Can a DUI be dismissed?
Whether a DUI can be dismissed is a question that many clients ask their lawyers after being charged and prior to their court date. The answer to this question to a large extent depends on the strength of the evidence that the prosecution has, and whether that evidence can be called into question.
Nevada DUI laws have mandatory penalties, so it is essential to be represented by a lawyer for any DUI, and it is also important to not enter a guilty plea. Under our system of law, the presumption is that a defendant is “not guilty” until found guilty by a court. Even if you feel as though you are guilty as charged, pleading guilty to a DUI will result in mandatory penalties being imposed and the court will never consider or question the evidence. Until you are found guilty by the court, you are in the eyes of the law “not guilty” and your plea should reflect that understanding. With that in mind, it is possible to have DUI charges dismissed, but it is a rarity. In most cases, charges are not dismissed without a guilty plea to a lesser charge through a process known as a plea bargain.
The following are several strategies and circumstances which may result in a dismissal for your DUI. Your lawyer will know when and under what circumstances any of these DUI defenses might be effective.
The Exclusionary Rule
The exclusionary rule defense has to do with whether the police officer had a reasonable suspicion of impaired driving when he initiated the traffic stop. If you were breaking no traffic laws when stopped, the entire traffic stop could be declared illegal and be excluded from evidence through a legal technicality known as the exclusionary rule, even if the officer found overwhelming evidence of impairment after the stop.
The exclusionary rule holds that if your rights under the 4th Amendment to the U.S. Constitution of protection from unlawful search and seizure were being violated due to police not following proper procedure, that any evidence gathered as part of the investigation must be excluded from consideration by the court. If appropriate, your attorney may file a motion with the court prior to trial to exclude evidence found during the traffic stop.
Challenging the Field Sobriety Test
A Field Sobriety Test (FST) is a test of physical ability which experience has shown that most impaired people can’t perform well. There are three main types of FST’s: The Horizontal Gaze Nystagamus (HGN), the walk and turn (WAT), and the One Leg Stand (OLS). These tests given either individually or in combination with the other tests have been shown to be effective in determining impairment due to alcohol and other drugs, however, they are subject to interpretation by the tester and therefore human error in the results. The findings of the FST will be questioned by your lawyer when the officer is cross examined.
Challenging the Breathalyzer test results
Breathalyzers are mechanical devices into which you blow after which it calculates a Blood Alcohol Concentration (BAC). Properly maintained and calibrated, and operated correctly, a breathalyzer can be very accurate in its calculation. During cross examination, your lawyer may question the calibration and operation of the breathalyzer to bring reasonable doubt into whether it was maintained, calibrated and operated correctly.
Your charging officer is not present in court
It happens on occasion due to conflicts with other court dates or assignments. You could get lucky and have your arresting officer not show up for court without notice. In such cases, without an accuser present to testify to your violations of the law and his actions during the traffic stop and arrest, your lawyer would move for a dismissal of charges.
The Defenders represents those charged with DUI
DUI dismissals are rare. Keep in mind, that there is a public policy imperative to remove impaired drivers from Nevada roads. However, the police and the courts must follow correct procedure in order to obtain a conviction. The lawyers of The Defenders will be on your side arguing for your rights and making sure you all parties to the case follow the rules. DUI’s are one of our specialties and our results speak for themselves. If you have been charged with a DUI, call our office today at (702) 333-3333 or click the green button at the bottom of the page.
