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Defenses to Drunk Driving in Mississippi

(1)    Necessity- This defense entails the defendant admitting that in normal circumstances his actions would constitute a crime, but in this instance, the actions were necessary to prevent physical injury to himself or another person.  To use this defense, the defendant must prove (1) that his actions were taken to prevent significant harm, (2) there were no adequate alternatives, and (3) the harm caused by his actions was not greater than the harm he was seeking to avoid.  This defense will work for many traffic violations, but will not likely work for a DUI.

(2)    Challenging Probable Cause- A police officer cannot stop a car without probable cause for doing so.  If a court finds that there was no probable cause, evidence gathered from the stop will be suppressed.

(3)    Probable Cause is Subjective- Officer’s basis for probable cause to arrest for DUI may be a field sobriety test, but what constitutes failing, such as swaying, is subjective.

(4)    Improperly Administered Field Sobriety Tests- If the officer did not give correct instructions or failed to ask about medical reasons why the driver would not be able to pass a field sobriety test, then the officer’s basis for probable cause can be challenged.

(5)    Not Given Implied Consent Warnings- If the officer did not inform the driver of the consequences of refusing to take a chemical test, the test results might not be admissible.

(6)    BAC Test Malfunctions- The devices used to test BAC are not foolproof—they may malfunction or be in disrepair.  Additionally, these devices may register other compounds found on the human breath to be alcohol.

(7)    Rising BAC- Alcohol takes between 30 minutes and 3 hours to be absorbed and thus affect a driver.  Therefore, if the BAC test was not done immediately, it is possible that the driver was not over the BAC limit at the time he was driving, but by the time the test was taken his BAC had increased.


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