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Defending DUI's means defending constitutional rights

Posted by Michael Burkhart | May 23, 2013 | 0 Comments

An American's constitutional rights are never more vulnerable than when they drive.  The roadway is the most common place a  person will be accused of breaking a law during their lifetime.  When that person is accused of committing a criminal act while driving their constitutional rights are at risk of being violated by an undertrained or unethical police officer.  Such a violation can result in the charges being dismissed or evidence suppressed.  While some people speak of "technicalities" that get people out of trouble, I speak of the Constitution.

The first question I ask is why was the person stopped?  To justify a stop the State must prove that there was reasonable suspicion that the driver committed a traffic violation or was otherwise committing a crime.  I have had many cases dismissed because the State could not prove that the officer had a reason to contact the driver.

Miranda violations also frequently occur during a DUI investigation.  A defendant should never answer the officers questions.  The officer has to inform the defendant that they have the right to remain silent once they are placed under arrest but answers given to the officer before the arrest are are often very harmful to the defense.  My advice is that when an officer asks a question that could be incriminating at all (like "have you been drinking?) a person should reply, "I am not comfortable answering your questions without an attorney."  My business card has a written notice to the officer that the driver has invoked his or her right to remain silent which should be handed to the officer along with the driver's license, insurance, and registration.

The next constitutional issue that can arise during a DUI investigation is probable cause to arrest. Did the officer have the facts to prove that the defendant was driving under the influence when he decided to arrest.  There are many factors to be considered including the reason for the stop, signs of alcohol or drug ingestion, performance on field sobriety tests and admissions made by the defendant to name a few.  Sometimes the police don't have enough proof that the defendant was even driving the car when they make the arrest.  If you are wondering if you are under arrest during an investigation simply ask if you are free to leave because you are ready to go.  That question usually forces the officer to make a determination as to whether or not there is probable cause to arrest.

A big issue in DUI cases is the right to an attorney.  A person under arrest has the absolute right to an attorney and the officer needs to take reasonable steps to give a defendant that opportunity.  Officers are often under-trained with respect to this issue and can, therefore, make mistakes that result in the violation of a defendant's constitutional rights.  The remedy for a right to counsel violation can be a dismissal of the case or the suppression of evidence depending on the circumstances.  Either way the defendant is in a much better position.

There are many other "technicalities" that could result in a good outcome for a defendant.  My favorites come from the Constitution.   When it comes to constitutional rights a vehicle really is where the rubber meets the road.

About the Author

Michael Burkhart

When selecting an attorney, it is important to know where that attorney was educated. Michael Burkhart graduated from Vanderbilt Law School in 1997. Vanderbilt was, and remains, one of the top law schools in the Country. Michael studied Criminal Defense from the minute he arrived at Vanderbilt. Most students at the top law schools want to get into a business firm, but Michael was one of the few students who wanted to protect the Constitution and the Rights guaranteed to the people. He interned at the Juvenile Court and the Davidson County Attorney's Office before getting a paid position at the Federal Public Defender's Office before he even graduated from law school. Michael Burkhart is an Arizona native. He grew up in Tempe on the border with Mesa and graduated from Dobson High School in 1990. While at Dobson High, Michael Burkhart was a semi-finalist for the National Merit Scholar award. His academic excellence continued at the University of Arizona where he earned a scholarship from the School of Business and Public Administration for his achievement as a Criminal Justice major. Michael was the outstanding senior in among Criminal Justice majors in 1994 and was a finalist for the Outstanding Senior in the College of Business and Public Administration. Michael scored in the top 1% of those who took the LSAT his senior year of college. The LSAT is a test that is taken by every person applying to law school that year. Michael Burkhart earned his way into a top tier law school and did not settle on a lesser school despite having to move away from home for three years. He put his education first so that he could make a career of defending the accused.


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The Law Office of Michael A. Burkhart

Michael A. Burkhart has over ten years of experience defending the accused throughout Phoenix, including cases in Mesa, Maricopa County, Tempe, Gilbert, Chandler, and Queen Creek.


Arizona has the toughest DUI laws in the country. The State will try to put you in jail for up to six months, take away your license, make you pay thousands of dollars in fines, go through alcohol classes, and put an alcohol sensor on your car.