DUI Defenses in Georgia

DUI lawyers must constantly stay on top of emerging issues in the field. It takes a lot of time and attention to stay familiar with the latest research to make sure he or she is not overlooking a viable defense for your case. There are a number of DUI defenses including the following that attack the admissibility and legal problems of the breath sample. For more discussion on how to challenge the field tests, go the the field sobriety test page.

  1. Beyond a reasonable doubt. This defense is the most important defense in any criminal case, including DUI cases. This is an underpinning of our constitution. You are cloaked with the presumption of innocence until the State proves otherwise beyond a reasonable doubt. This is the best defense for "refusal" cases where there are no field tests and no breath sample.
  2. Rising BAC. You have heard the expression that someone has had "one for the road." If someone has consumed alcohol in close proximity to the time of driving, chances are it is still being absorbed and is not in the bloodstream yet. The accused is over the limit at the jail when tested, but not when he was driving.
  3. Gender Bias. There are several issues unique to women and their bodies that mean they are not always treated fairly by our system. The breath testing machines are designed with a man in mind. For example, women on average have significantly less lung capacity than men. Some women simply cannot get the machine to register because it wants them to blow more than their lung capacity. These subjects are made to look uncooperative when officers say that the "refused" to blow in the machine. The ones that do get it to register, have to blow out all of the air in their lungs to do so, meaning their BAC's will register higher than their male counterparts. Also see the expired breath temperature below. During the menstrual cycle, a woman's body temperature rises.
  4. Expired Breath Temperature. The machines are programmed to operate on the principle that the breath sample has a temperature of 34 degrees centigrade. An increase in temperature (fever) of one degree can raise a breath sample by .03.
  5. Breath Volume and "deep lung air". Vital capacity for a subject's lungs is not the same. Averages males range from 2245 to 6550 milliliters of air, with 4500 milliliters being the average. Females range from 1825 to 3200, with 2800 being the average. The machine presumes to measure only the deep lung air. The male with a 2245 vital capacity will blow higher than the one with a 6550 lung capacity if the blow for the same amount of time.
  6. Non-specificity. Some methods of testing breath are specific for ethyl alcohol, like Gas chromatography. However, the Intoxilyzer 5000 can confuse other substances with similar chemical compositions as ethyl alcohol. Acetone is one of several chemicals that can be confused with ethyl alcohol on the machine.
  7. RFI or Radio Frequency Interference. Police officer's radios can interfere with the working of the machine. They come equipped with RFI detectors, but they are rarely checked or calibrated.
  8. Absorption. Breath testing is predicated on the assumption that all the alcohol consumed has been fully absorbed into the blood stream and that elimination is occurring. Elimination rates are both stable and predictable, while absorption rates are unpredictable.
  9. GERD and other medical conditions. Commonly called "reflux" by lay persons not in the medical field. Gastro Esophageal Reflux Disease can cause inflated BAC's because the esophagus serves as a "wick" for the alcohol still sitting in the stomach. This condition can cause vapors from the stomach to rise and be expelled out with the breath, raising one's BAC. Also watch for diabetes, esophageal and hiatal hernia, liver disease and even irregular breathing patterns.
  10. Hematocrit. Hematocrit is the relationship of plasma to cellular material in the blood. All breath testing machines assume that the subject's hematocrit is normal. No distinction is made between male or female differences either. The higher the hematocrit, the lower the the concentration of water in the blood. This can account for large errors in breath testing.
  11. "Atkins Diet." Low carb and high protein diets can effect the body and ketosis. During ketosis, the body burns stored fat for energy, which is the reason you lose weight on these diets. A side effect of this process is that when consuming something that is high in carbohydrates (like alcoholic beverages) results in the body producing isopropyl alcohol. This can raise the BAC reading in breath testing machines since they can't distinguish isopropyl alcohol from ethyl alcohol.
  12. Mouth alcohol. Immediately after drinking you will register positive for alcohol on any breath testing machine despite the fact that it is not in your blood stream yet. After all, they are testing breath and not really testing your blood. Other items in the mouth can trap alcohol as well and lead to inflated results. Smokeless tobacco, dentures, mints and lip balms can taint the results.
  13. "Disconnect." This is nothing more than a common sense argument to the jury. Sometimes people blow a high number but exhibit very few or none of the symptoms that you would expect to go along with that number. It calls the prosecution's whole case into question and lends itself to be paired with one or more of the above defenses.
  14. Bad Stop. If there was no reason for the stop, then all the fruits of the poisonous tree get suppressed. These means that all the evidence that was obtained as a result of the illegal stop is inadmissible in court.
  15. Bad Arrest. OK, assume the above-referenced stop was a good one. Suppose the officer just smells alcohol and arrests you for DUI. The odor of alcohol is not probable cause for a DUI arrest. This is also grounds for a motion to suppress.
  16. Partition Ratio. All breath testing machines assume a partition ration of 2100-to-1 to convert a breath sample to the corresponding blood alcohol level. The problem is that the 2100-to-1 partition ratio is the average. People can range from 1100-to-1 up to 3500-to-1. There is no way of knowing what your partition ratio is or was on at the time you were tested. If you have a partition ration of 1300 and a breath test of .11, you are actually a .07, under the legal limit!
  17. Implied Consent. The officer must read you the Georgia Implied Consent Notice after arresting you for DUI. If he fails to read it, the breath sample can be suppressed.