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Roger, Lawyer
Category: Criminal Law
Satisfied Customers: 30909
Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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At approx. midnight A is driving on hwy not speeding & not

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At approx. midnight A is driving on hwy not speeding & not weaving he fails to turn on turn signal on several occasions (3-4) but traffic is light & no vehicles near him when he changes lanes. A is stopped asked if been drinking. A admitted to drinking two beers at a club. officer claims detected moderate oder of alcohol. Officer claimed A was moving his head following the pen when it was clear he was not ( nystagmus test). A performed the other tests without any difficulty,he looked like a man who had consumed no alcoholic beverages! There was no swaying in his stance nor slurred speech. Yet the officer arrested A & charged him with D.W.I. At the police station he was asked which test did he want to perform; breath test or blood test. He chose breath test, signed the form indicating he was advised he had the right to refuse the test & waived that right. Initially he was not told he could refuse either test. His B.A.C. test result was slightly above 0.8.
Q:Does he stand a chance to have the charges dropped at a hearing on a motion to suppress?
If so what legal theories would best afford him a chance to win?
Hi - my name is XXXXX XXXXX I'm a Criminal Law litigation attorney. Thanks for your question.

It is certainly possible to challenge the test results. Generally, breathalyser machines have a slight margin of error (plus or minus 5 or .005, and if the BAC was right at .08 or up to .085, it may be that the court would dismiss the charges based on the recognized margin of error the machine has.

Also, there are literally hundreds of defenses to a breath test - - whether or not the officer observed you for at least 20 minutes immediately before the test, whether you had taken anything by mouth, whether the mouthpiece was changed between blows made, whether the machine was properly calibrated, etc.

It would be well worth it to have an attorney review your ticket, arrest report, etc. to find grounds to challenge the citation. However, your strongest claim would likely be the margin of error for the breathalyser.
Customer: replied 3 years ago.

What about the argument that officer had no reasonable suspicion or probable cause to arrest A for D.W.I. Could cite him for not using turn signal but b/c outstanding performance in F.S.T.not sufficient probable cause to arrest for D.W.I.?

If you're driving a vehicle on a public road, it is SO EASY for an officer to establish probable cause. All they have to claim is that there was reasonable suspicion that something illegal was taking place ,and that's good enough.

Thus, trying to prove no probable cause existed is very hard - - especially if there's a claim that you didn't use your turn signals.
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