Can a DUI Get Dismissed?

Being charged with driving under the influence (DUI) isn’t something anyone wants to go through. While it might not ruin your life, it can definitely have a negative impact, affecting your ability to drive and staying on your record for years. But there could be hope – if you haven’t yet been convicted, you might be wondering, “Can a DUI get dismissed?” The answer is “yes,” there’s a small chance your case could be dismissed, and you could have other options, as well. 

What Could Be Grounds for a Dismissal of a DUI?

While they’re uncommon, DUI dismissals certainly do happen. It usually involves some sort of procedural error on the part of the arresting officer. Below are a few ways to get your DUI dismissed.

Can My DUI Get Dismissed Even If I Take the State’s Test?

Yes, if you consent to the State’s test during your DUI stop, but it wasn’t done correctly, your case could be dismissed. Here are the details: During a DUI stop, the officer will ask if you are willing to take the State’s test. (You can refuse, but this can be used against you in court.) If you consent, it’s usually administered in the form of a breathalyzer test, but it can also be a blood test. The officer must follow a certain set of procedures when administering either test.

The Board of Tests for Alcohol and Drug Influence has established a very specific set of rules officers must follow for both breathalyzers and blood tests. Not only must an officer follow the outlined procedure perfectly, but the State also has the burden of proving it was followed if questioned by a defendant. This was determined in one of Oklahoma’s landmark DUI cases, Westerman v. State. Failure to follow these procedures could mean your test results are inadmissible – and that means your case could be dismissed.

When could your case be dismissed due to procedural violations? Most violations occur during the “deprivation period,” which is a 15- to 20-minute timeframe after the officer pulls you over. During this period, they must ensure you don’t drink any alcohol and don’t have anything in your mouth. This is the only way to be sure the breathalyzer gives a correct reading.

One common example of when a reading could be inaccurate is if you’re chewing gum with an alcohol-based sweetener. Similarly, any alcohol remaining in your mouth from previous drinks could give a false reading of intoxication. The purpose of waiting 15 to 20 minutes to use the breathalyzer is so these alcohol remnants don’t skew the breathalyzer result.

Can My DUI Get Dismissed If I Don’t Consent to the State’s Test?

As we mentioned, you can refuse the State’s test, but in most cases, it won’t help you get your case dismissed because it can be used against you in court. However, there is one example in the context of a DUI where your case could be dismissed if you don’t consent: If an officer has medical staff perform a blood draw to test for alcohol or drugs, or sends an existing blood sample for testing, without your consent.

This might happen if you’re unconscious, for example after an accident – in that case, you cannot consent. It could also happen if you’re brought to the hospital for an injury, the medical staff takes a blood sample for another purpose, and the officer has it tested without your consent.

This is illegal because it violates your constitutional right to be protected from unreasonable search and seizure. Many people don’t know this right applies to your person, which means that an officer taking or testing your blood without your consent is an illegal seizure. This was established in Oklahoma in Stewart v. State, where the court held that the evidence could not be admitted.

The State can choose to move forward without the blood test and instead use other evidence, but it significantly weakens their case. This can result in a dismissal of your DUI.

Can My DUI Get Dismissed If I Was Searched Illegally?

Yes – your right to be protected from unreasonable search and seizure also applies to your vehicle. That means that even if an officer finds evidence of alcohol or drugs in your car during a DUI stop, your case could be dismissed if they didn’t have the right to stop you or search you in the first place.

So what is an illegal search? There are certain criteria an officer must meet in order to search your vehicle. First, they must have a reason for the traffic stop, for example if you ran a stop sign or crossed over the line in the road. Then they must have “reasonable suspicion” that you’re under the influence of drugs or alcohol, for example slurred speech or bloodshot eyes. If this criteria is not met and the officer searches your vehicle anyway, anything they find (often drugs or empty bottles of alcohol) cannot be used as evidence at trial.

If an illegal search happens, your attorney will file a pretrial motion to have the evidence thrown out. Both you (the defendant) and the State will present your arguments, and the judge will make a decision. If the judge decides to throw out the State’s evidence, your case isn’t automatically dismissed. The State can choose to move forward without the evidence from the search, but their case becomes much weaker.

One reason the State would move forward with your case is if you took the State’s test and it showed signs of intoxication. However, if you did not take the State’s test, the lack of drug or alcohol evidence in your car could lead to a dismissal. That’s what happened in the case of McGaughey v. State, where evidence of drugs in the vehicle could not be admitted and his case was later dismissed.

It’s important to note that an officer can always search your car if you give them permission. They don’t have to have probable cause if you say “yes,” because you’ve given them your consent. Remember that a vehicle search is never in your best interest – anything discovered can only hurt your case. If an officer asks to search your vehicle, we recommend you refuse.

How Often Do DUIs Get Dismissed?

The truth is that it can be difficult to get a DUI dismissed. You’ll face an uphill battle proving that an officer violated proper procedure or didn’t have probable cause to pull you over or search you. Even if the officer says they smelled alcohol on your breath, that’s enough probable cause in a court of law. Your best chance to get your DUI dismissed may be if the officer didn’t follow proper procedure for the breathalyzer or blood test.

Depending on the facts of your case, your attorney might advise you to take a plea deal rather than try to get your case dismissed right away. For a first-time DUI, you would most likely take a deferred sentence, which means your case is dismissed after you complete probation. If you have multiple DUIs, you might be able to get a suspended sentence and avoid jail time.

The Bottom Line

Refusing to take the State’s test or the standardized field sobriety test isn’t enough to receive a dismissal – but there are other reasons your DUI case might disappear. Ultimately, your case is dismissed if the State thinks there won’t be enough evidence at trial to win the case. If you believe an officer may have obtained evidence in your case illegally, it’s vital that you hire a defense attorney with extensive DUI experience, like the Tulsa DUI Guy. Contact us for a free consultation to see if you could get your case dismissed.