Numerous policies, procedures, and laws govern the actions of the police. Mistakes, misunderstandings, or errors from the initial contact to the final booking may help in winning your DUI.
Improper Stops
TIPS OR ANONYMOUS CALLS – There are two types of Report Every Drunk Driver Immediately (REDDI) reports. There is the unidentified REDDI reporter. If the caller can not be identified or refuses to provide any contact information, the officer must have a secondary reason for contact. The officer can not solely rely on the caller’s report or observations to make contact if the officer cannot identify the caller. If the reporter leaves his name and contact information (identified REDDI reporter) the officer can contact you without directly observing any infractions or law violations.
WEAVING IN LANE - This observation alone is not a proper basis to stop a driver. No car drives completely straight.
There are various reasons a driver may drift or weave within a lane. Weaving within your lane is not illegal.
MISTAKE OF LAW – Even if the officer has the best intentions, a stop based on a mistake of law is an illegal stop.
STOPPING WRONG CAR - Just as an officer must see an actual violation, the officer must be able to clearly identify the car stopped and identify why it was stopped.
STOPPING FOR A HUNCH OR JUST FELT LIKE IT - Rarely will an officer admit this was the reason for a stop. Almost every officer knows this is an illegal stop and any resulting evidence will be excluded.
Improper Arrest
BAD SFSTs - The roadside gymnastic tests are a tool used to make an arrest decision. The tests have specific rules and observations. If they are not followed, then the probable cause for the arrest can be brought into question.
WEATHER - Weather can affect observations of driving and performance on SFSTs. Failure to consider this factor can affect credibility.
MEDICAL-PHYSICAL CONDITIONS - There are numerous medical and physical conditions that can affect a person’s roadside behavior and performance. These issues should be considered and factored into an officer’s arrest decision. For instance, there is documented court testimony of at least 38 causes for HGN (the condition being tested during the pen/eye test) other than alcohol. Included are stress, caffeine, nicotine, flu, strep, measles, hypertension, lack of sleep, and fatigue to name a few.
ILLEGAL EXTENSION OF STOP - Once an officer has completed the reason for the initial stop, the officer should terminate the contact and allow you to leave. For instance, if you are stopped for speeding, you should receive a ticket and be allowed to leave unless there is a clearly articulated reason to extend the detention. If the initial reason for the stop dissipates before or during, then the contact must cease.
VIDEOS DON’T SUPPORT ARREST REPORT - Very few agencies use videos in Colorado. You have probably watched COPS on TV. When the videos are available, they may not support the arrest decision or may show facts different from what is in the police report.
Improper Blood Test
PROPER REQUEST – If a person requests a test and is not given one through no fault of their own then the case can be dismissed. A persons request needs to be granted unless there are extraordinary circumstances precluding the completion of the requested test. The statute provides that under the extraordinary circumstances the other test shall be offered.
STATUTORY REQUIREMENTS - There are specific procedures that must be followed in performing a blood test.
LAB MISTAKES - Most often a blood test is not tested by a human. Many samples are loaded in a machine; it runs overnight and prints out multiple reports in the morning. This allows for many human and machine mistakes. Sample tray loaded with one testing batch of blood samples.
Improper Breath Test
RULES OF CDPHE – The Colorado Department of Public Health and Environment sets the rules governing all breath testing in the state of Colorado. Failure to follow the rules can result in the exclusion of the test from court evidence.
CERTIFICATION OF OPERATOR - The operator of the machine must be certified and the certification must be renewed every 6 months.
CERTIFICATION OF INSTRUCTOR – A breath test instructor must be certified and the certification must be renewed every year or the instructor must teach a class in the past twelve months to maintain their certification.
CERTIFICATION OF MACHINE - The machine must be certified by CDPHE annually and periodic maintenance must be performed on it.
INTERFERENTS - There are numerous chemical and physical items that can interfere with a proper test, which can result in false readings.
MACHINE NOT CALIBRATED - If a machine is not properly calibrated, it will result in false or unverifiable readings.
MACHINE MALFUNCTION - This machine is 1980s technology. There are numerous parts of the machine that may not be
working, yet, the machine will still generate a BAC reading.
PROCEDURES NOT FOLLOWED - There are specific procedures that must be followed before a proper test can be administered.
Procedural Mistakes
MIRANDIZE/READ YOUR RIGHTS - Although the law will not require a reading of your Miranda warning, if the officer continues to question you after your arrest, many statements may be excludable.
WITNESS APPEARANCE - If a witness was responsible for your initial stop or other key element, the witness will also have to appear at key points in the case.
INCONSISTENT STATEMENTS BY COP - If the cop’s testimony at court differs from his written report, it brings his credibility into question.
EXPERT WITNESS - We have experts who often analyze reports, breath tests, and video tapes to help determine if the arrest was proper and the facts were correctly presented.
ABSORPTIVE STAGE - It is a medical fact that during the early stages of drinking, you will show an artificial ‘peak’ while absorbing the alcohol. This means that during the early stages of absorbing alcohol before it is fully absorbed into your system you will yield an artificially high BAC.