The 20 Best DUI Defenses in Arizona
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DM Cantor has earned numerous case Dismissals with each one of these defenses, and we have the proof to back it up! Here is a list the our top 20 Best Defenses for DUI cases.
These 20 Defenses Can Get a DUI Dismissed
No Reasonable Suspicion to Stop:
A “No Reasonable Suspicion to Stop” issue occurs in Arizona when the Police Officer pulls a person over and conducts a traffic stop without a “Reasonable Suspicion” that a crime has been committed. For example, the Police are not allowed to pull you over because you were the “wrong race” in the “wrong neighborhood.” In the DUI context, this means they can’t conduct a traffic stop and pull you over because you just left a bar to “see if you had been drinking and whether you are impaired.” This is one of the most common DUI defenses which can result in charges being dismissed due to the improper DUI arrest. This illegal stop violation usually happens during the Holiday DUI Task Force time periods.
No Actual Physical Control:
“No Actual Physical Control” means that the Police cannot show that a person was actually “controlling” the motor vehicle at the time they were contacted. In Arizona, it used to be that if the key was in the ignition, and an impaired person was inside the car, they could be charged with a DUI, even if the engine was not turned on. That all changed when the Arizona Supreme Court handed down a decision in the case of State v. Love (a case argued by David Michael Cantor to the Supreme Court), and they held that a “totality of the circumstances” must be used to determine whether a person was in Actual Physical Control of the vehicle, versus “merely using the vehicle as temporary shelter.” In other words, in Arizona, if a car is pulled off the roadway and the engine is only on for the purposes of air conditioning or heating while a person is behind the wheel, or while the car was not moveable then it can be found that they were not in Actual Physical Control if they voluntarily relinquished operation of that vehicle prior to being contacted by the Police.
Inability to Establish Time of Driving:
This defense is quite common. If there is a single-car accident, and a person is contacted outside the vehicle, or if the Officer pulled up when someone is sleeping in their vehicle, then it could be possible for the Officer to be unable to establish the exact “time of driving.” Why is this important? Because in Arizona, any blood or breath test from a defendant must be obtained by the Police officer within two hours of the last time a person drove. In order to be admissible on an (AZ) .08 DUI, an Extreme DUI, or a Super-Extreme DUI. If it was not, then your DUI attorney can help you avoid a DUI conviction.
No Witness to Driving:
This defense occurs when there is no actual witness who will show up to testify as to when a person was driving. For example, if a person is sitting outside a car that has been in a single vehicle accident (or they are walking down the street), then the Police will lack a witness as to who was the actual person who was driving the car. This ties in nicely with the “Inability to Establish Time of Driving” defense.
Corpus Delecti Defense:
This defense occurs when there is no evidence that a person was the driver of the car, or the time they drove the car, other than that person’s statement that they were the driver of the car that was (usually) involved in a single-car accident. The law in Arizona states that if there is no other physical evidence of their driving, such as an injury, then a person’s statements will not be allowed in evidence to establish that they were the actual driver of the vehicle. Many Attorneys do not properly use this defense, and they end up pleading their Clients’ guilty. Remember, it is up to the State to prove all elements of the crime, and if they cannot do it, that is their problem – not yours.
Improperly Administered Field Sobriety Tests:
Standardized Field Sobriety Tests should not be given to people 65 years of age or older, or 50 pounds or more overweight, or who have various back or balance issues, or who are wearing heels two inches or higher, or those who have certain medical conditions. On top of that, road surface should be flat with minimal distractions regarding passing traffic, otherwise, the field sobriety test will be flawed. Many times, Police Officers violate these requirements, which renders the Field Sobriety Tests as being invalid.
No Probable Cause for Arrest:
The Police must have Probable Cause that a crime was actually committed in order to arrest somebody for a drunk driving charge. Many times, a person will be pulled over for DUI and will refuse to participate in any Field Sobriety Tests. The Officers’ then arrest the driver solely based on the odor of alcohol and watery, bloodshot eyes. This is a common drunk driving defense, and many times, we have cases Dismissed because the Officers’ lacked Probable Cause to Arrest a defendant.
No Miranda Rights given, or ignored Invocation of Rights:
Police are required to give arrested person their Miranda Rights prior to conducting any type of investigatory questioning. Although Officers are allowed to ask if a person was drinking, how much they drank, when they last drank, upon contacting a person in the car, they are not allowed to go beyond these three impairment questions prior to an arrest. If they do ask questions beyond those first three statements, then those answers can be Suppressed. Improper Miranda warnings often result in having a DUI Defense Lawyer get a DUI case or DUI charges dismissed.
Denial of Right to Counsel, or No Private Phone Call provided:
It has been held that a person has been denied their Right to Counsel if they request to speak with an Attorney, and then they are not either allowed to do so, or they are not allowed to have a Private Phone Call. This is one of the best drunk driving defenses that a DUI Lawyer can use in order to get evidence of a DUI or DWI charge dismissed. Many times, during a DUI investigation, DM Cantor has had situations where our Attorneys’ have spoken with a defendant while they were in Police custody, and the Officers would not leave the room in order to provide us with a Private Phone Call. When this occurs, we can get the entire case Dismissed because we were hindered in our ability to give the driver the proper advice that they would need at the time they are in custody, or advice about what to do after they get out of custody (i.e., whether they should get an Independent Blood Test at a hospital).
Breath Test Flawed Administration:
There are many reasons why a breath test administration can be flawed, which can create potential defenses to a DUI charge. For example, if the Officers do not follow the “Admonitions”, which are required in the MVD Implied Consent/Administrative Per Se Affidavit, then the blood or breath test can be thrown out. Also, the Officers are not allowed to Coerce a breath test by making threats or promises to an individual (such as, “if you don’t do this, you will be booked into jail.”) Other defenses to DUI include the requirement that a breath test be given within two hours of the last time of driving (if it’s not, it can be Suppressed). Also, if three breaths were given, it’s usually because the first two breath tests were more than a .020 apart, which makes them invalid. However, if the second and third tests are within .020 apart, then they might be admissible. These are all issues that need to be explored by your DM Cantor Attorney.
Prior to giving a breath test, the Officer is required to do a “Deprivation/Observation period” for 15 minutes before the test is administered. The Officer is required to make sure no alcohol, food or liquids are consumed by the driver. He is also to watch for any burp, belch, vomit, or gastric reflux which may occur. This is done in order to ensure that Mouth Alcohol does not affect the test. The problem is, if you do a silent burp, then it’s possible the Officer might not notice. If you have ever burped later in the day and said “wow, that Mexican food for lunch was spicy,” then this is what we are referring to. If you can “smell it,” then the machine can “detect it,” if alcohol was brought up from your stomach.
In order to combat Mouth Alcohol, the machine has a “Slope Detector.” When blowing into a breath testing device, 10 pounds per square inch of pressure is needed. This is the equivalent of submerging a straw 10 inches underwater and then blowing bubbles consistently for 4-1/2 seconds. While people blow into a testing device, if the alcohol “slope” goes up rapidly, and then drops off immediately in the 4-1/2 second time period, they will claim that Mouth Alcohol has been detected. However, if the Officer says “blow harder, keep blowing, keep blowing, keep blowing,” and you go beyond 4-1/2 seconds before you rapidly stop, the Slope Detector will not pick up Mouth Alcohol. Many times, our expert witnesses have been able to show that they can touch some alcohol to their tongue, and then blow in this fashion in order to “fool” the breath testing device, which will then result in a “false positive” of alcohol being detected. This is a major defense at Jury Trial to combating a breath test result.
Breath Test Flawed Machine:
Breath test devices in a DUI charge have to undergo scrutiny by the Department of Health Services. This includes Standard Quality Assurance Procedure and Calibration Testing. Many times, we have discovered that Breath Test Devices have gone out of calibration, and we were able to Suppress any and all breath tests that fell within a 31-day testing period. Beware: The prosecutor has no duty to tell you that the machine went out of calibration. You must have your own Attorney actually secure the Calibration Records during the Discovery process and file the proper Motions. DM Cantor Attorneys’ always request and secure all Calibration Records of all breath testing devices.
Breath Testing Devises are considered to be “in calibration” with a +/- 10% accuracy factor. This means that a person is given the benefit of the doubt that the machine could be reading 10% high at the time they were tested. In addition, a 2100-1 blood to breath Conversion Ratio is used when the machine “guesses” what your actual Blood Alcohol Concentration is. For every 210 liters of breath (the amount to fill up a 55-gallon drum if you blew it up like an inflatable swimming pool toy), means that the amount of alcohol floating around in that 2100 liters of breath should equal the same amount of alcohol they would find should they have drawn 100cc’s of your blood (about a third of a soda can), at the same time.
Because 14% of the population is “at or below a 2100-1 ratio”, that means 1 out of 7 people are being read at least an additional 10% higher than they should be. In fact, scientists have found triathletes who are an 1100-1 breath Conversion Ratio (due to their enlarged lung sizes), if they blow a .10 Breath Alcohol Concentration, and then you draw their blood at the exact same time, it comes out as a .05 BAC – half of what the breath testing device claims they are. At Trial, we are able to demonstration that 1 out of 7 people readings’ can be anywhere from 10% high, to over double the actual Blood Alcohol Concentration! This is a very effective tool for creating reasonable doubt at Trial.
Flawed Breath Tests Also Give Rise To The “Disconnect Defense”:
This occurs whenever there is a high breath test reading that does not match the physical evidence. For example, if, on the Officer’s body-cam footage the driver performs very well on the Field Sobriety Tests, and does not have slurred speech or balance issues, then the breath test reading should be low. However, if the reading is high, that is usually an indication there is a flaw in the breath testing device. Ask your DM Cantor Attorney about this when you meet with us.
Breath Test Physical/Dietary Issues:
During a breath test, certain physical conditions and dietary habits can affect the breath test. For example, if a person has diabetes, and they have been eating and have not properly controlled their blood sugar, they will then go into the ketosis phase which will produce “ketones,” which can affect the breath testing device. This also occurs when people are on the Atkins diet. So if you have either of these issues, or are living a Keto-based lifestyle, discuss this with your DM Cantor Attorney.
Improper Blood Draw:
Various improprieties can occur during the blood testing procedure that can result in the reading being Suppressed. For example, if the officers do not follow the procedure as mandated by MVD in the Implied Consent/Administrative Per Se Affidavit, the reading can be thrown out. Also, the Officers are not allowed to Coerce a blood test by making promises or threats to an individual. In addition, if a blood draw is outside two hours of the actual driving, then there is a defense in that the State is not allowed to “Retrograde” that reading to within the two-hour time period. Lastly, we will look to make sure that all items are properly used that are contained within the blood testing kit, and that the Officer did not use an alcohol-based hand sanitizer to clean their hands prior to putting on their gloves for the blood draw. For example, can you imagine an officer using a hand sanitizer that was 70% cocaine based prior to putting on gloves to draw your blood to test you for the presence of cocaine. Yet, Police Officers do this all the time with 70% alcohol-based cleansers (such as Purell) just prior to drawing blood for an alcohol test!
Improper Blood Storage or Handling of Vial:
After the Officers are done with the blood draw, they are required to place the two vials into cold storage as quickly as possible. Many Officers will leave the blood draw kit in the back of their car (during summer), for an extended and lengthy shift, before they get back to the station. Also, DM Cantor has had cases where the power had gone out at the Police Station, and refrigeration ceased for an extended period of time. This can only be discovered during the interview phase, or by the review of the Crime Lab’s logs.
Blood Test Flawed Machine:
Blood testing devices are required to go through an extensive protocol to make sure they are accurately measuring Blood Alcohol Content. In the Discovery phase, DM Cantor will obtain detailed testing and calibration records, known as the “Extended Blood Packet,” from the Crime Labs in order to search for any potential flaws. Many times, it has been discovered that certain chemicals are left behind in the 30-foot-long glass column that is used inside the Headspace Gas Chromatography testing machine. This can affect the actual outcome of individual blood test runs. DM Cantor will always secure all of these records and review the entire “batch data” in order to see if there are “flawed baselines,” or any other evidence of malfunction.
Again, the “Disconnect Defense”
This defense can be used if a reading is incredibly high, but does not match what was observed by the Police Officers on the scene. If after review of the Police Officer’s report, and their body-camera footage (if any), it appears that an individual does not have slurred speech, possessed good balance, and performed well on the field tests, but their reading was high, this then indicates that there might be some type of Blood Test Malfunction, which can result in the DUI case being dismissed.
Denial of Independent Blood Test:
The Police are required to inform you that you have a Right to an Independent Chemical Test (i.e., usually a blood draw at a hospital) as quickly as possible from being released from the Police Station, or while at the Police Station. Normally, there is what’s known as an “Independent Blood Test Advisory Form,” that is read to a driver, and they are allowed to sign it and take it with them when they are released. We at DM Cantor have found that many times the Officers’ do not inform people of this Right, nor do they give them the actual Form. If this occurs, and you are held for an especially long period of time (such as overnight to see a Judge), then this provides us the defense to not only get your blood or breath test Suppressed, but the whole case Dismissed. This is because you cannot go back in time in order to gather evidence to prove that you were, indeed, below the legal limit and sober.
Sloppy or Misleading Police Report:
Many times, Police Officers are in a rush, so they simply produce police reports which appear to be a “cut and paste” version. At DM Cantor, we have found police reports many times which contained the wrong name of the driver. Also, almost every Officer will start their DUI report with “the suspect had a moderate odor of alcohol with watery and bloodshot eyes.”
If there is body-cam footage from the officers AXON, it usually differs from what is stated in the police report. Many times, we find hidden defenses in the recording such as when somebody requests to speak to a Lawyer, or requests to be Released to get an Independent Test, yet there was no mention of this information inside the police report. Ask your DM Cantor Attorney about these defenses.
Additional DUI Drug Defenses:
DUI Drug Defenses are wide-ranging and varied. Assuming that a person has a prescription for the medication that shows up in their blood stream, then it is up to the State to prove that this medication impaired that person’s ability to drive. Many times, we are able to show that the individual took the medication properly as prescribed, and that this “therapeutic dose,” would not impair their ability to drive. Because there is no set number of nanograms in which a drug impairs a person’s ability to drive, almost all “evidence” is based upon observations and testimony of the Officers. Again, it is critical to have your DM Cantor DUI Defense Attorney review the body-cam footage, and interview all witnesses who had contact with you on the night in question. This defense can also apply to recreational Marijuana cases.
Involuntary Intoxication:
Sometimes we can raise the Involuntary Intoxication defense if we can show that a person was “slipped a mickey,” “given a roofie,” or served a drink which they did not know contained alcohol. This usually happens at college parties in which there is “jungle juice,” or some other type of sweet fruit punch that has been “spiked.” If witnesses are willing to testify that this occurred, and the driver can testify (under oath) that they did not know alcohol was contained in the drink, then this is a viable defense.
The Officer Changing or Embellishing their Story:
Almost nobody can tell the same story the same way two times in a row. This includes Police Officers. The more times they tell a story the more discrepancies will be discovered. The first time they tell it will be in the Police Report; the second time will be when we review the Body-Cam Footage; the third time will be during the MVD hearing testimony; the fourth time will be when we Interview them at the station; the fifth time will be at any Evidentiary Hearings that may be held; and the final time will be during a Jury Trial (if one is necessary). Each time the Officer’s make a statement which is different than the Police Report, we will log these differences. We will then use every one of these discrepancies to impeach the Officer’s testimony at any future Evidentiary Hearing or Jury Trial.
Spotting these discrepancies and impeaching the officer’s testimony is what has allowed DM Cantor to become the #1 Ranked DUI Law Firm in Arizona for the last 4 years in a row by Ranking Arizona magazine! (2020, 2021, 2022, 2023)
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