Maybe. We need to look at two separate legal proceedings that normally arise when an individual has been charged with driving under the influence. The first is the criminal proceeding; the second is the Department of Motor Vehicles (DMV) hearing that usually accompanies the criminal case. It is the DMV that determines if you lose your license due to a DUI charge.
The primary basis in the criminal case for attempting to get a case dismissed is to challenge the stop. A law enforcement officer must have probable cause to contact a driver for an alleged violation of the DUI laws. For example, if the sole reason the driver was pulled over was a crack at the top of the passenger side windshield, you may be able to argue successfully that the stop was illegal. The driver’s view was not obstructed (a requirement for this kind of stop) and there was no other probable cause for the stop. On the other hand, if the driver blasts by a cop car going 75 mph in a posted 45 mph, or runs a red light and causes an accident, then there is probable cause for the contact. In the first instance there is solid ground for seeking to have the case dismissed.
Once the prosecutor establishes probable cause for the stop, the chances of having the case dismissed are slim. This is true even if you can establish that the cops erred in the roadside sobriety tests, or in administering a subsequent blood or breath test. The blood saturation level for alcohol or drugs is only one piece of evidence. I have yet to represent a DUI case where the arresting officer’s report did not state, “ I smelled the strong order of an unknown alcohol beverage on or about the person, his eyes were bloodshot, and his speech slurred” or something similar. There are other technical grounds that may lead to a dismissal, but generally speaking, if the stop is good the chances of getting the criminal case dismissed are low. Especially where there has been an accident and there are witnesses.
Over on the motor vehicle side of things, the chances are not much better. All states impose sanctions for DUI separate from the criminal case. You have minimal rights in the DMV hearing. States take the position that the right to drive is a privilege not a right. By obtaining a driver’s license you agree to certain conditions, including the condition that you voluntarily agree to take a breath or blood test if requested. You can challenge the basis of the stop at the DMV hearing. Your success, or lack thereof may in part be determined by whether the hearing officer is trained in the law.
Your best shot at getting a DUI case dismissed at the DMV hearing is to request that the arresting officer be present for the hearing. My experience in Colorado as a Denver DUI lawyer is that about 1 out of 3 times the officer does not show up. If the officer fails to appear the case must be dismissed for failure to prosecute. I advise clients to always request the officer’s presence.
Thanks to our friend and contributor from The Law Office of Richard J. Banta, P.C. for their insight into DUI and criminal defense practice.