Birmingham DUI & Criminal Defense Lawyer & Attorney : Eversole Law Firm : Criminal and DUI Defense : Serving Birmingham, Montgomery, Alabama

Today we are continuing with our discussion about 20 ways to beat a DUI charge in Alabama.  If you have been charged with Driving Under the Influence of Alcohol, here is part two of our 20 ways to beat your DUI.  Here goes another five ways an experienced and knowledgeable Alabama DUI lawyer or Alabama DUI attorney can beat your Alabama DUI charge:

6.  Rising Blood Alcohol Level:

A DUI suspect can blow a .15 at the police station; but have had a .07 BAC when he got pulled over. Why? Because alcohol takes an average of 50 minutes, but can take as long as three hours, to absorb fully into your bloodstream and create your peak blood alcohol level. This is critical if the DUI traffic stop occurred relatively soon after you finished drinking.

Your BAC was probably still rising when you blew in the machine. This means that even if your BAC was above .08 when the blood draw or breath test occurred at the police station (or hospital), it may well have been below .08 when you were actually driving. There is no law against having a BAC above .08 at a police station; it’s only the blood alcohol level while actually driving that counts for DUI purposes.

7.  Alabama Law Requires a 20 minute Observation Period Before The Breath Alcohol Test:

Alabama regulations require the officer to watch the DUI suspect continuously for at least 20 minutes prior to administering the breath alcohol test. The officer must make sure that during this period the person does not consume anything, burp, belch, hiccup or regurgitate. Any of these may cause alcohol to travel from the stomach to the mouth. Blowing this “mouth alcohol” into the breath machine triggers an exaggeratedly high BAC reading.

Officers rarely follow this required observation procedure. They usually perform paperwork, write reports, set up the machine and converse with their partners, diverting their attention from the DUI suspect who must be watched vigilantly during this period. Failure to follow this procedure casts doubt on the validity of the test result, and can sometimes get the test thrown out of court altogether.

8.  Inaccurate Blood-Breath Partition Ratio -- Ratio is should be based upon  Individual Differences:

DUI breath testing assumes that “breath alcohol” accurately reflects blood alcohol based on a 2100-to-1 partition ratio. This assumption rests on the proposition that the average ratio across the population is 2100-to-1. But studies reveal that the ratio of blood to breath varies greatly among individuals.

A DUI suspect with a ratio lower than 2100-to-1 will generate an inaccurately high reading from a breath alcohol test. And there’s no way to determine what a given person’s ratio is, or what it was at the time of the DUI breath test.

9.  The Police Officer Failed To Read You Your Miranda Rights:

Police must advise you of your Miranda Rights in a DUI case if (1) you are in custody and (2) they question you seeking to illicit an incriminating response. If the officers continued to interrogate you after placing you in custody for DUI, and did not first read you your Miranda rights and obtain a valid waiver, then your post-custodial statements will likely be excluded from evidence.

10.  Alcohol On Your Breath Does NOT Mean You Are Under the Influence:

In explaining why he believes you were drunk, the DUI officer almost always mentions smelling “a strong odor of alcohol on the suspect’s breath.” But the officer looks foolish on cross-examination when he admits that alcohol itself (ethanol) has no odor. Rather, it’s the mixing agent or flavoring that produces the odor we associate with alcohol. If you doubt this, go to the market and buy a 6-pack of a non-alcoholic beer. It tastes and smells just like beer; but it contains no alcohol.  Also, vodka is a colorless and odorless alcohol.  You could drink a gallon vodka and your breath would not smell.

Indeed, laboratory studies show that police officers’ perceptions of how strongly a person’s breath smells of alcohol simply doesn’t correlate with his/her actual blood alcohol level. All that can be gleaned from the “odor of alcohol on the breath” is that a DUI suspect probably consumed some alcohol recently. But it does not provide evidence that the person drank enough to be “under the influence” or to have a BAC .08 or higher.

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DUI convictions are not hopeless or inevitable.  I am often asked by potential clients how realistic it is to fight and win against an Alabama DUI charge.  I tell them one thing, clients retain my firm, and pay me very well, for one reason, to fight Alabama DUI charges and win.  Pleading guilty to an Alabama DUI charge is not the answer in most circumstances. 

DUI prosecutors will point out several factors to try and prove you were driving under the influence of alcohol:  odor of alcohol on your breath, erratic driving, you were disheveled and appeared intoxicated, poor field sobriety test performance, and the results of a breath or blood alcohol test.  What they will not point out, and what you must rely on an experienced Alabama DUI defense lawyer and attorney to point out for you, is that each of these "evidence" types are ambiguous, subject to multiple interpretation, unreliable, and subject to faulty assumptions.  Over the next few posts I will outline 20 possible DUI defenses a good Alabama driving under the influence of alcohol attorney or lawyer will use to win a not guilty verdict in your DUI trial. 

1. Factors Other Than Alcohol Can Cause Poor Performance On DUI Field Sobriety Tests

   Even if you performed less than perfectly on the DUI field sobriety tests, this may be attributable to unfair test conditions such as:

   • The tests occurring on uneven surfaces or slippery terrain
   • The distraction of flashing lights and traffic whizzing by
   • The test area being too dark or amidst glaring lights
   • Cold temperatures, rain or wind
   • Unsuitable footwear—such as boots, high heels or dress shoes
   • Nervousness, anxiety and/or frustration

   Most people who had nothing to drink would still struggle with the FSTs under these conditions. The upshot is this: even if you struggled on the roadside tests, this may well be attributable to the setting and circumstances rather than attributable to you being intoxicated.  If you do not believe me, simply try the standardized field sobriety test at home, in a comfortable setting, on a steady floor, without any nervousness or anxiety.  This is often enough, when combined with a skilled DUI defense litigator to raise reasonable doubt in jurors minds as to whether or not you were indeed intoxicated.

2. There Are Often Innocent Explanations For The Symptoms Of Intoxication

   Police officers almost always claim to have observed certain “objective symptoms of intoxication” in the DUI suspect. The standard list includes:

   • Bloodshot and watery eyes
   • Slurred speech
   • A flushed face and
   • An unsteady gait

   DUI police reports feature pre-printed boxes for these symptoms that officers merely check off. Of course, the officers almost never photograph, videotape or audiotape the DUI suspect so that jurors can later judge for themselves whether and to what extent these symptoms were present.

   In any event, non-alcohol causes often explain these observations. For example, fatigue, allergies and eye strain cause bloodshot eyes. Nervousness, embarrassment and anger over the DUI traffic stop cause flushing. Intimidation and fluster cause slurred speech.

   The officer rarely takes these innocent explanations into account. The DUI defense attorney must emphasize to the jury that the evidence is just as consistent with non-alcohol explanations as it is with intoxication.

3. Breath Testing Machines Mistake Other Chemicals for Alcohol

   DUI Breath alcohol testing machines also detect non-alcohol compounds, which they frequently mistake for alcohol. Among the compounds most commonly mistaken for alcohol are ethylene, toluene, nitrous oxide, diethyl ether, acetonitrile and isopropanol.

   The presence of any of these compounds in the DUI suspect’s lung tissue will likely cause a false, or falsely high, blood alcohol reading. We find that people frequently ingest these compounds at work or in other environments where the chemicals are present.

4. The Presence of Mouth Alcohol Can Contaminate The Breath Alcohol Test Results

   Ideally, DUI breath testing devices detect alveolar air of the deep lungs, which is loosely correlated with blood alcohol level. But the breath testing machine can be “tricked” by latent alcohol in the mouth—often caused by burping, belching, or the recent use of cough syrup, cold medicine, mouthwash or breath spray.

   When the breath testing machine picks up mouth alcohol rather than deep lung air, it gives BAC readings greatly higher than the true BAC. This becomes a particular problem for DUI arrestees with dentures, denture adhesives, braces, cavities, food impactions, orthodontic work or who have food particles trapped between their teeth (as all of these conditions tend to produce mouth alcohol).

5. Field Sobriety Tests Wrongfully Convict 33% of DUI Suspects and Provide A Very Poor Measure Of DUI Impairment

   Even when the standardized field sobriety tests are administered perfectly (which is rare), they still provide a very inaccurate measure of whether a DUI suspect is impaired. According to NHTSA, for example, the one leg stand test has a 65% accuracy rate and the walk-and-turn test a 68% accuracy rate.  Not only do these stats. presume a perfectly administered test, they also assume every person is physically the same, without disability, inner ear problems, or infirmity in any way. 

   This means that if people were convicted based on these roadside tests, one third of them would be innocent and wrongly convicted. Or, viewed another way, when officers arrest DUI suspects based on failing these tests, one in three suspects is wrongfully arrested.

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A "rip and run" crime wave is targeting Birmingham, Hoover, Irondale, Moody, Leeds, Vestavia, Pelham, Trussville, Mongomery, Cullman, and the rest of Alabama.  Thieves are targeting expensive mechanical pieces found on cars and trucks.  Catalytic converters are a favorite target for this kind of theft.  The thieves take the metal to scrap yards for quick sale.  The converters are worth about $30 to $50 at scrap yards.  Police say the crime takes less than ten minutes to perpetrate and thieves pose as car owners working on their own cars.  In Hoover, Alabama a major criminal case began when thieves stole catalytic converters from multiple cars on a closed car lot.  Repairs often cost the car owner approximately $1300.  Trucks and SUVs seem to be the most targeted vehicles in Alabama because they sit high off the ground allowing for easy access, but any car is susceptible to the theft. 

Many believe the best solution to stopping this kind of crime is to crack down of scrap yards who pay money for scrap metal.  This is an overreaching approach that does nothing but hurt honest business.  It is similar to blaming guns for crime.  As a criminal defense attorney and lawyer I believe that individual rights are the most precious commodity we have in this country.  When we give up those rights to combat minor inconveniences, such as cooper or metal theft, or even when we give up those rights to combat major areas of concern such as inner city violence, and we ban handgun ownership like the District of Columbia, then you are giving up rights the founders of this country fought and died to obtain, and are disgracing the memory of those who have fought and died since to protect those hard won freedoms. 

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An Alabama death row inmate, Charles Lawhorn, received a bit of clemency from the 11th U.S. Circuit Court of Criminal Appeals last week.  Mr. Lawhorn was convicted of an Alabama murder for hire and sentenced to death.  The vaunted 11th Circuit denied Mr. Lawhorn a new trial but stated he deserved a new sentencing hearing because his lawyer(if you want to call him that) did not give a closing argument during the sentencing phase of his Alabama capital murder trial.  Mr. Lawhorn's attorney stated he believed that by not giving a closing statement it would prevent the prosecution from making a closing argument.  The Eleventh Circuit Criminal Court of Appeals stated that Mr. Lawhorn's lawyer was mistaken about the law and that with adequate legal research he would have known about his mistaken belief.  The 11th Circuit Court of Appeals states,

The attorney's "failure to present a closing argument prejudiced Lawhorn because there is a reasonable probability that, but for his unprofessional error, the result of the sentencing proceeding would have been different."

My question for the 11th Circuit Circuit Court of Appeals is simple, if Mr. Lawhorn's attorney is this incompetent during the sentencing phase of the trial, how can you say his lawyer was competent during the trial itself? 

Furthermore, the 11th Circuit disagreed with U.S. District Judge U.W. Clemon of Birmingham, who in 2004 had overturned Lawhorn's conviction, ruling that his confession had been obtained improperly and should be suppressed. But the state attorney generals office appealed to the 11th Circuit, which resulted in last week's order reinstating his conviction.  Judge Clemon ruled correctly that Mr. Lawhorn's right to counsel had been violated and any confession should have been suppressed.  Mr. Lawhorn gave a confession five days after asking to see a lawyer and was never provided one.  This is a basic fundamental right and was clearly violated.  Yet, the 11th Circuit Court of Appeals, in its infinite wisdom, could care less.  Some might argue that Mr. Lawhorn is getting what he deserves, but its a slippery slope to oppression when your basic rights are trampled.

My office will fight against this kind of oppression at every turn.  If you find yourself in trouble with the law, or you find your rights being violated in the State of Alabama, the lawyers and attorneys at my office will work tirelessly to defend your Constitutionally protected rights.  Just like John Adams, Thomas Jefferson and the founders of this country, your rights to fair and impartial trials, your rights to competent representation, your right to be free of unreasonable searches and seizures of your person and property,and your personal freedom are my ultimate goals.  I am a Birmingham, Alabama attorney and lawyer who will do whatever it takes to defend your rights.  I consider myself a patriot and criminal defense lawyer, and criminal defense attorneys and lawyers, along with my brothers and sisters in the military, are some of the last true patriots in America.  If you find yourself up against the might of the oppressive state and its powerful prosecution, contact the lawyers and attorneys of Eversole Law today.  I will defend your rights in all Alabama courts, the 11th Circuit Court of Criminal Appeals, and to the Supreme Court of the United States if necessary.

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The National Motorist Association has an excellent list of Birmingham, Alabama speed traps.  The NMA also lists speed traps for those seeking to avoid Alabama speeding and traffic tickets throughout the state of Alabama.  The National Motorist Association also includes speed trap lists for several Alabama cities including:  Mountain Brook, Hoover, Pelham, Trussville, Irondale, Homewood, Vestavia, Leeds, Pell City, Moody, Cullman, Anniston, Gadsden, Bessemer, Alabaster, Huntsville, Montgomery, Montevallo, Mobile and throughout the state. 

If you have been charged with a speeding ticket in Alabama make sure you hire an experienced traffic and speeding ticket attorney to defend your charge.  The state will stack the deck against you, your license could be stake, along with increased insurance premiums and hefty fines.  You do not have to plead guilty to a traffic or speeding ticket and these charges are regularly dismissed with the proper attention from an experienced attorney. 

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As an Alabama criminal defense lawyer and attorney I have devoted my life to defending those accused of crimes.  I routinely represent clients in Birmingham and throughout the state of Alabama in Alabama DUI charges, Alabama Theft Charges, Alabama Drug Charges and crimes, Alabama and Federal Criminal Appeals, Sex Crimes including rape and sexual assault, as well as Alabama traffic and speeding tickets. 

I will defend your Constitutional Rights no matter the charge and no matter the circumstances.  Just because someone has been accused of an Alabama DUI or Drug Crime does not mean they are guilty.  Criminal charges are often obtained against innocent people or people who the state cannot convict.  You will increase your likelihood of a successful resolution to your situation by immediately contacting an attorney or lawyer who focuses his practice on Alabama criminal and DUI defense.  The very nature of a criminal conviction means that all criminal charges are serious charges and deserve serious attention.  Even a single DUI conviction for example can land you in jail, promises significant fines in the thousands, loss of drivers license, you could possibly lose your job, your security clearance at work, or maybe not even get a job because of the background checks that many companies are performing these days.  Your car insurance will surely sky rocket and you could lose your neighbors respect.  Likewise, just one conviction for possession of a controlled substance requires a minimum one year jail sentence. 

The state and the Alabama prosecutors must present evidence in court that would allow a jury of your peers to find you guilty beyond a reasonable doubt.  My job as an Alabama criminal defense lawyer and attorney is to make sure the jury has that kind of doubt.  Beyond a reasonable doubt is a high standard to leap and a good Alabama DUI and criminal defense attorney can accomplish wonders.  In fact, in many instances, especially in DUI and Drug charges, it is possible to have these cases dismissed or reduced prior to any trial.  If you have been charged with a crime in Alabama, and you cannot afford to lose, call the Alabama criminal defense lawyers and attorneys at Eversole Law today.  My contact information listed on this site rings my personal cell phone directly.  I will answer your call and handle your case from beginning to end. 

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I practice Alabama criminal and DUI defense in the following counties and municipalities: 

In the Birmingham, Alabama Metro area the lawyers and attorneys of Eversole Law routinely defend Alabama criminal and DUI cases in the following courts:

Jefferson County Circuit Court, Jefferson County District Court, Adamsville Municipal Court, Argo Municipal Court, Birmingham Municipal Court, Bessemer Municipal Court, Branchville Municipal Court, Fairfield Municipal Court, Fultondale Municipal Court, Gardendale Municipal Court, Homewood Municipal Court, Hoover Municipal Court, Hueytown Municipal Court, Irondale Municipal Court, Kimberly Municipal Court, Leeds Municipal Court, Morris Municipal Court, Mountain Brook Municipal Court, Odenville Municipal Court, Pleasant Grove Municipal Court, Springville Municipal Court, Trussville Municipal Court, Vestavia Municipal Court, Warrior Municipal Court

In the Shelby County, Alabama area the lawyers and attorneys of Eversole Law routinely defend Alabama DUI and criminal cases in the following courts:

Shelby County Circuit Court, Shelby County District Court, Alabaster Municipal Court, Calera Municipal Court, Columbiana Municipal Court, Harpersville Municipal Court, Helena Municipal Court, Hoover Municipal Court, Pelham Municipal Court, Vincent Municipal Court

Other areas of Alabama the lawyers and attorneys of Eversole Law routinely defend DUI cases include:

Tuscaloosa County Circuit Court, Tuscaloosa County District Court, Tuscaloosa Municipal Court, Northport Municipal Court, Chilton County Circuit Court, Chilton County District Court, Jemison Municipal Court, Thorsby Municipal Court, Blount County Circuit Court, Blount County District Court, Blountsville Municipal Court, Altoona Municipal Court, Talladega County Circuit Court, Talladega District Court, Talladega Municipal Court, Lincoln Municipal Court, Sylacauga Municipal Court, Childersburg Municipal Court, Tallapoosa County Circuit Court, Tallapoosa County District Court, Alex City Municipal Court, Dadeville Municipal Court, Lee County Circuit Court, Lee County District Court, Auburn Municipal Court, Opelika Municipal Court, Montgomery County Circuit Court, Montgomery County District Court, Montgomery Municipal Court, Prattville Municipal Court, Elmore County Circuit Court, Elmore County District Court, Wetumpka Municipal Court, Millbrook Municipal Court, Bibb County Circuit Court, Bibb County District Court, Cullman County Circuit Court, Cullman County District Court, Cullman Municipal Court, Hanceville Municipal Court, Madison County Circuit Court, Madison County District Court, Huntsville Municipal Court, Madison Municipal Court, Etowah County Circuit Court, Etowah County District Court, Gadsden Municipal Court, Calhoun County Circuit Court, Calhoun County District Court, Anniston Municipal Court, Oxford Municipal Court, Jacksonville Municipal Court, Orange Beach Municipal Court, Gulf Shores Municipal Court, Loxley Municipal Court, Foley Municipal Court, Crenshaw County Circuit Court, Crenshaw County District Court, Escambia County District Court, St. Clair County Circuit Court, St. Clair County District Court, Pell City Municipal Court, Walker County Circuit Court, Walker County District Court, Jasper Municipal Court, Hollywood Municipal Court, Morgan County Circuit Court, Morgan County District Court, Decatur Municipal Court

THIS LIST IN NON-EXHAUSTIVE. WE DEFEND DUI & CRIMINAL CASES IN ANY COURT IN THIS STATE.

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Many counties and municipalities in Alabama offer drug offenders some type of deferred prosecution or drug court for drug possession and use charges.  Drug court is a tedious process that usually involves anywhere from six to nine months with constant court supervision.  An Alabama drug court will require frequent and random drug testing.  Any failure in regards to testing is normally harshly penalized.  If you are not sure you can stay off drugs and alcohol during the entire length of the program, drug court may not be for you.  Failing to take a drug test when required, failing an administered drug test, or receiving additional charges can lead to more jail time and fines.  It may also have you thrown out of drug court and your charges being brought again in an unhappy and unfriendly criminal court.  Drug court is advisable in many cases because upon completion of the program your charges are dismissed and your permanent record will not be jeopardized.  An Alabama drug court can also be a very expensive proposition.  Fines range in the thousands. 

Needless to say, anyone charged with a drug crime in Alabama needs an experienced Alabama criminal defense and drug charge lawyer and attorney.  An experienced Alabama drug possession or possession of controlled substance lawyer can navigate the tricky waters of Alabama drug court proceedings.  An experienced Alabama drug lawyer and attorney will be able to make sure you are a good candidate for drug court and make sure you have no other means to challenge your Alabama drug charge.  No one should automatically enter an Alabama drug court or other deferred prosecution program without first consulting an experienced Alabama criminal defense lawyer and attorney.  Drug courts are often available for those charges with possession of marijuana or unlawful possession of controlled substances, even if it is not your first offense.  However, there may be ways to challenge the search and seizure of the drugs or have the case dismissed because of some other police misconduct.  The moral of the story is simple, do not blindly plead guilty to an Alabama drug charge of any kind.  Prosecutors are not your friend and they want a quick and easy resolution.  Do not give it to them.  Make them prove you are guilty in a court of law, or at least, make sure your attorney thinks that it is in your best interest to enter an Alabama deferred prosecution program or similar drug court after viewing all the evidence and circumstances of your charge.  It is quite possible to have Alabama drug charges dismissed without a trial and without pleading guilty. 

Call the Alabama criminal defense and drug charge attorneys and lawyers of Eversole Law today.  We make sure the police have a solid case before we advise a drug court type plea deal.  I am an aggressive Alabama criminal defense attorney and I an not afraid of a trial.  Unfortunately, there are way too many Alabama lawyers who are afraid of trial.  A criminal defense attorney afraid of trial is like a hammer without a nail, does little good and is often only successful in smashing things. 

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In some circumstances it is possible to negotiate a deferred prosecution for an Alabama DUI charge.  A deferred prosecution is basically where the person charged with an Alabama DUI agrees to plead guilty.  However, as long as the defendant completes certain requirements(which differ slightly by jurisdiction), the Alabama DUI charges are dropped.  A typical Alabama DUI deferred prosecution requires the defendant to pay fines, attend alcohol abuse classes, take random drug and alcohol screenings, and complete community service.  Normally the defendant will have approximately six months to complete these requirements.  If these requirements are met, the prosecution dismisses the Alabama driving under the influence charge.  Deferred prosecution is sometimes advisable when there are no other grounds to have your Alabama DUI charge dismissed, when an attorney believes he cannot win a jury trial, or when the client/defendant wants to end his DUI nightmare quickly and for less money.  It is a beneficial strategy because your permanent record is at stake.  Just one DUI conviction can end jobs, increase insurance, stay on your record forever, etc. etc.  Deferred prosecution eliminates most of the serious and lasting consequences of an Alabama DUI charge.  Deferred prosecution can be offered to those with multiple Alabama DUI convictions as well.

As an Alabama DUI lawyer and attorney, I have participated in numerous deferred prosecution negotiations.  It is essential that anyone charged with a DUI in Alabama hire an experienced Alabama DUI lawyer who can get you the best deal possible.  Deferred prosecution is not guaranteed nor offered to everyone.  Unfortunately, I have seen way too many Alabama DUI defendants go to court without hiring an attorney and end up with a permanent criminal record when they would otherwise qualify for deferred prosecution. 

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