Is there any sort of loophole or technicality that can help me win this case?

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Is there any sort of loophole or technicality that can help me win this case?

I received a yellow piece of paper that was not signed by any officer or notarized, the first officer on the scene repeatedly shoved his breathalyzer test in my face until he got enough breath to get a reading. I broke my sternum I told the officer repeatedly that I could not breath and was gasping for air. they said I was not cooperating because I refused to blow. Seems as though they did everything against protocol and that I should have a fighting chance to beat this. They got me at .14 and I have a doctor that says tramatic experience will instantly make your BAC spike immediatly.

Asked on June 25, 2012 under Criminal Law, Nebraska


Russ Pietryga / Pietryga Law Office

Answered 12 years ago | Contributor

Every DUI case is unique.  The loophole/techincality, you mention, usually comes in the form of a Motion to Suppress & Dismiss.  That said, every fact of your case has to be looked at to see if there was some type of state or federal constitutional violation.

Usually, your attorney will look to see if there was "reasonable suspicion" to stop you.  If there was, did the officer exceed the "scope" of the stop?

If the officer had "reasonable suspicion" to stop and he did not exceed the scope of the stop; did the officer have "probable cause" to arrest?

"Probable cause" to arrest usually is acquired by evaluating a persons performance of field sobriety tests.  And, of course, if the officer relied on field sobriety tests to establish probable cause to arrest; did the officer conduct the tests properly?

Lastly, was the breath machine operating correclty and did the officer follow proper procedure. 

So, in short, there may be a loophole/technicality that can help your case.  However, your attorney will have to investigate all the discovery.  The discovery will usually consist of the following: DUI/Summons and Citation, DUI report form, video, intoxilyzer affidavitys, etc.

Hope this helps.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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