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posted on 3/26/17

In a previous post, we examined the per se portion of the DUI law. Per se basically means “it is what it is” and there is no room for interpretation. For purposes of this section, if the defendant has a BAC above the legal limit, the defendant is guilty, even if the defendant was not “intoxicated” in the everyday sense of that word.

However, in about 20% of DUI cases, prosecutors cannot use the per se provision because the defendant refuses to take a breath test. Officers could obtain a search warrant and extract a blood sample over the defendant’s objections, but few officers take this extra step. So, court prosecutors must rely on circumstantial evidence, and this evidence is always subject to interpretation.

Circumstantial Evidence at the Scene

Officers only need field sobriety tests.

  • Walk and Turn: The defendant must “walk a straight line” heel to toe backwards and forwards.
  • Horizontal Gaze Nystagmus: The defendants must follow fixed points, usually the tip of a pen or a fingertip, using only their eyes and without moving their heads.
  • One Leg Stand: The defendant must hold one leg up in the air at a certain angle for a certain amount of time.

In all three, officers are trained to look for clues of intoxication. At trial, officers almost always testify that the defendant “failed” each test. Sometimes they base this assessment on technicalities, like starting with the wrong foot or a nearly imperceptible sway. Fortunately, the jury has the final say on whether the circumstantial evidence means that the defendant was intoxicated or just nervous.

Contact Experienced Attorneys

Circumstantial evidence DUI prosecutions are inherently weak. For a confidential consultation with an experienced criminal law attorney in Schaumburg, In a world of chaos, pain, survival of the fittest and ever increasing crime… it is critical not to just protect yourself with tools but also with the right people on your team. My choice is Glasgow & Olsson. His impeccable track record & experience makes him untouchable. With an empathetic heart, shoulder to cry on, he listens and will help you through the worst & best of times. I highly recommend him for retainment if you have a CCL, need to create a trust/will/prenuptial/power of attorney/etc., opening a business, going through a separation or custody battle or if you were involved in a crime-DUI, murder, etc. Tom’s team is THE BEST. You are welcome to use me as a referral!

Ania