The first step in developing a successful defense strategy for DUI is to get the defendant’s history and background information, including his or her normal use of alcohol, drugs, and other medications. The second step involves discovering what he or she was doing in the hours immediately before the arrest. Third is to visit the scene of the arrest, as well as the location of any previous bars, restaurants, or parties the defendant had visited that evening. At the scene, if there are tire tread marks, they should be measured, and, if possible, an accurate drawing of the scene should be made.
As soon as possible, a copy of the criminal court complaint should be obtained from the court or from the attorney who may have represented the defendant at his initial arraignment. To do this, a notice of appearance should be filed with the court that will allow the court or the arraignment attorney to release all documents to you as the newly retained lawyer. Next, I have an investigator attempt to speak to all the witnesses who were with the defendant or who may have been at the scene at the time of his or her arrest. If the case is going to go to trial, I will try to contact a Breathalyzer expert and, if there was an accident, an accident reconstruction expert.
If the driver failed to take the Breathalyzer test, he or she is entitled to a hearing in which the accused can explain the reason for his or her refusal. If the explanation is not satisfactory to the hearing officer at the Motor Vehicle Bureau, his or her license will be suspended for six months consecutive to any suspension or revocation that he or she may receive for a conviction. The fact that a defendant refuses to take a Breathalyzer test is admissible as evidence against him at a trial and entitles the prosecution to an adverse inference charge at the end of the case.
For a defendant to obtain a favorable ruling, reference must be made to VTL Section 1192 Sub (2)(f). The officer must persuade the hearing officer that he had reasonable grounds to believe that the driver was in violation of VTL Section 1192 and that the arrest of the person was lawful. Once that is established, the statute requires that the driver was given sufficient warning in clear, “unequivocal language” of the effect of his or her refusal, to wit, that his license would be immediately suspended and subsequently revoked if he persisted in his refusal. Persistent refusal requires the driver to say no at least two times. See VTL Section 1194(2)(b)(1) and VTL Section 1194(2)(c).
