Common DUII Defenses

When evaluating possible defenses in your driving under the influence of intoxicants (DUI/DUII) case, a experienced DUI lawyer will carefully examine all the evidence produced by the police and in some cases interview witnesses and examine relevant places (bars, a certain stretch of highway) to determine what possible defenses may be available to the accused. Some common DUII defenses include:

The prosecution often relies on the arrest police officer’s testimony regard your ‘bad’ driving. Police observations of ‘bad’ or ‘intoxicated’ driving include:

  • Driving too slow, well under the speed limit.
  • Irregular speed. Fast then slow then fast again.
  • Weaving. This can be within the lane or between the lanes. Officers will often consider moderate variances between the double yellow and the shoulder line to be ‘weaving’.
  • Crossing the center lane.
  • Following the car in front too closely.
  • Inattentive. Light turns green and you take too long to proceed through the intersection.
  • Running lights or stop signs.

The key to attacking these claims is to show the jury that there could be many other explanations for the these driving behaviors other than intoxicated driving. Answering a cell phone, changing the radio, talking to the passengers. Often a good attorney can get the officer to admit that there are many reasons other than impairment that someone may make these types of driving errors.


The officer will usually testify as to the suspect’s appearance and demeanor in an attempt to portray the actions as consistent with impairment. Claims include:

  • Bloodshot, glassy, watery eyes
  • Slurred or incoherent speech
  • Inappropriate remarks
  • Stumbling or losing balance
  • ‘thick fingers’ when attempting to get ID out of the wallet.

The are many defenses to these observations that don’t have anything to do with intoxication, such as:

  • Lack of sleep
  • Allergies
  • Contact lenses
  • Stress related to personal issues
  • Medications
  • Food recently consumed (hot peppers, sauces)
  • Nervousness at the prospect of being stopped by the police
  • Physical impairments
  • The fact that the officer has never met the accused before and doesn’t know his normal method of walking or talking or behaving.


In every DUII case the police will ask you to perform ‘tests’ known as field sobriety tests (FST) designed to test your mental alertness and physical dexterity. Common tests given are:

  • Walk and Turn. Officer watches you as you walk down an imaginary line touching heel to toe.
  • Horizontal Gaze Nystagmus (HGN). This is the eye test where the officer has you stand still and follow a pen or the tip of his finger with your eyes. The officer is looking for a ‘pronounced jerking’ of the eye that indicates impairment by alcohol.
  • One Leg Stand. Subject is asked to stand on one leg while the officer looks for swaying, hopping, arm raising or other balance issues.

Defenses to the FSTs are similar to the defenses raised with other the other officer observations. Lack of sleep, physical impairments or injury, age, weight, prescribed medications, can all be raised to illustrate that these tests are not easy for ANYONE, even for those who are stone cold SOBER.

As far as the HGN is concerned, an attorney who is well versed in how the test is properly administered can often dismantle a police officer’s testimony. Often the police will have only a moderate grasp of the technical aspects of the test and when cross examined by a well informed, knowledgeable, defense attorney their previous testimony can often crumble as the officer demonstrates his lack of knowledge and ability when it comes to this highly technical test.

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