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Can a DUI Get Dismissed?

Sabah Khalaf
6 minute read

Being charged with a DUI is not the same as a conviction. While it is uncommon for a DUI to get dismissed, and usually involves some sort of procedural error on the part of the arresting officer, it certainly does happen. Below are a few ways a DUI can get dismissed.

Failure to Comply With the Board of Tests

During a DUI stop, the officer will ask if you are willing to take the State’s test. This is often administered in the form of a breathalyzer test and the officer must follow a certain set of procedures when administering it. Failure to follow the proper procedures could result in your test results being inadmissible, which would likely result in the dismissal of your case.

The Board of Chemical Tests for Alcohol Influence establishes the legal procedures the officers must follow. Not only must an officer follow these procedures perfectly, but the State also has the burden of proving they were followed if questioned by a defendant. This was determined in Westerman v. State.

What are some of these procedural violations? Most occur during the “deprivation period.” The deprivation period is the 15-20 minute timeframe after the officer pulls you over when they must ensure you do not drink any alcohol and do not have anything in your mouth. Officers must do this to guarantee the breathalyzer gives a correct reading. For example, if you are chewing gum with an alcohol-based sweetener, the reading could be inaccurate. Similarly, any alcohol remaining in your mouth from previous drinks could give a false reading of intoxication. When officers do not wait the required 15 to 20 minutes before performing the test, alcohol remnants in your mouth could skew the breathalyzer result and provide grounds for a dismissal.

Illegal Searches

Any evidence obtained from an illegal search after you are pulled over for a DUI is inadmissible. This means your case could be dismissed, even if an officer finds evidence of illegal substances or illegal activity in your car. There are certain criteria an officer must meet in order to search your vehicle. If this criteria is not met and the officer searches your vehicle anyway, anything they find (e.g. an open bottle of alcohol) cannot be used as evidence at trial.

It’s important to note that an officer can search your car if you give them permission. They don’t have to have probable cause if you say yes. 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.

If any type of 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 then the judge will make a decision.

If the judge decides the evidence is inadmissible due to an illegal search, this does not mean your case is automatically dismissed. The State can choose to move forward with or without the evidence, but the case becomes often becomes much weaker without the evidence.

In a DUI case, the evidence found as part of an illegal search is often drugs or empty bottles of alcohol. If you took the State’s test and it showed signs of intoxication, the State would most likely move forward with the case, even without the evidence. Conversely, if you did not take the State’s test, the lack of drug or alcohol evidence in your car could lead to a dismissal. This was seen in the case of McGaughey v. State, where evidence of drugs in the vehicle could not be admitted and his case was later dismissed.

Illegal Seizures

The Constitution also protects you from illegal seizures of evidence. This means if an officer takes evidence from you illegally, it cannot be entered at trial. In the context of a DUI case, this typically occurs when an officer has medical staff perform a blood draw to test for alcohol or drugs without the defendant’s consent and without a warrant.

If the officer wants to preserve evidence and has medical staff take a blood sample while a defendant is unconscious (due to over-intoxication, car accident injuries, etc.) and cannot give consent, it is an illegal seizure of evidence. This example occurred in Stewart v. State, and 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.

The Bottom Line

Refusing the State’s test or refusing to take the Standardized Field Sobriety Testing isn’t enough to receive a dismissal, but there are many 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 is vital that you hire a defense attorney with extensive DUI experience. Contact us for a free consultation about your case.