Category: Kona DUI

Generally, the primary defense in a DUI involves creating a reasonable doubt as to the defendant’s intoxication. Generally, drivers are intoxicated if they have lost the normal use of their mental or physical faculties, or they have a BAC above the legal limit, which is usually .08. This approach could mean challenging the field sobriety test results, attacking the validity of a chemical sample, or both.

Frequently, however, other defenses are available as well. DUI prosecutions have a lot of moving parts. That’s especially true in DUI collision cases and a few other situations. If a Kona DUI lawyer can create reasonable doubt on one element of the offense, it’s easier to successfully resolve the case. That resolution could be a dismissal of charges, a plea to a lesser included offense, or a not guilty verdict at trial.

What is Reasonable Doubt?

Hawaii law defines reasonable doubt as a doubt based on reason and common sense. An appeals court in another state said this definition was essentially useless since it was like saying “A white horse is a horse that is white.”

Another way of looking at this definition is to approach it from the perspective of the presumption of innocence. Assume that NPR’s version of a political story is presumably true. To overcome this presumption, the Fox News version must be so convincing that you disregard the NPR story. Additionally, the NPR story must be free of obvious errors, so it stands on its own.

In other words, the state’s proof must be so overwhelming that the prosecutor’s version of events is the only reasonable narrative. Moreover, the state’s case must be almost completely airtight.

Kona DUI Lawyers and Some Non-Intoxication Defenses

Alcohol or drug intoxication is only one element of a DUI case. Sometimes, it’s the only issue. But that’s normally not the case.

1. Driving the Car

As mentioned, this element is often an issue in collision cases. Normally, the state must produce a witness who saw the defendant behind the wheel at or near the time of the collision. If the defendant told officers or witnesses s/he was driving, a Kona DUI lawyer might be able to exclude that statement.

The “reasonable doubt” angle comes into play here. If Sarah was the vehicle’s only occupant, it’s reasonable to assume she was driving, even if there was no direct evidence on this point. If both Sarah and Michael were in the vehicle, the Sarah-was-driving assumption is a little shaky.

On another note, “driving” in this context has a different meaning. Let’s return to the previous example and change the facts. Now assume Sarah was dozing behind the wheel when officers arrived. Even though she was not driving the car in the ordinary sense of the word, she was legally operating it. Therefore, DUI charges could be held up in court.

That’s assuming the keys were in the ignition and the car was fully drivable. If the keys were in Sarah’s purse and/or the car had mechanical problems, the state’s case is weaker. If Sarah didn’t have the keys and/or the car was not drivable at all, a Kona DUI lawyer could probably get the charges dismissed.

2. Public Place

Hawaii has many mini-malls, apartment complexes, large shopping malls, and private roads or waterways. These locations are never public places, even if they have street names and traffic control devices.

Sarah’s example could come up as well. If Sarah was in her driveway, she was not in a public place. If Sarah’s car was parked on the street next to her driveway, that’s a gray area.

3. Wrong County

This issue does not come up in very many DUI cases, but it could affect a BUI (boating under the influence) prosecution. The DUI law applies to boats, motorcycles, scooters, helicopters, and any other motor vehicles. It usually also applies to horses, bicycles, and other non-motorized vehicles.

Local prosecutors only have jurisdiction in their own counties. When boats are between the islands, at some point, they cross the line between different counties. The state has the burden of proof to show that the offense occurred in Hawaii County or wherever.

If the charges are filed in the wrong county, a Kona DUI lawyer can quash the case. That means the state’s lawyers can refile it in the correct county. However, instead of going through all that, many prosecutors agree to favorable plea deals.

Highly Intoxicated Kona DUI Attorneys Defense

The Hawaii legislature has passed a law creating a more serious DUI charge called highly intoxicated DUI. This offense comes with higher penalties: a minimum of two-days jail and six- to 18 months license revocation for first-time convictions (within the previous 10 years). Repeat convictions result in a minimum of ten-days jail time and license revocations from 12- to 36 months.

To prove highly intoxicated DUI, the state must convince the court or jury that the defendant’s blood alcohol content (BAC) exceeded one of these levels:

• .15 grams of alcohol per 100 milliliters of blood
• .15 grams of alcohol per 210 liters of breath

Because the state must prove a specific BAC, your lawyer may be able to contest the highly intoxicated classification. Testing devices have margins of error and fallibility. If your BAC tested close to the highly intoxicated limit, your case may have been inaccurately classified because of faulty testing.

Call Today To Speak With One Of Our Kona DUI Attorneys

DUI cases are common, and so are some of the most effective defenses used to fight the charges. Creating reasonable doubt and presenting non-intoxication defenses are a few of these. The bottom line is, regardless of the facts, almost all criminal cases are defensible in some way. Many times, prosecutors agree to favorable plea deals. Call Olson & Sons, L.C. at 808-331-3113 for a consultation with an experienced Kona DUI lawyer. We routinely handle matters in Hawaii County and nearby jurisdiction.

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Even if you are arrested for DUI, you are still presumed innocent until proven guilty. There are a number of ways to make this presumption hold up in court. For example, the prosecutor often lacks evidence on the driving element of DUI. That’s especially common in collision cases. By the time officers arrive on the scene, the defendant has exited the vehicle. So, it might be hard to prove, beyond a reasonable doubt that the defendant was driving.

But in most cases, intoxication, or the lack thereof, is the only real issue. The test compliance rate varies by jurisdiction. But generally, about 80 percent of drivers provide a breath or blood sample.

Contrary to the popular myth, people who provide chemical samples are not automatically guilty of DUI. Very few scientific tests are 100 percent reliable. Both the breath and blood tests have some flaws, and a good Kona DUI lawyer might be able to successfully challenge test results.

Types of Chemical Tests Used in a DUI Arrest

1. Beating the Breathalyzer

These tests are inadmissible unless a Hawaii County prosecutor verifies the Breathalyzer’s accuracy. To do this, the state usually calls Breathalyzer technicians to the stand. These police officers try to dazzle the jury with tales of fuel cells and electrochemical conversions. Their description makes the Breathalyzer sound like a cutting edge, sophisticated device.

But in reality, the Breathalyzer is basically a 1930s Drunk-o-Meter. Both the Breathalyzer and the DOM count the number of ethanol particles in the defendant’s breath and calculate the defendant’s BAC level based on that count. True, today’s Breathalyzer is more accurate and has many more bells and whistles. But it uses the same basic technology.

Once jurors understand that the Breathalyzer uses technical principles which were discovered before their grandparents were born, they are more likely to look closely at some specific flaws, like:

1. Ketone Levels: Diabetics, smokers, and some other people have high levels of ketones in their bodies. Breathalyzers register these particles as ethanol. So, in these cases, the BAC estimate may be artificially high.

2. Unabsorbed Alcohol: If the defendant has been drinking in the last couple of hours, the BAC estimate may be artificially high as well. Most alcohol does not go from the stomach to the blood. It goes from the stomach to the liver to the blood. So, alcohol may be on the defendant’s breath, but not in the defendant’s bloodstream.

3. Mouth Alcohol: Hawaii’s DUI law requires officers to monitor defendants for at least fifteen minutes before they take a Breathalyzer test. But courts have watered down this requirement so that the monitoring period is now more like a waiting period. As a result, the officer may not know if the defendant burped or belched. These things inflate the number of ethanol particles in the defendant’s mouth.

Kona DUI lawyers can most effectively use these flaws in borderline test cases, like a .08 or .09 BAC level. So, to better explain these flaws to the jury, many Kona DUI lawyers partner with degreed chemists. These scientists have more credibility with the jury than the state’s Breathalyzer technician. These individuals usually learned everything they know about the Breathalyzer at a police-sponsored seminar.

Currently, Breathalyzer testing is only available for alcohol-related DUIs. But in August 2019, researchers at the University of Pittsburgh unveiled a breathalyzer which measures marijuana particles. So, a Breathalyzer drug test may be coming soon.

2. Kona DUI Lawyers and Blood Test Results

Admittedly, blood tests are more difficult to challenge in court, especially on scientific grounds. However, many Kona DUI lawyers order retests in these cases. Quite frequently, this independent retest yields different results from the ones that a police technician claims to have found.

Scientific tests are also important in other drug cases, such as drug possession matters. For example, Georgia police officers recently arrested a man for possession of cocaine. That “cocaine” turned out to be bird poop.

Procedural defenses are often successful as well. The Supreme Court recently ruled that officers must obtain search warrants before they forcibly extract blood samples. Typically, judges approve these warrants over the phone. But a judge’s seal of approval is not a magic wand. Officers must still have probable cause. In many situations, unless the defendant clearly failed one or more field sobriety tests, probable cause is difficult to establish.

Blood tests also may have a chain of custody issues. These little vials do a lot of traveling. They must go from a hospital or clinic to a police lab to an evidence room to a courtroom. A gap in the chain of custody casts a cloud over the evidence’s reliability. Sometimes, that cloud is enough for a Kona DUI lawyer to create reasonable doubt.

Additionally, the samples must be stored under certain conditions. Once again, a lack of proof in this area could affect the sample’s reliability.

Chemical Tests for “Highly Intoxicated” DUI

As with extreme DUI statutes in other states, Hawaii’s Highly Intoxicated DUI law provides for stiffer penalties when a defendant’s BAC vastly exceeded the legal limit. Under Hawaii’s law, a driver commits Highly Intoxicated DUI if one of these conditions is met:

• Above .15 grams of alcohol per 100 milliliters of blood
• Above .15 grams of alcohol per 210 liters of breath

Penalties for first-time offenders include a minimum of 48 hours in jail and license revocation from between six and 18 months. Repeat offenders face at least 10 days in jail and license revocation from between 12 and 18 months. A repeat offender is a convict who has a previous DUI within the past 10 years.

Challenge Chemical Test Results with the Help of a Kona DUI Lawyer

Chemical evidence of intoxication does not always hold up in court and can result in wrongful convictions and excessive criminal penalties. Don’t let this happen to you. For a confidential consultation with an experienced Kona DUI lawyer, contact Olson & Sons, L.C. Call us at 808-745-1565 to speak with us about your case. Home and jail visits are available.

Drivers have a limited right to refuse a chemical intoxication test. A refusal to submit to a Breathalyzer is admissible in court. That fact, along with the threat of lengthy license suspension, often convinces the driver to provide breath samples. A Kona DUI lawyer can reduce or eliminate both these effects, but that’s the subject of another blog.

On the other hand, drivers have an absolute right to refuse Field Sobriety Tests (FSTs). The Fifth Amendment gives defendants the right to remain silent. That includes the right to perform most activities, like field sobriety tests.

This right is critical in DUI cases. Officers must have probable cause to administer Breathalyzer tests, and typically, the FSTs furnish that probable cause. Furthermore, in chemical test refusal cases, the FSTs usually provide most or all of the evidence of intoxication.

So, in both test and refusal matters, attacking the FST results is a critical part of a Kona DUI lawyer’s approach to these cases.

Finger-to-Nose Test in DUI Cases

On the witness stand, officers say this test measures balance. Drivers must stand with their arms extended and alternatively touch their index fingertips to their noses. During the test, officers deduct points if the driver sways or does not touch a finger to nose.

The real purpose of this test is to fatigue the defendant. Test results are usually either highly questionable or entirely inadmissible because this test is not in the three-test National Highway Traffic Safety Administration battery.

Romberg Balance Test

German neurologist Moritz Romberg, who obviously had lots of free time, invented this balancing test in the 19th century. Test subjects must stand with their heads back and eyes closed. According to Romberg and other test advocates, this position deprives the test subject of all three ways to maintain balance, which are:

1. Vestibular function (knowing the position of one’s head),
2. Vision, and
3. Proprioception (knowing one’s body position in space).

Because of that three-pronged deprival, intoxicated individuals should almost literally fall over drunk during the Romberg test.

This test has no scientific basis, and for that reason, judges often exclude it at trial. However, for strategic reasons, a Kona DUI lawyer often allows officers to testify about the Romberg test. If they cannot explain abstruse principles like proprioception and vestibular function, which is usually the case, some jurors may think the officer was not qualified to administer the FSTs or interpret their results.

Horizontal Gaze Nystagmus to Nail DUI

The DUI eye test is the first FST in the three-test NHTSA battery. It is also the most controversial of the three.

Nystagmus is a vision disorder which is also called the lazy eye. Nystagmus causes involuntary pupil movements at certain viewing angles. Alcohol causes nystagmus, but it is not the only cause. In fact, it is not even the leading cause of nystagmus. A childhood brain injury or a genetic defect causes many more nystagmus cases than alcohol.

Additionally, there are also issues with test conditions. The HGN test is usually accurate if administered under controlled conditions, but roadside HGN tests do not occur under controlled conditions. The sky is dark, overhead squad car lights flash in the distance, and cars whiz past with their headlights on.

Heel-to-Toe Walk

The HTW, which is also known as the Walk and Turn or the walking-a-straight-line test, is probably the most reliable of all FSTs. It is a divided attention test which measures physical dexterity and mental acuity. Defendants must walk a straight line forward and backward, walking the only heel to toe. During the test, officers look for intoxication includes, which include:

• Beginning the test before the officer says “start,”
• Leading with the wrong foot,
• Failure to walk heel to toe on any step,
• Using arms for balance,
• Moving off the line,
• Unsteady balance, and
• Ending the test before the officer says “stop.”

It is almost impossible to successfully complete the HTW while wearing flip-flops, cowboy boots, or anything other than athletic shoes. It’s even more difficult to pass this test if the officer requires the defendant to walk an imaginary line instead of an actual line.

Additionally, in court, Hawaii County prosecutors must establish that the defendant failed the test because s/he was intoxicated, and not because s/he was tired, nervous, disabled, or clumsy.

One Leg Stand to Establish DUI

In many ways, the OLS is a lot like the HTW. They are both divided attention tests. And, they are both controversial.
Many officers focus on minor technicalities when they evaluate the OLS. For example, they may testify that the defendant “failed” the test if he elevated the wrong leg, even if he performed everything else perfectly.

Jurors look at video footage of these tests and decide for themselves if the defendant passed or failed them. And, the jury’s opinion is the only one that counts.

Tests for Highly Intoxicated DUI

Highly intoxicated DUI requires prosecutors to prove that the defendant’s blood alcohol exceeds the legal limit by a specified large margin of .15 grams per 100 milliliters of blood or .15 grams per 210 liters of breath.

Establishing these levels requires a chemical test. Often, defense attorneys can establish that the tests were improperly administered or are inherently unreliable, resulting in reduced charges or dismissal.

If convicted of highly intoxicated DUI, defendants face at least 48-hours in jail and a six- to 18-month license revocation. Repeat offenders must spend 10 days in jail and lose their licenses for 12 to 18 months.

Contact an Assertive Kone DUI Attorney

DUI FSTs are by no means conclusive evidence of guilt. For a confidential consultation with an experienced Kona DUI lawyer, contact Olson & Sons, L.C. We routinely handle matters in Hawaii County and nearby jurisdictions.

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Nationwide, the average cost of a DUI is about $15,000, when adding up both direct and indirect consequences. These costs are probably higher in Hawaii. Everything except pineapples and flowers is very expensive here. And, the Rainbow State has some of the harshest DUI laws in the country.

A new law now requires tougher sentences for those arrested for a highly intoxicated DUI. The state defines highly intoxicated DUI as having a blood alcohol content of more than .15 grams per milliliter of blood or .15 or more grams of alcohol per 210 liters of breath.

Hawaii’s highly intoxicated law also carries a minimum of 48-hours in jail and license revocation between six- and 18 months. Repeat offenders face a minimum of 10 days in jail and 12- to 36 months license revocation unless the last offense occurred more than 10 years in the past.

An effective Kona DUI lawyer can reduce or eliminate these consequences. Chemical tests, including the Breathalyzer, are not 100 percent accurate. In fact, in many cases, they aren’t even close to that accurate. Additionally, field sobriety tests, like the DUI eye test, are extremely subjective.

There may be some non-intoxication defenses as well. For example, many police officers arrest people for DUI while they are on private property, like a shopping mall or apartment complex parking lot. Additionally, unless the driver was fully alert and in full control of the vehicle, Hawaii County prosecutors may be unable to establish the “operating” element of an OVUII (operating a vehicle under the influence of an intoxicant).

These defenses could result in a complete dismissal of charges, favorable pretrial settlement, or a not-guilty verdict at trial.

Arrest May be Unavoidable

Prior to the mid-1990s, most officers treated DUIs like speeding tickets. If the driver was not passed-out drunk and promised to go straight home, many officers just issued warnings. Today, once an officer suspects intoxication, an arrest is practically inevitable. That’s especially true if the stop happens during a STEP campaign or another heightened enforcement period. So, do not think that if you pass a Breathalyzer test that officers will let you go. That’s not going to happen.

Drunk Driving Charges Invite Court Appearances

Most Hawaii County judges require defendants to appear at all court dates, even if they are only procedural. Asking for time off from work every month is embarrassing, to say the least. Moreover, many bosses are not very patient in this area. After two or three months, they may pressure you to “get it over with.” Such an ultimatum could put a Kona DUI lawyer in a very bad position.

You May Serve Jail Time

Hawaii has a mandatory confinement law. People who are convicted of a first-time DUI must spend between 48 hours and 120 hours (five days) in jail. If the judge assesses the minimum, most people have enough time served to satisfy the requirement. But if the judge imposes the maximum, the defendant must usually do some additional time. Minimum confinement periods increase substantially for repeat offenders.

Drunk Driving Leads to Fine Payment

The maximum first-time DUI fine is $1,000. Defendants must also pay court costs, which are usually several hundred dollars. And, if an enhancement applies, like a DUI-child passenger, the fine and costs could be even higher. Some courts allow defendants to pay this money in installments, but many do not.

Probation Penalty for Drunk Driving

The financial penalties keep coming. Probationers must normally pay community supervision costs once a month. And, they must also personally report to probation officers once a month. Failure to fulfill these conditions could mean probation revocation. The same thing could happen if the defendant violates any other condition, such as getting in trouble with the law again or failing to work or go to school full time.

Attend and Complete Driving School

DUI driving school is not anything like driving school for teenagers or defensive driving for adults. Drunk driving school usually includes victim impact panels, long lectures about driving safety, and alcohol evaluation. This test could be questions about drinking habits. Or, it could be a full medical and psychological evaluation.

Alcohol Treatment May be Suggested

If the aforementioned alcohol evaluation indicates the defendant has a drinking problem, the defendant must normally complete all requirements to be eligible for drivers’ license reinstatement. Sometimes, these requirements are not terribly burdensome. Other times, requirements could include inpatient alcohol treatment, which the defendant must pay for.

Ignition Interlock Device to Curb Drunk Driving

As an additional condition of drivers’ license reinstatement, most offenders must drive with an IID. This device is basically a portable Breathalyzer which is attached to the ignition. If the defendant’s BAC level is higher than .04, the vehicle will not start. Most IIDs also have digital cameras to ensure that the person providing the breath sample is also the person who is driving the car.

Higher Auto Insurance for Drunk Driving Offenders

Remember that $15,000 figure quoted above? Increased insurance premiums usually make up most of that cost. Persons with DUIs must obtain high-risk insurance and keep it for at least three years. An SR-22 may increase monthly premiums by 40 percent or more.

Contact a Thorough Kona DUI Attorney

Drunk driving could have some serious consequences, and an experienced Kona DUI lawyer helps you avoid them. For a confidential case evaluation, contact Olson & Sons, L.C. at (808) 745-1565. Home and jail visits are available.

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