fact was impaired.” Well, when the person was asked the question, they did not understand the question in that context and certainly did not understand it as the statutory definition under Arizona revised statutes of the criminal code.

That’s the trap and from my perspective, what you have to do is enlighten them by showing them why the question is created, this is what it’s designed to do, and that it’s not a question of trying to really ascertain factual information. It is really designed specifically to incriminate the person almost against their will.