Basics of a DUI
DUI Offense
You will be criminally charged with Driving Under Influence (“DUI”) [some states refer to this as Driving While Intoxicated “DWI”] if you are caught driving or operating a vehicle when your Blood Alcohol Concentration (“BAC”) is 0.08% or greater. For ease of reference and the purposes of the educational information contained herein, we will simply refer to these two terms as DUI.
In early 2013, the US Department of Transportation is requesting that the US Congress pass legislation to effectively LOWER this threshold to 0.04%. That means that if you are a 35 year old male and weigh approximately 200 lbs, you would be considered legally intoxicated after consuming approximately two 12oz beers in approximately one hour. The present blood alcohol concentration limit is uniform throughout the United States. Please also note that you need not be ACTUALLY driving a motor vehicle in order to be charged with DUI. There have been thousands (if not tens of thousands) of “operators” charged with DUI while the vehicle has been parked, NOT running, and the driver happens to be asleep sitting behind the wheel. If the keys are INSIDE the vehicle compartment, deemed to be within the operator’s reach and control, S/He can be considered as if S/He were in fact driving down the road since the legal requirement points to the driver’s INTENT to possibly (at some point in the future) operate the vehicle. Those circumstances pass the “reasonable suspicion” test that the driver has the POTENTIAL to commit an illegal act, and such action is sufficient to be criminally charged with a DUI offense.
The police officer will observe signs of intoxicated driving before stopping a motorist on the suspicion of DUI. These signs include – but are NOT specifically limited to – speeding, continuous lane changes (“weaving in and out of traffic”), abrupt stopping or anything that would make the motorist stand out from rest of the traffic.
Once the police officer observes this behavior, that passes the “reasonable suspicion” test, the police officer is then authorized by law to conduct a motoro vehicle stop. S/He will ask him/ her for driver’s license, insurance identification card and valid vehicle registration. During the time of this encounter, the police officer will visibly look for signs apparent signs/ indicators of intoxication on the part of the vehicle driver. These indicators include, by way of example and not of limitation, red/ bloodshot/ watery eyes, slurred speech, uneven body movements, hesitation on forming sentences, etc. etc. If the driver exhibits such signs, the police officer will request that the driver to step out of the vehicle and take what is commonly called a Field Sobriety Test.
Field Sobriety Tests
Field Sobriety Tests (“FST”) are a series of physical tests which the police administer to DUI suspects to determine if the suspect show visible signs of intoxication. These FST include, but by no means are specifically limited to the following actions: Recite the alphabet backwards; begin counting from the number 7 and then count every third number (or some other random extraneous number); stand motionless on one leg and then tilt your head back with your eyes closed and attempt to touch your nose with your index finger and so on and so forth. If anyone has ever seen police/ crime television programs or has seen the popular reality series COPS or LAPD etc. you have seen a representation of these FST’s given to suspected motor vehicle drivers. These tests are difficult – if not next to impossible to do – when you have had nothing to drink but a glass of water, let alone consume alcoholic beverages.
If the suspect fails the FST, the police will then have met the legal requirements of probable cause to then subject the suspect to a more thoroughly scientific Breath Analyzer Test that measures the specific Blood Alcohol Content (“BAC”) in one’s blood system.
Refusing a Field Sobriety Test
When you are pulled over for the suspicion of DUI, the police officer will ask (more like demand) that you to undergo the FST. S/He will talk to you in a manner so as to give you the impression that you are bound by law to and have NO choice but to subject yourself to perform the Field Sobriety Test. In NO UNCERTAIN TERMS must you subject yourself to ANY such test. In fact, under the specific provisions of the Constitution of the United States, NO ONE IS REQUIRED TO PROVIDE ANY THING OF EVIDENCE TO THE POLICE THAT WOULD BE CONSIDERED SELF INCRIMINATING.
As such, you have the ABSOLUTE right to refuse the FST. A refusal of the FST will not result in any administrative or criminal penalties. You can politely inform the officer that you do not intend to take the field sobriety test. However, it will give the officer probable cause to then subject you to a more thorough Breath Analyzer Test. Again you have the right to refuse taking a breath analyzer test.
Breath Analyzer Test
In a Breath Analyzer Test, you will be asked to exhale from your lungs (“blow into”) a tube/ wand/ hose that is connected to a scientific measuring machine that specifically identifies the amount of alcohol (a chemical substance) contained within a person’s blood supply. While this device is highly complex, it will provide a much more detailed record of your blood alcohol concentration that will be used as evidence against you. Keep in mind that the FST is significantly more subjective as the results of that test is witnessed by the police who then determines in his/ her mind whether or not you are visibly intoxicated. Since a machine does NOT visibly witness a person’s actions (at least not in 2013), this device is calibrated under a strict set of rules and procedures as to provide fctual findings which are then subject to interpretation by humans.
If you refuse the breath analyzer test, the police will THEN have sufficient cause to demand a chemical test; where blood is drawn from your body and the blood is then measured for BAC much like the way the Breath Analyzer device determines BAC. Make no mistake, you cannot refuse the chemical test. In a court of law, refusal to take this blood chemical test WILL result in the suspension of your driver’s license.
All states in the USA, have an implied consent law. Under this law, every person who applies and receives a driver’s license implicitly agrees to submit to a chemical test when stopped by the police on suspicion of DUI. Your driver’s license will be suspended if you refuse the chemical test. This is an administrative action by the Department of Motor Vehicles and is separate and independent from the DUI case against you. You can request a hearing against the suspension of your driver’s license. The suspension will be held valid if there were reasonable grounds for a DUI arrest and you refused the chemical test despite the officer informing you of the consequences of the refusal.
Refusal
There are two types of refusals – express and implied. An express refusal is one where you clearly inform the officer that you do not intend to take the chemical test. An implied refusal is one where your response or non-response to the officer’s request can be termed as a refusal – for example, when the officer requested that you take a chemical test, you inform him that you would like to talk to your attorney before taking a decision, then it can be considered as an implied refusal.
Penalties
All states have severe penalties for DUI. Even first time DUI offenders face severe penalties. First time DUI offenders can (and most likely WILL) be sentenced to driver’s license suspension for six months or more, criminal probation and significant fines. More than likely, you will be ordered to undergo alcohol counseling (at your expense) and sit in some class room for an indeterminate period of time where “counselors” inform you how bad alcohol is and how auto accidents result in loss of life and limbs. In some cases you can even be sent to jail. Many factors will influence the penalty (imposed by a judge of a municipal court in which you were charged for the criminal offense of DUI).
These factors include, but are not limited to: the speed at which you were traveling, your BAC, the location where you were stopped (was it a roadway or where you driving your car on a golf course or school playground), resulting property damages and any potential injuries to others that may have been encountered. A first time DUI offense will result in a criminal record which can severely impact you when you complete employment applications, attempt to rent an apartment, file for sensitive government or classified type of work, make application to college or graduate schools, etc. The list is practically endless. The penalties are enhanced for each subsequent offense.
Substantially Increased Insurance Costs
Almost all states require a person convicted of a DUI to get a SR 22 form from his or her auto insurance company certifying that he or she has auto insurance. In effect, this means your auto insurance company will then be made aware that you have a DUI conviction.
Even if your state does not have a SR 22 form requirement, your DUI conviction will appear when the insurance company does a background check on you. A first time DUI can cause serious and significant problems for you when you attempt to obtain auto insurance. In fact some insurance companies will cancel your policy immediately upon a DUI offense, regardless as to whether or not you are convicted.
If your insurance company does not cancel your policy, the company will absolutely increase your insurance premium based on you being charged with a DUI. The increase can be drastic. The rates will vary from state to state and also from one insurance company to another. If it is your 1st DUI and you have an otherwise good driving record, the increase may only be about thirty percent. But if your driving record is not good, the expected increase can be double or even triple what you were otherwise paying for auto insurance. Even if you change your insurance company, the new company will more than likely charge you more. Since insurance business is a “risk-based” industry, a DUI charge increases the risk you pose for the company. An increase risk to them translates to potential higher insurance claims which results in significantly higher insurance premiums to be charged to the insured.
The point being, you will be categorized as high risk. You will have to pay higher premiums for as long as the DUI remains on your driving record which can vary from 3 years to life depending on your state laws.
License Suspension
In some states, a DUI arrest will result in an automatic suspension of your driver’s license. This is independent of the criminal case against you for DUI. Depending on your state law, you may be allowed to request a hearing before the suspension. If you convince the Department of Motor Vehicles officer that your license should not be suspended, you may retain your driving privileges. However, if your license is suspended, in some states you can apply for and get a temporary driving permit to enable you to drive to work.
Fighting a DUI Charge
You can fight the DUI charge against you. Depending on the circumstances of your case, you may have one or more defenses. Remember AT ALL TIMES, the police MUST be able to prove BEYOND A REASONABLE DOUBT that you are guilty of the charges presented in the State’s case.
If they fail to meet this requirement and fail to prove their case, the criminal charges against you will be dismissed. An experienced DUI attorney can review your case and advice you of your options. It is important that you fight the charges against you. If you simply plead guilty, (and put yourself at the mercy of the Court) you YOU WILL BE CONVICTED. Similarly a no contest plea will also result in a conviction.
The National Highway Transportation Safety Administration has rolled out a sparkling new ad campaign which you will surely be bombarded with over
So what can the average driver expect to face as a result of this crackdown?
- Long delays and waits at DUI checkpoints where you are treated like a criminal and your rights are violated even if you are law abiding and had nothing to drink or were socially responsible in drinking.
- A high number of false arrests due to overzealous, under-trained police officers looking to show their “efficient” work through the numbers game of “high arrest totals.”
- Police using DUI checkpoints to seize property and issue non-DUI tickets and arrests to increase revenue.
In fact, police departments love these types of crackdowns because they are funded by the government. Officers get extra overtime pay and the departments get to fill their coffers with the proceeds from DUI checkpoints. Everyone wins, except YOU the "Average American Motorist".
Keep this in mind- DUI is all about generating vast sums of money to keep the DUI industry running.
If the government was really sincere about keeping drunk drivers off the roads, it would enact federal legislation to require ALL automobiles sold in the USA be equipped with an ignition lock device that would require drivers blow into it to determine blood alcohol content before the engine would start.
The government would likewise spend more on proven treatment programs to rehabilitate alcoholics and on programs that educate the public about drunk driving about making better overall choices in our lives and not as a fear tactic.
Remember, if you are stopped for a DUI, you have very important rights that are guaranteed under the US Constitution.
PROTECT AND KEEP THOSE RIGHTS.
BE PROACTIVE, NOT REACTIVE.
