DUI Defenses Staff Profile Picture
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Driving under the Influence (DUI) is a serious crime in the United States. In 2020, the National Transportation Safety Highway Administration (NTSHA) reports that there were 11,654 fatalities related to alcohol-impared driving, accounting for 30 percent of all traffic-related deaths in the United States. 

The penalties for DUI convictions can vary, depending on the state and the circumstances of the offense,  including  fines, court-ordered substance treatment, driver’s license suspension/revocation, community service, and incarceration. . If you are facing a DUI charge, it is important to understand the different defenses that may be available to you. It is always important to consult with a qualified attorney in your specific state, as the law may differ on applicable defenses to a DUI charge.

To help you understand your options and considering potential defenses, we have compiled an overview of some of the defenses used in DUI cases.

Defenses Based on the Officer's Conduct

If you were pulled over and arrested for DUI, one potential defense is to argue that the arresting officer's conduct was improper or violated applicable law. There are several ways an officer's conduct can be challenged, including the following:

Burden of Proof for Defense

The burden of proof for the defense is to show that the officer's conduct was improper or violated applicable law.

Some of the ways an officer's conduct can be challenged include:

Illegal Stop

If the officer did not have a valid reason to  detain you for DUI, any evidence gathered as a result of the stop might be suppressed. For example, if you were stopped for  failure to wear a seat belt but did not appear intoxicated, the stop may be considered illegal. Any evidence gathered from the DUI stop may be inadmissible against you in yourI case, resulting in a greater likelihood of being found “not guilty” at trial.

Improper Field Sobriety Tests

The field sobriety test (FST) results might be inadmissible in court if the officer  did not properly conduct the tests in accordance with existing regulations. Although states will vary on the admissibility of specific field sobriety tests, some commonly known tests  include:

  • Walking in a straight line.

  • Standing on one foot.

  • Following a pen with your eyes.

Improper Breathalyzer Test

Breathalyzer tests commonly measure blood alcohol content (BrAC) levels. If the breathalyzer testing device is  not calibrated properly or incorrectly administered, the results may be challenged. Additionally, if the officer did not observe you for the required period of time before administering the test, the results may be challenged for accuracy.

Burden of Proof for Prosecution

Generally, the burden shifts to the prosecution to show that the officer's conduct was proper. They may do this by interviewing witnesses, viewing camera footage, and listening to recordings taken by the officer.

Defenses Based on Medical Conditions

Another potential defense for DUI charges is to argue that a medical condition caused the symptoms of impairment that the officer observed. Some common illnesses and medications that can lead to issues when driving include the following:


Diabetes can cause symptoms such as dizziness, confusion, and slurred speech. These symptoms may lead a police officer to think the driver is drunk when they may actually be having a medical emergency.

Inner Ear Problems

Inner ear problems can cause difficulty with balance, which may be mistaken for impairment.  Ear conditions may lead drivers to fail field sobriety tests, leading to a DUI charge.  If it is shown that inner ear problems caused you to fail the test, you may be able to have your charges amended or dismissed.

Spinal Injuries

If a person suffers spinal injuries that affect speech or balance, the police officer may mistakenly believe their observations are a result of alcohol impairment. If it is demonstrated that the medical condition was the cause of the appearance of intoxication, the State may consider dismissing the case

Defenses Based on Rising Blood Alcohol Content

If you were not intoxicated at the time you were driving but were over the legal limit when you were tested, you might be able to argue that your blood alcohol content was rising at the time of the test. The argument is that you were not intoxicated when driving, but your BAC was increasing as alcohol was being absorbed into your bloodstream. It is important to note that the “graduated breathalyzer defense” is not available in all jurisdictions.

The rate of alcohol absorption into the bloodstream can vary based on several factors, including the type of alcohol consumed, the amount of food in the stomach, and the rate of alcohol metabolism. If you were stopped by law enforcement shortly after having a drink, , your attorney may be able to argue that your blood alcohol level was not above the legal limit at the time you were driving.

Burden of Proof for Defense

The defense has the burden of proving that the defendant's blood alcohol level was below the legal limit when driving and that it rose to an illegal level after they were stopped by law enforcement.

Burden of Proof for Prosecution

The prosecution must prove that the defendant's blood alcohol level was above the legal limit while driving beyond a reasonable doubt in a trial setting.

Constitutional Violations

When charged with a DUI, you have constitutional rights and protections. If a police officer violates your constitutional rights when making an arrest, you may be able to get your charges reduced or dismissed entirely upon raising the defense via pre-trial motion or at trial, whichever is applicable in your jurisdiction.

Burden of Proof for Defense

The defendant must prove their constitutional rights were violated to use this defense successfully.

Some common violations include the following:

  • Not reciting the Miranda warning during the arrest

  • Not obtaining a warrant

  • Coercing the defendant into confessing

  • Illegally seizing evidence from the defendant’s vehicle

Constitutional violations can happen before, during, and after the arrest. Defendants should talk to their attorney to discuss the details surrounding their arrest and identify any potential violations.

Burden of Proof for Prosecution

If the defense alleges their rights were violated, the prosecution must prove that the officer(s) behaved appropriately and respected the defendant’s rights. This may involve using bodycam footage to prove that the officers informed the defendant of their rights, reviewing any signed waivers of rights by the defendant, and interviewing officers on the circumstances of the arrest.

What’s The Difference Between a Court-Appointed Public Defender and a DUI Attorney?

If you are facing a DUI charge, you may wonder whether to hire a private DUI attorney or rely on a court-appointed public defender. A public defender is a lawyer appointed by the court to represent defendants who cannot afford to hire an attorney . While public defenders are experienced lawyers, they often have a large caseload and may not have the same amount of time to devote to investigating a defense as  as a private DUI attorney. Further, if a defendant is not indigent, they will likely not qualify for a public defender to handle their entire case.

On the other hand, a DUI attorney is a private attorney who focuses their practice on DUI cases. They have experience and extensive knowledge  in defending individuals accused of DUI.  Private DUI attorneys are able to provide more personalized attention to your case. A private DUI attorney may also offer flexible payment arrangements, as well as have the ability to dedicate more resources to investigating your case.

While hiring a private attorney is generally a better option, it can be very costly, making it a less accessible choice for every defendant.

It is important to note that the decision of whether to hire a private DUI attorney or rely on a court-appointed public defender ultimately depends on your individual circumstances, such as your financial situation. However, if you have the means to hire a private DUI attorney, it may be worth considering in order to ensure that you receive individual attention.

Legal Resources for Defendants

If you are facing charges of driving under the influence, it is important to seek legal advice from a qualified attorney as soon as possible. DUI penalties can range from fines and license suspension/revocation to prison time, so it’s important to start building your defense quickly.

Below are several resources available to defendants seeking legal advice.

National Association of Criminal Defense Lawyers (NACDL)

The National Association of Criminal Defense Lawyers (NACDL) is a non-profit organization dedicated to protecting the constitutional rights of individuals accused of crimes. The NACDL provides a directory of criminal defense lawyers across the United States, as well as a list of resources for defendants, such as a “Know Your Rights” booklet and information on post-conviction relief. The NACDL also offers a variety of webinars, seminars, and events for criminal defense lawyers to enhance their skills and knowledge.

Visit: is a website that provides free legal information and resources to low-income individuals. The website offers a directory of legal aid organizations by state, as well as information on various legal topics, including criminal law. also provides a variety of self-help resources, such as forms and guides, to assist individuals in navigating the legal system.


The American Bar Association (ABA)

The American Bar Association (ABA) is a voluntary bar association that provides resources and support to lawyers and law students across the United States. The ABA offers a variety of resources for defendants, such as a “Find Legal Help” directory and information on various legal topics, including criminal law. The ABA also offers a lawyer referral service, which can connect individuals with qualified attorneys in their area.


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Jennifer Wirth is an Illinois-licensed DUI defense attorney who has focused her practice on driver's license reinstatement for more than two decades. Visit: