There are several defenses to Underage Drinking and Driving. First, when the police interact with a driver, they are bound by constitutional limits which prohibit them from violating the constitutional rights of any driver. If the police overstep their bounds, it could be a basis for suppressing (throwing out) evidence the police recover from a driver—including evidence of the smell of alcohol or other incriminating evidence.
Some examples of DWI-specific defenses include:
- Illegal traffic stops— when the police stop a motor vehicle they are “seizing” the occupants. To stop a motor vehicle, the police must have what is called a reasonable articulable suspicion of criminal activity. The reasonable suspicion can be very minor, such as weaving within your lane of traffic, failing to signal a turn, or drifting onto the fog line. However, if the police don’t have reasonable suspicion, and they stop a vehicle, evidence they get from that illegal stop could be suppressed or thrown out, leaving the state with no evidence to prosecute the case.
- Illegal seizures—In some cases the police may see a driver even if they are not driving on the road. For example, they might pull in behind a parked car or yell at somebody to come and talk to them. If the police put a person in a position where they would not feel free to leave, they are “seized” and there must be reasonable suspicion of criminal activity. If not, that evidence could be subject to getting thrown out.
- Improperly asking for a preliminary breath test—In most Underage Drinking and Driving cases the police will have the driver blow into a preliminary breath test (PBT). For the police to ask a driver to submit to a PBT, they must have reasonable suspicion that the person is drinking and driving. Again, this is a very low bar and if the police smell alcohol on an underage driver, that could be enough suspicion to make them blow into the PBT.
Substantive Defenses for Underage Drinking and Driving
The above defenses focus on whether the police violated a driver’s constitutional rights. In addition to defenses of attacking the constitutionality of what the police did, there are other defenses attacking the evidence in Underage Drinking and Driving case.
- Was the person in physical control? To prove Underage Drinking and Driving case, the state must prove that the driver was in “physical control” of the vehicle. Unfortunately, in most cases being in the car with the keys can be enough to show physical control even if the car is not running, or the driver is merely in the car to “sleep it off.” However, if there is a situation where the police do not actually see the person driving, the trying claim that they were, a defense is that the state can’t prove the driver was in physical control.
- Challenging the breath test(s)—In Underage Drinking and Driving cases the state doesn’t need to prove that there was a certain amount of alcohol in the driver system, only that there was some alcohol in their system. This can be proven by the police administering a PBT which shows that there was alcohol in the driver’s system. However, if the driver takes a PBT and it shows .08 or more, the driver will be required to take the “official” test at the station. The machines that they used to are not infallible. There can be numerous problems with the way the test was administered, whether or not there were some sort of interfering substance, or problems with the control sample them machine uses.
- Right to an attorney—When someone is arrested and asked to take a breath test at the station, they have a “limited” right to consult with an attorney before deciding about testing. If the police impede that right or don’t give the driver sufficient time, the test could be inadmissible because the officer violated the driver’s limited right to speak with an attorney.
- Right to an additional test—After a driver takes the official breath test, get their own independent test. The police are not obligated to inform a driver of this right, but if a driver does ask for an additional test and the police or the jail impede their ability to request that test, the state cannot use their test against the driver.