An appropriate article for the drinker's thread:
LOL
.
The Easy to Use Site for Legal Information
Highway Conduct/Behaviors
Routine Detentions
Intoxication Clues
How to Reply?
Roadside Sobriety Tests
Right of Attorney
Chemical Testing
Defenses
Punishment
Insurance
WHAT IS "DRUNK DRIVING"?
Drunk driving, sometimes called driving while intoxicated (DWI) or driving under the influence (DUI), has two meanings:
Driving with a blood alcohol level over the state's maximum permissible blood alcohol limit. The limit varies from state to state, from 0.08% (in 16 states, including California) to 0.10%. The limit is even lower in many European countries, and in the United States, some states have imposed "zero tolerance" limits for young drivers. You may be considered "legally drunk" even though you do not "feel" or look as though you are under any "influence" from the alcohol. or
Driving when your physical abilities are impaired by drugs or a combination of drugs and alcohol. In the eyes of the law, it makes no difference that the drug is legal or illegal, prescription or over-the-counter. If taking that drug impacts your senses of seeing, hearing, talking, walking and/or judging distances, you may be guilty of a drunk driving offense.
WHY ARE DUI OR DWI LAWS SO VIGOROUSLY ENFORCED?
There are tremendous pressures to "do something". In 1997, accouding to the United States Department of Transportation there were 16,189 alcohol-related traffic deaths, representing 38.6% of all such traffic deaths. (Fifteen years earlier, in 1982, alcohol-related deaths represented 57.3% of that year's 43,945 total traffic fatalities.)
I WANT A LAWYER - Top - Home - More Legal Topics - Disclaimer
WHAT DO POLICE OFFICERS LOOK FOR WHEN SEARCHING FOR DRUNK DRIVERS ON THE HIGHWAYS?
The following is a list of symptoms in descending order of probability that the person observed is driving while intoxicated. The list is based upon research conducted by the National Highway Traffic Administration:
Turning with a wide radius;
Straddling center of lane marker;
"Appearing to be drunk";
Almost striking object or vehicle;
Weaving;
Driving on other than designated highway;
Swerving;
Speed more than 10 mph below limit;
Stopping without cause in traffic lane;
Following too closely;
Drifting;
Tires on center or lane marker;
Braking erratically;
Driving into opposing or crossing traffic;
Signaling inconsistent with driving actions;
Slow response to traffic signals;
Stopping inappropriately (other than in lane);
Turning abruptly or illegally;
Accelerating or decelerating rapidly;
Headlights off.
Speeding, incidentally, is not a symptom of DUI; in some circumstances it may suggest quicker reflexes and sobriety.
BUT I WAS STOPPED FOR A BAD TAILLIGHT; IS THAT ENOUGH?
The original cause for the officer's stopping you need not be related to driving under the influence.
Routine detentions for equipment and registration compliance, such as cracked windshield, inoperative taillight, headlights not turned on, and so forth, maneuvering and parking violations, and many other reasons have been held by the courts to constitute sufficient cause.
I WANT A LAWYER - Top - Home - More Legal Topics - Disclaimer
WHAT IS THE OFFICER LOOKING FOR DURING THE INITIAL DETENTION AT THE SCENE?
The traditional symptoms of intoxication taught at the police academies are:
Flushed face;
Red, watery, glassy and/or bloodshot eyes;
Odor of alcohol on breath;
Slurred speech;
Fumbling with wallet trying to get license;
Failure to comprehend the officer's questions;
Staggering when exiting vehicle;
Swaying/instability on feet;
Leaning on car for support;
Combative, argumentative, jovial or other "inappropriate" attitude;
Soiled, rumpled, disorderly clothing;
Stumbling while walking;
Disorientation as to time and place;
Inability to follow directions.
IF I'M STOPPED BY A POLICE OFFICER AND HE/SHE ASKS ME IF I'VE BEEN DRINKING, WHAT SHOULD I SAY?
You are not required to answer potentially incriminating questions. There are basically three acceptable alternatives, each with its own potential consequences.
One approach would be simply to ask, "Why are you stopping me, Officer?", even if it is at a sobriety checkpoint. When the officer asks, "Have you had anything to drink this evening?", simply say, "Officer, I do not wish to be delayed. Please do not delay me. I want to drive home". If the officer has no other basis to ask you out of the car, you will be on your way.
A polite, "I would like to speak with an attorney before I answer any questions", is also an appropriate reply. If you start with that answer, we suggest that you keep on giving that answer until you have consulted with an attorney.
A third reply – where appropriate (that means "true") -- might be saying that you had one or two beers. That would not be incriminating as they are not usually sufficient to cause intoxication -- and it may explain the odor of alcohol on the breath. However, it would be sufficient cause for the officer to have you take a field sobriety test.
Click for an article on what to do when pulled over.
I WANT A LAWYER - Top - Home - More Legal Topics - Disclaimer
IF A POLICE OFFICER PULLS ME OVER, WHAT KINDS OF ROADSIDE TESTS CAN THE OFFICER ASK ME TO PERFORM?
If the police officer observes some evidence of alcohol usage, he/she will ask you to perform a series of "field sobriety tests" (FSTs). Typically, these tests measure your physical dexterity or mental acuity. Most officers will use a set battery of three to five of the following tests:
recite the alphabet;
count backwards;
line-walking;
finger-to-nose;
heel-to-toe;
balancing one foot at a time;
fingers-to-thumb;
hand pat;
bending forward and backward with your eyes closed.
If you have chronic physical problems or physical limitations, have difficulty with your balance, walking, etc., it would be wise to inform the officer prior to taking the tests.
Also, in many localities the police routinely video-tape all stops. If so, the FST may also be video-taped.
CAN I REFUSE TO TAKE FIELD SOBRIETY TESTS?
Unlike the chemical test, where refusal to submit may have serious consequences, you probably are not legally required to take any FSTs.
The reality is that officers have usually made up their minds to arrest when they give the FSTs; the tests simply provide additional evidence and the suspect inevitably "fails" the FST.
Thus, in most cases a polite refusal "until I may speak with an attorney" may be appropriate. Obviously if you appear drunk in a videotaped FST it will not impress the judge or jury.
I WANT A LAWYER - Top - Home - More Legal Topics - Disclaimer
WHAT HAPPENS IF A POLICE OFFICER ASKS ME TO TAKE A ROADSIDE BREATH TEST? MUST I TAKE ONE?
A "roadside breath test," also called a preliminary alcohol screening test or "PAS," indicates the presence and/or concentration of alcohol based on a breath sample. You will be asked to blow into a breath meter. The purpose in giving this test is to determine if there is enough reasonable cause to arrest you for driving under the influence.
While you generally may refuse to take the test, your refusal may not stop the officer from arresting you if there is other evidence of alcohol usage (e.g., slurred speech, bloodshot eyes, clumsiness) that would affect your ability to drive. Your refusal might also have other negative consequences, as discussed below.
THE OFFICER TOOK MY LICENSE AND SERVED ME WITH A NOTICE OF SUSPENSION AFTER THE BREATH TEST. HOW CAN HE DO THAT IF I'M PRESUMED INNOCENT?
The law in most states provides for immediate suspension and confiscation of the license if the breath test result is above the legal limit (or, in the case of a blood or urine test, if the officer reasonably believes the result will be above the limit).
I WANT A LAWYER - Top - Home - More Legal Topics - Disclaimer
THE OFFICER USED A PENLIGHT. IS THIS A FIELD SOBRIETY TEST?
If the officer moved the penlight in front of your face and asked you to follow it with your eyes, this is the "horizontal gaze nystagmus" test, a relatively recent development in DUI investigation. The officer attempts to estimate the angle at which the eye begins to jerk ("nystagmus" is medical jargon for eye jerking); if this occurs sooner than 45 degrees, it theoretically indicates an excessive blood-alcohol concentration. The smoothness of the eye's tracking the penlight (or finger or pencil) is also a factor, as is the jerking when the eye is as far to the side as it can go.
This field sobriety test has proven to be subject to a number of different problems, not the least of which is that the non-medically trained officer's ability to recognize nystagmus and estimate the angle of onset. Because of this, and the fact that the medical community does not accept the test, it is not admissible as evidence in many states. It continues, however, to be widely used by law enforcement.
I WANT A LAWYER - Top - Home - More Legal Topics - Disclaimer
DO I HAVE A RIGHT TO AN ATTORNEY WHEN AN OFFICER STOPS ME AND ASKED TO TAKE A FIELD SOBRIETY TEST?
The law on this varies from state to state. As a general rule, however, there is no right to an attorney until you have submitted to (or refused) blood, breath or urine testing. In some states, there is a right to consult with counsel upon being arrested or before deciding whether to submit to chemical testing. Of course, this does not mean that you cannot ask for an attorney.
WHAT KIND OF EVIDENCE DOES AN OFFICER NEED TO ARREST A MOTORIST SUSPECTED OF "DRUNK DRIVING"?
Generally speaking, there are three kinds of evidence that a police officer will consider and gather in the investigation:
gross observations of behavior in general;
specific observations of balance tests and the like (usually called "field sobriety tests"); and
chemical test results of the motorist's blood, breath or urine.
A police officer may arrest a motorist if the cumulative effect of the evidence convinces the officer that he has "probable cause" or "reasonable cause" to make an arrest. This is a far lower standard than the one the state must prove at trial. There the case must be proven "beyond a reasonable doubt." Although this is a high standard, it is met every day in courts all over the country.
I WANT A LAWYER - Top - Home - More Legal Topics - Disclaimer
THE OFFICER NEVER GAVE ME A MIRANDA WARNING. CAN I GET MY CASE DISMISSED?
No. The officer is supposed to give a warning of your right to remain silent and tell you that anything you say may be used against you in a court of law (your 5th Amendment rights) and that you have a right to consult an attorney, and if you can not afford one you have a right to have a lawyer appointed for you (your 6th Amendment rights) after s/he arrests you. Sometimes officers do not. The only consequence is that the prosecution cannot use any of your answers to questions asked by the police after the arrest.
Of more consequence in most cases is the failure to advise you of the state's "implied consent" law, that is, your legal obligation to take a chemical test and the results if you refuse. This can impact the suspension of your license.
I WANT A LAWYER - Top - Home - More Legal Topics - Disclaimer
IF I AM ARRESTED AND TAKEN INTO CUSTODY TO THE POLICE STATION, WHAT CHEMICAL TESTS WILL BE GIVEN TO DETERMINE THE LEVEL OF ALCOHOL IN MY BLOOD? DO I HAVE A CHOICE? WHICH SHOULD I CHOOSE?
In most states, there are three ways of determining how much alcohol you have in your system: breath or blood (and in 8 states, including California, urine). Usually, you can choose which test you want to take.
If you choose breath, you will blow into a machine called a Breathalyzer that will determine the blood alcohol in your breath. Many jurisdictions permit you to have a second test and/or a blood or urine test. This is because a breath sample is not saved and so cannot later be re-analyzed by the defense.
Breath tests are the least accurate in determining the amount of alcohol you have in your system. This is because the breath machine assumes that the breath is from the lungs when it may be the alcohol residue still lingering from the mouth, esophagus, or the digestive system. If you belch, burp, hiccup, or vomit shortly before testing, or take a "breath freshener" (e.g., Binaca, Listerine), or cough syrups, you can bring vapor from alcoholic beverages still in the stomach up into the mouth and throat, registering an inaccurately high reading that would be used against you. Dental bridges and dental caps can also trap alcohol.
Analysis of a blood sample is potentially the most accurate, since it shows the presence of both alcohol and drugs. The least accurate and least reliable, by far, however, is urinalysis.
Thus, if you are confident that you are sober, a blood sample is the wise choice; urine, being least accurate and most easily impeached, is the best option if you believe your blood-alcohol concentration is above the legal limit.
WHAT HAPPENS IF I REFUSE BLOOD-ALCOHOL TESTING?
You cannot be forced to take the blood, breath, or urine test, but refusing can result in a variety of harsh consequences. Generally, there are three adverse results:
Your driver's license will be suspended for a period of time, commonly three, six or twelve months. This is true even if you are found not guilty of the DUI charge.
In some states, refusal is a separate crime; in others, it adds jail time to the sentence for the DUI offense.
The fact of refusal can be introduced into evidence as "consciousness of guilt". Of course, the defense is free to offer other reasons for the refusal.
Thus, the decision is one of weighing the likelihood of a high blood-alcohol reading against the consequences for refusing.
I WANT A LAWYER - Top - Home - More Legal Topics - Disclaimer
WHY AM I BEING CHARGED WITH TWO CRIMES?
The traditional offense is "driving under the influence of alcohol" (DUI) or, in some states, "driving while intoxicated" (DWI). In recent years, however, 43 states have also enacted a second, so-called "per se" offense: driving with an excessive blood-alcohol concentration (either .08% or .10%). In those states, BOTH offenses are charged. The defendant can even be convicted of both, but can be punished for only one.
If the case involves a refusal to submit to chemical testing, of course, only the traditional offense will be charged.
DO I NEED A LAWYER OR CAN I REPRESENT MYSELF?
You can represent yourself -- although it a terrible idea. It is sort of like a doctor doing an appendectomy on himself.
"Drunk driving" is a very complex field with increasingly harsh consequences. There is a minefield of complicated procedural, evidentiary, constitutional, sentencing and administrative license issues.
A qualified attorney, however, can review the case for defects, have the court suppress evidence, compel discovery of such things as calibration and maintenance records for the breath machine, have blood samples independently analyzed, negotiate for a lesser charge or reduced sentence, obtain expert witnesses for trial, contest the administrative license suspension, etc.
I WANT A LAWYER - Top - Home - More Legal Topics - Disclaimer
WHAT DEFENSES ARE THERE IN A DUI CASE?
There are a number of potential defenses that can be raised in a given drunk driving case. Roughly speaking, however, the majority can be broken down into the following areas:
"He wasn't driving". Intoxication is not enough: the prosecution must also prove that the defendant was driving. This may be difficult if, as in the case of accidents, there are no witnesses to you being the driver of the vehicle. Most drivers quickly admit they were driving, although they had the right to remain silent.
Probable cause. Evidence will be suppressed if the officer did not have legal cause to (a) stop, (b) detain, and (c) arrest. Sobriety roadblocks present particularly complex issues.
Miranda. Incriminating statements may be suppressed if warnings were not given at the appropriate time.
Implied consent warnings. If the officer did not advise you of the consequences of refusing to take a chemical test, or gave it incorrectly, this may affect admissibility of the test results -- as well as the license suspension imposed by the motor vehicle department.
"Under the influence". The officer's observations and opinions as to intoxication can be questioned -- the circumstances under which the field sobriety tests were given, for example, or the subjective (and predisposed) nature of what the officer considers as "failing". Witnesses can testify that you appeared to be sober.
Blood-alcohol concentration. There exists a wide range of potential problems with blood, breath, or urine testing. "Non-specific" analysis, for example: most breath machines will register many chemical compounds found on the human breath as alcohol. And breath machines assume a 2100-to-1 ratio in converting alcohol in the breath into alcohol in the blood; in fact, this ratio varies widely from person to person (and within a person from one moment to another). Radio frequency interference can result in inaccurate readings. These and other defects in analysis can be brought out in cross-examination of the state's expert witness, and/or the defense can hire its own forensic chemist.
Testing during the absorptive phase. The blood, breath or urine test will be unreliable if done while you are still actively absorbing alcohol (it takes 45 minutes to three hours to complete absorption; this can be delayed if food is present in the stomach). Thus, drinking "one for the road" can cause inaccurate test results.
Retrograde extrapolation. This refers to the requirement that the blood-alcohol concentration be "related back" in time from the test to the driving (see following discussion on "BAC defense"). Again, a number of complex physiological problems are involved here.
Regulation of blood-alcohol testing. The prosecution must prove that the blood, breath, or urine test complied with state requirements as to calibration, maintenance, etc.
License suspension hearings. A number of issues can be raised in the context of an administrative hearing before the state's department of motor vehicles.
WHAT IS A "RISING BAC DEFENSE"?
It is unlawful to have an excessive blood-alcohol concentration (BAC) at the time of DRIVING -- not at the time of being TESTED. Since it takes between 45 minutes and 3 hours for alcohol to be absorbed into the system, an individual's BAC may continue to rise for some time after he is stopped and arrested.
Commonly, it is an hour or more after the stop when the blood, breath or urine test is given to the suspect. Assume that the result is .12%. If the suspect has continued to absorb alcohol since he was stopped, his BAC at the time he was driving may have been only .08%. In other words, the test result shows a blood-alcohol concentration above the legal limit -- but his actual BAC AT THE TIME OF DRIVING was below.
I WANT A LAWYER - Top - Home - More Legal Topics - Disclaimer
WHAT IS THE PUNISHMENT FOR DRUNK DRIVING?
Though this varies according to the laws of the state and the customs of the local jurisdiction, penalties have become very tough in the past few years. Generally speaking, a conviction for a first offense may involve a fine, a license suspension or restriction, attendance at a DUI education course for a period of time, and probation for perhaps three years. A short jail sentence may or may not be required; for a second offense, it almost certainly will.
Additional punishment may involve community service, ignition interlock devices and/or impounding of the vehicle.
WHAT IS A SENTENCE "ENHANCEMENT"?
Most states increase the punishment in drunk driving cases if certain facts exist. The most common of these is an earlier conviction for the same or a similar offense -- usually within five or seven years of the current offense. Other commonly encountered enhancements include:
A child was in the car at the time.
The defendant was traveling 20 or 30 miles over the speed limit at the time.
The blood-alcohol concentration was over .20%.
The defendant refused to submit to a chemical test.
There was property damage or injury.
In most states, the existence of any personal injury caused by drunk driving elevates the offense to a felony. A death can trigger manslaughter or even, in a few states, second degree murder charges.
I WANT A LAWYER - Top - Home - More Legal Topics - Disclaimer
IF I AM CONVICTED OF "DRUNK DRIVING", CAN MY INSURANCE COMPANY RAISE MY AUTO INSURANCE RATES?
Absolutely, but not necessarily so.
The results will vary from state to state, and may depend on such factors as how long you have been insured with the company and your past driving record. If you are dropped, you will have to shop around for a new insurer and chances are your rates will be sky-high. Your increase in insurance rates can constitute the single biggest financial cost of being convicted for drunk driving.
I WANT A LAWYER - Top - Home - More Legal Topics - Disclaimer
Click on any Topic and Learn Your Legal Rights
Topics not underlined are under construction
ACCIDENT LAW
Auto, Boating/Swimming, Bus/Plane/Train, Slips & Falls, Traumatic Brain Injury, Wrongful Death
BANKRUPTCY LAW
Business Bankruptcy, Collections, Consumer Bankruptcy, Credit Problems, Creditor's Rights
BUSINESS LAW
Corporations, Franchise Law, Partnerships, Starting a Business, Trade Regulation
CRIMINAL LAW
Arrests and Searches, Drug Crimes, Drunk Driving, Parole/Probation, Violent Crimes, White Collar Crime
EMPLOYMENT (LABOR) LAW
Firing, Job Discrimination, Pensions & Benefits, Sexual Harassment, Workers Comp
ESTATE PLANNING
Asset Protection, Elder Law, Estates Legalese, Probate, Trusts, Wills
FAMILY LAW
Adoption Law, Child Custody, Child Support, Divorce Law, Domestic Violence, Pre Marital Agreement, Spousal Support
FINANCIAL LAW
Banking Law, Broker Disputes, Commodities Law, Investment Terms, Raising Capital, Securities Law
GENERAL PRACTICE
Contract Law, Guarantees, Legal Remedies, Licenses, Suing/Being Sued, Traffic Law
GOVERNMENT LAW
Agricultural Law, Civil Rights Law, Education Law, Environmental, Military Law, Public Contracts, Social Security Law
IMMIGRATION LAW
Citizenship, Permanent Residents, Student Visas, Tourist Visas, Work Visas
INSURANCE LAW
Auto Insurance, Business Insurance, Disability Insurance , Health Insurance, Insurer's Bad Faith, Life Insurance Law, Property InsuranceINTELLECTUAL PROPERTY
Communications Law, Computer Law, Copyright Law, Patent Law, Trade Secrets, Trademark Law
INTERNATIONAL LAW
LITIGATION
Appeals, Arbitration, Civil Law Suits, Mediation, Small Claims
PERSONAL INJURY
Defective Products, Libel and Slander, Malpractice Law, Property Damage, Work Related Injury
REAL ESTATE LAW
Buy / Sell a Home, Commercial Real Estate, Condemnation, Landlord / Tenant, Mortgage Matters, Zoning
TAX LAW
Corporate Tax Law, Estate Tax Law, Gift Tax Law, Income Tax Law, Property Tax Law
Disclaimer:
FreeAdvice is the leading legal site for consumers and small businesses. It provides general legal information to help people understand their legal rights in 100 legal topics, but is not a substitute for personal legal advice from an attorney. You are welcome to view FreeAdvice for your own personal, non-commercial purposes, AS IS, subject to our disclaimer and conditions of use.
FreeAdvice.com and AttorneyPages.com are units of Advice & Counsel ©1996-1998 - All Rights Reserved. FreeAdvice is a registered trademark.
For feedback, listing or advertising information only — we do not provide individual legal advice — contact us by Email at admin@freeadvice.com. We can be contacted by mail: 70 Lomita Drive, PO Box 1739, Mill Valley, CA 94942-1739; by Phone: (415) 388-5000 or by Fax: (415) 388-5005 - For Computer Network Operations Only contact us by Email at webmaster@freeadvice.com or by telephone (908) 719-2244
Lawyers - Want Information on Getting Listed on AttorneyPages?
CLICK A STATE TO FIND ATTORNEYPAGES' LAWYER DIRECTORY FOR THIS LEGAL TOPIC
Alabama Alaska Arizona Arkansas California Colorado Connecticut DC Delaware Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New Hampshire New Jersey New Mexico New York North Carolina North Dakota Ohio Oklahoma Oregon Pennsylvania Rhode Island South Carolina South Dakota Tennessee Texas US Caribbean Utah Vermont Virginia Washington West Virginia Wisconsin Wyoming Foreign Lawyers
This page was last updated December 29, 1998
Contributing Authors of this section
|
