20 DUI FAQs
We've Compiled the Top 20 Most Frequently Asked Questions Regarding Michigan OWI/DWI/DUI
If you've been charged with operating a motorized vehicle under the influence, you probably have a lot of questions. Here are the top 20 Michigan DUI questions asked by our clients, prior to hiring us. Read the information provided here or call us anytime. You will speak directly to Richard Lippitt for the most accurate information regarding your Michigan DUI defense.
- 1. What is DUI / DWI / OUI etc?
“Driving under the influence” is often referred to as DUI and “driving while intoxicated” is known as DWI. It is also not uncommon to have a police officer or a prosecutor write a ticket for “operating under the influence” (OUI) or “operating while intoxicated” (OWI). These are just but four names for what is essentially the same crime: drunk driving. The different names for the crime reflect differences in local and state statutes that define the crime. Do not become overly concerned with the particular acronym under which you may have been charged because all the different ordinances and statutes were established for the same common purpose of punishing drunk driving and driving under the influence of illegal drugs.
Each year, more than 30,000 individuals in Michigan are charged with alcohol and driving offenses. Groups such as MADD and SADD have been very effective at applying pressure to police agencies. Additionally, the public at large has encouraged their state and federal legislators to “crack down on drunk driving”. It is accepted as a legal fact that the laws against alcohol and driving offenses only get tougher and tougher as time passes. The days of the police taking away a driver’s keys and making him walk home have long since passed.
It is for these reasons that now, more than ever, it is important that you choose an attorney who has significant experience in the field of drunk driving defense.
Michigan law has lowered the legal blood alcohol concentration (BAC) limit from .10 to .08 percent for adults. Additionally, for those drivers under the age of 21, Michigan has enacted a Zero Tolerance law that prohibits underage drivers from having any measurable amount of alcohol in their blood system. It is not hard to understand that as the laws become tougher and tougher, the possibility of being charged with drunk driving has greatly increased. Conduct which was at one time “legal” is now considered to be drunk driving. After an arrest for drunk driving, a defendant will have to appear in a Michigan court a multitude of times. It is imperative that you have the highest quality representation at your side each and every time you appear before a judge. Only a highly experienced drunk driving attorney will possess the knowledge and skill that is required to respond to the many different turns that a drunk driving case may take.
Repeat offenders have a unique set of hurdles that need to be faced. Many state legislatures have passed laws requiring mandatory jail time for subsequent drunk driving convictions, and some states prohibit plea-bargaining in drunk driving cases. The fines have become steeper, the license suspension periods have become longer, and getting a “hardship” license that permits travel to and from work has become more difficult. If you’ve been charged with drunk driving, you need the help of an experienced drunk driving attorney so that, in view of these ever-harsher penalties, you can work as a team toward the best possible outcome.
Fines and possible imprisonment may seem like the scariest part of a drunk driving charge, but the effects of a conviction can actually reverberate into the offender’s life in other lasting and insidious ways, too. In some cases, the offender may have to forfeit his or her vehicle, for example, and in nearly all cases the offender will have some form of restriction placed upon his/her driver license, at least temporarily. Without a license, it may be impossible to find or keep a job or to take care of a family’s needs. Auto insurance can be hard to get and extremely costly after a drunk driving conviction. A lawyer experienced in drunk driving law can explain all of the potential consequences and work hard to minimize the long-term effects of a drunk driving charge.
- 2. How Can a DUI Attorney Help?
An experienced attorney can do many things to challenge and disprove the evidence of the accused. This includes reviewing the calibration and maintenance records of the machine used to test blood alcohol level. It is falsely believed that these machines are infallible. To believe that they always work is like believing your car will never break down. Machines do not always work properly.
An experienced attorney may file pretrial motions to suppress the evidence if the facts support such an argument. These motions, when argued successfully, may result in the DUI case being dismissed. It is very important to effectively cross-examine the officer to expose mistakes and inaccuracies in the gathering of evidence.
An experienced attorney may choose to retest the blood by a private lab, and possibly hire an analyst to determine if the blood alcohol concentration (BAC) was rising. This defense may prove the driver’s blood was actually less than Michigan’s legal limit at the time of driving.
In some cases, it is very important to photograph the scene of the arrest and view police videotape of the arrest if available. This may be helpful in showing that the ground was not level when the driver was performing the field sobriety tests. Any inaccuracies in the officer’s report and testimony could be challenged with the videotape.
- 3. How Does the Criminal Judicial Process Work?
Criminal Court Process:
This is the date set after your arrest. It will usually take place approximately 30 to 60 days after your arrest. Many courts will allow your attorney to “waive” your arraignment, thus eliminating an unneeded appearance in court. Individuals who have not retained an attorney are generally not allowed to “waive” arraignment. An arraignment is the hearing wherein the judge advises what charges are filed against you and requests a plea to be entered on your behalf. In virtually every case we enter a plea of “not guilty” on your behalf. We will then file for discovery to obtain the complaint, police report and all other prosecution documents regarding your case. We will copy and forward to you all documents for your review. The judge, in concluding the arraignment, will decide whether any conditions should be imposed on you while the case is pending. Usually, in Michigan, first-time offenders with no enhancements, accidents and non-lethal blood alcohol levels would not have any conditions other than no drinking and driving. For more serious cases such as multiple offenders, accident cases and injury cases, the judge could order you to attend alcoholics anonymous meetings, a higher bail, a treatment program or place an ignition interlock on your car.
(B) Pre-Trial Conference:
We will then schedule a future court appearance known as a pre-trial conference. A pre-trial conference is a conference prior to trial where a number of issues will be resolved such as evidence being requested and provided, negotiation of strengths and weakness of the case, scheduling of future court appearances, etc. Your attorney will discuss your case with the prosecutor and negotiate the best possible plea bargain. It will usually happen about four weeks after arraignment. The date is set by the court and your attorney. In between the first and second court appearance, we will be making a discovery request on the law enforcement agencies, crime labs and prosecution offices involved in your case. This discovery request is the method attorneys utilize to obtain the evidence pertaining to your case. It is critical that your attorney secures all the significant items of evidence so that we may be able to give an informed opinion regarding the strength of your case. We will be exploring resolution of your case at the pretrial conference. In terms of the number of pre-trial conferences, there may be one or more depending on a variety of factors.
(C) Suppression Hearing:
Before trial, we may want to file some pre-trial motions that may or may not require your attendance to challenge the admissibility of the prosecutor's evidence. A ruling in your favor can result in evidence being excluded from your trial, including evidence of a blood or breath test, the results of some or all of the field sobriety tests or adverse statements you may have made. Successful pre-trial motions often compel the prosecutor to make an advantageous plea bargain offer or can result in the dismissal of the charge based on an unconstitutional stop. The court may suppress some or all of the evidence against you if your constitutional rights have been violated. Your attorney may file various motions to suppress the evidence against you. It occurs anywhere from six weeks to three months after the pre-trial conference.
Michigan law allows a defendant to have either a trial in front of a jury or alternatively, only in front of a judge. If a defendant chooses to have a jury trial, his/her matter will be heard in front of six jurors. A case that is heard in front of the judge only (without a jury) is referred to as a “bench trial”. In most but not all cases, the best course of action is to have your matter heard before a jury. Alcohol and driving trials can present a variety of technical or complicated issues. While it is impossible to predict the length of a trial during a case's preliminary stages, in general, a trial typically lasts between one and two days.
The court imposes a sentence after a conviction at trial or after a plea bargain is accepted and a plea entered. Sentences may include jail time, in-home detention, public service, alcohol classes and/or fines. First-time offenders, while facing a potential 93 days of incarceration, will typically receive a 12 to 24-month probationary term with no additional incarceration. A second-time offender (i.e., two alcohol offenses within a seven-year period) faces a maximum one-year period of incarceration, although such a sentence would be rare.
- 4. Will I Lose My Driver’s License?
Michigan law allows the Secretary of State to impose up to a lifetime revocation of all driving privileges if you are convicted of a Michigan OWI.
It is absolutely critical that you hire an attorney who focuses his or her practice on drunk-driving defense. Your driving privilege is perhaps the most valuable asset you own, even more valuable than your home or retirement account, for you simply cannot continue to earn a living without driving privileges.
The Michigan Secretary of State can automatically revoke your driving privileges if you refused to submit to a blood or breath test when asked to comply by the police. The revocation of your driving privileges can be imposed even if you have not yet appeared in court. If the police are alleging that you refused to provide a breath or blood sample, even if such an allegation is false, you will only have 14 days in which to appeal. If you do not file a request for hearing within 14 days of allegedly refusing to provide a breath or blood sample, your Michigan driver’s license will be automatically revoked for one year, even if your case hasn’t been scheduled for its first court hearing. If there is an allegation that you refused to provide a blood or breath sample, you must act fast.
Even if you have previously had a perfect driving record, a conviction for a Michigan OWI first offense can result in a 30-day revocation of all driving privileges, followed by a 150-day period of restricted driving (to only work, school, doctor, court and counseling/AA). Michigan OWI first offense defendants who register blood alcohol levels of .17% or higher can be charged as “Super Drunk”. In those cases, you can have your driving privileges completely revoked for 45 days. After the 45 days has passed, you may only drive over the next 320 days with the installation of a BAC interlock ignition device. If you choose not to have the interlock ignition device installed, then your license will remain completely revoked for that additional 320-day period.
If this is your second Michigan OWI conviction within seven years of your previous OWI conviction, the Secretary of State can impose what is, in essence, a lifetime license revocation. After the one-year revocation period has passed, you are then eligible to request a reinstatement hearing which is held at a Secretary of State hearing office. These reinstatement hearings are usually very difficult and often result in continued denial of privileges. If you are denied at the Secretary of State hearing, you may not request a new reinstatement hearing until a full year has passed from the date of your hearing. Many times, defendants convicted of Michigan OWI second offense can be without driving privileges of any sort for two, three, four or more years. When your Secretary of State reinstatement hearing is ultimately successful, you are then only privileged to drive during limited times and only with the installation of an expensive and embarrassing interlock ignition device. This is required to be installed, used and monitored for a full year, after which time you may appeal for another hearing with the Secretary of State for full driving privileges, provided there have been no violations recorded with the interlock ignition device.
Michigan OWI third offense convictions often result in up to a five-year complete revocation of all driving privileges. Like the OWI second offense defendants described above, reinstatement of driving privileges can be granted only after a Secretary of State reinstatement hearing.
Michigan Secretary of State hearings, whether for refusal to provide blood or breath samples or for reinstatement purposes, are notoriously difficult hearings. There is a “clear and convincing evidence” burden that you must meet during the hearing. The police or the hearing officer does not need the presence of overwhelming evidence to deny you your driving privileges. It is critical that you hire a skilled Michigan OWI attorney who knows how to navigate the tricky Michigan Secretary of State process.
- 5. Am I Going To Jail?
MCL 257.625, Michigan’s drunk driving statute, allows for up to 93 days in jail for first-time offenders, and up to one year for second-time offenders. As a practical matter, if this is your first alcohol and driving charge it is unlikely that you will face incarceration above and beyond the period immediately following your arrest. Even if you are convicted, the vast majority of first-time defendants receive a term of probation rather than incarceration. However, there are very few judges that have adopted a policy of incarcerating first-time offenders. Obviously, your chances of jail time increase if you have prior alcohol and driving convictions.
For first-time offenders, the most likely way to receive a term of incarceration is by failing to perform each and every task associated with a term of probation. Judges take a dim view of defendants who have been spared incarceration and then fail to satisfy their probation requirements. Far and away, the single most common way to receive incarceration for a probation violation is by testing positive for alcohol and/or drugs.
Additionally, what actions you take after your arrest can make a significant impact upon the potential punishments you may face. Individuals who have been pulled over with particularly high BAC’s (.15 or higher) may face a harsher penalty than those individuals whose BAC calculator is just minimally above the legal limit of .08. Repeat offenders and high BAC defendants may want to involve themselves in rehabilitative programs as a demonstration of their seriousness. In general, judges are positively influenced by defendants who demonstrate an open and responsible attitude. Conversely, judges often frown upon high BAC defendants and repeat offenders who take little or no rehabilitative actions between the time of their arrest and sentencing.
- 6. What are Some Potential Defenses to a DUI Charge?
There are many potential defenses in a DUI case because of the complexity of the offense. The majority can be broken down in the following areas:
Intoxication is not enough. The prosecution must prove that the defendant was driving. This may be difficult if, as in the case of some accidents, there are no witnesses to identify the driver of the vehicle.
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.
Incriminating statements may be suppressed if warnings were not given at the appropriate time.
Under the Influence
The officer’s observations and opinions as to intoxication can be questioned. An attorney should attack the circumstances of the field sobriety tests and the predisposed nature of what the officer considers “failing”. Other witnesses can also testify that you appeared to be sober.
Blood-alcohol concentration (BAC)
There exists a wide range of potential problems with blood, breath or urine testing. Most breath machines will register many chemical compounds found on the human breath as alcohol which can be referred to as a “non-specific” analysis. Also, breath machines assume a 2100-to-1 ratio in converting alcohol in the breath into alcohol in the blood which varies greatly from person to person (and within a person from 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 absorption phase
The blood, breath or urine test will be unreliable if done while you are still actively absorbing alcohol (it takes 30 minutes to three hours to complete absorption). This can be delayed if food is present in the stomach. Thus, having one last quick drink at the bar can cause inaccurate test results.
This refers to the requirement that the BAC be “related back” in time from the test to the driving. 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 Michigan's requirements as to calibration and maintenance.
- 7. What do Police Officers Look for When Searching for Drunk Drivers on the Highways?
Most DUI arrests occur at night and on weekends. The following is a list of symptoms in descending order of probability that the person observed is driving while intoxicated while driving at night. The list is based on research conducted by the National Highway Traffic Administration (NHTSA):
Interestingly, speeding has not been identified by NHTSA as an indicator of impairment. However, it is a common prosecution tactic to argue that speeding is “risk-taking” behavior suggestive of diminished judgment occasioned by alcohol consumption. In reality, most police officers will admit that totally sober persons drive 10 miles over the posted speed limit late at night when the traffic is light.
- Turning with a wide radius
- Straddling center of lane marker
- “Appearing to be drunk”
- Almost striking object or vehicle
- Driving on other than designated highway
- Speed more than 10 mph below limit
- Stopping without cause in traffic lane
- Following too closely
- 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
- 8. What is the Officer Looking for During the Initial Detention at the Scene?
Police officers are trained to note the following “symptoms of intoxication” on their report:
- Flushed face (How does he know your “normal” coloring?)
- Red, watery, glassy and/or bloodshot eyes (Been up 20 hours?)
- Odor of alcohol on breath (Doesn’t non-alcoholic beer smell just like Bud?)
- Slurred speech (How does he know your regular speech patterns?)
- 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 or to “divide attention”
- 9. If the Officer Asks Me If I Have Been Drinking, How Should I Respond?
If a police officer asks “have you been drinking?”, your answer will be a significant factor in the officer’s decision to arrest you, and in the prosecution’s case against you if you are charged and tried for drunk driving. I believe such questions are “accusatory” in nature and you should respectfully decline to respond in a polite and courteous manner. I would suggest you respond, “I would like to speak with an attorney before I answer any questions”.
It must be remembered that the officer does have a right to certain information which the courts appear to look upon as routine questions. For example, what is your name, what is your address, what is your date of birth, etc. When the officer inquires into drinking, however, ask for an attorney as set forth above. The officer will them probably say you do not have a right to an attorney and ask you to answer the question. At this point, I think your best course of action would be to “respectfully” decline to answer. A good DUI attorney will give the jury some reason for your respectfully declining to answer the question.
- 10. Should I Refuse to Submit to the Field Sobriety Tests?
You are not legally required to take a field sobriety test. This is unlike the chemical tests to determine your blood alcohol concentration [BAC]. When asked to take a chemical test by a police officer who has already arrested you, if you refuse there are serious consequences, i.e., loss of drivers license for a year. I would recommend that you respectfully decline to take the field sobriety test. Remember, always be polite and courteous to the officer. If you are rude or become abusive or obstructive, the only person who is going to lose is you, not the police officer. You can certainly refuse the field sobriety tests in a polite and courteous manner.
- 11. Do Field Sobriety Tests Hold Up?
Every law enforcement agency in Michigan that conducts Michigan OWI arrests adheres to standardized field sobriety tests as developed by the National Highway Traffic Safety Administration.
Even for a sober person, it is easy for the police to allege that you have failed their field sobriety tests. It is critical that you hire a Michigan OWI defense attorney who is very familiar with the intricacies of field sobriety tests.
The officer who arrests you has the right to ask you to perform a variety of field sobriety tests. These can include a walk-and-turn test, a one-legged stand, a recitation of numbers or the alphabet and a horizontal gaze nystagmus test. The police administer these field sobriety tests to confirm the necessary “probable cause” to place you under arrest. Many defendants feel the field sobriety tests are against them from the beginning. For instance, an officer can ask you to hold your leg off the ground and count to 15. If you successfully hold your leg off the ground and count to 16 or greater, the officer will allege that you failed that test, even though it took physical skill to hold your leg above the ground.
The police officer is keenly observing you for signs of intoxication. He is looking to see if you are unsteady on your feet, slurring your words or are unable to follow simple instructions. If the officer believes you to be exhibiting any of these qualities, he can then allege that he possesses the probable cause to place you under arrest.
The horizontal gaze nystagmus test is a particularly difficult test. The officer is examining your eyes for neurological signs of intoxication. During the test, the officer will ask you to hold your head perfectly still while he looks into your eyes. The officer is looking for what is referred to as “lack of smooth pursuit”. The eyes of an intoxicated person can exhibit a jerking motion when following the movement of a pen or finger. If the officer notices these sudden eye motions, he can claim that he possesses the probable cause to place you under arrest for a Michigan OWI.
Notwithstanding the fact that defendants feel the field sobriety tests are stacked against them, a good Michigan OWI defense attorney can attack the credibility of these tests. There are countless instructional manuals that describe the exact methodology under which the field sobriety tests can be performed. Oftentimes, upon review of videotape or other evidence, an experienced Michigan OWI defense attorney can pick apart specific moments where the arresting officer has performed field sobriety tests incorrectly. In some cases, this can lead to a dismissal of charges.
- 12. Do I have the Constitutional Right to Speak to an Attorney Before I Have to Take a Field Sobriety Test?
In the state of Michigan, and in the vast majority of the states, your right to an attorney or to advice of counsel does not attach until you are formally arrested or placed in “custody”. Other states vary from the position that you have the right to consult an attorney upon being arrested to you have the right to presence of counsel to assist you to decide whether or not to submit to a chemical test. If at any time during the officer’s stop, you believe you need an attorney, I believe it is always good policy to ask for an attorney. Listen to what the officer says in response to your request for an attorney, this response could be very important if he/she misrepresents what the law is to you. This information could go to reflect upon the officer’s credibility and could be used to impeach the officer at trial.
- 13. Can I refuse a Breathalyzer Test?
In virtually every instance in which an individual is arrested for a Michigan OWI, the arresting officer will request that you submit to a breath or blood sample to determine your blood alcohol content (BAC).
Oftentimes, defendants will refuse to provide the breath or blood sample under the belief that “I don’t want to assist the police in collecting evidence of my guilt.” Unfortunately, the refusal of a breath or blood sample request during the course of a Michigan OWI arrest could cause a revocation of all of your Michigan driving privileges. An experienced Michigan OWI defense lawyer can help you from losing your Michigan driving privileges.
Clients who have refused to provide a breath or blood sample to the arresting officer are typically shocked to learn that all of their Michigan driving privileges can be completely revoked, even before receiving notice of their first court date. The revocation takes place via the Michigan Secretary of State and not through the court system. Sometimes your first court hearing can be a few months after your arrest, but that will not prevent the Secretary of State from taking immediate action against your driver's license.
If there is an allegation that you refused to provide a blood or breath sample, even if the allegation of refusal is untrue, it is imperative that you request a hearing with the Secretary of State within 14 days of your arrest. If you do not demand a hearing with the Secretary of State within the 14-day window, your license will become 100% revoked. The hearing that is requested within the 14-day window is known as an “Implied Consent” hearing. At the hearing, the arresting officer will appear and provide evidence that you unreasonably refused to provide a blood or breath sample when asked. That does not mean you will automatically lose the Implied Consent hearing; a qualified Michigan OWI defense attorney can explore numerous defenses as to why you allegedly refused to provide a blood or breath sample. Perhaps the most common defense is that the arresting officer did not advise you that your refusal to provide a blood or breath sample would result in a loss of your driving privileges. Michigan law requires the arresting officer to advise you of such rights.
The Michigan Secretary of State Implied Consent hearing requires the arresting officer to be present at the time of your hearing. In fact, the officer needs to be present within 15 minutes of the appointed time. If the police officer fails to appear or arrives 16 minutes late, the allegation of Implied Consent refusal will be dismissed and there will be no adverse action taken against your driver’s license. While it is highly atypical for the officer to not show up or arrive late, it does happen on rare occasions.
If your Michigan Implied Consent hearing is unsuccessful, you will need to make a “hardship appeal” to the circuit court in the county where you were arrested. Even if you were not successful at the earlier hearing, the circuit court can grant you hardship driving privileges. An experienced Michigan OWI defense attorney will know how to coordinate the timing of such a hearing so as to prevent even a single day’s loss of driving privileges.
- 14. Are Breath Test Results Reliable?
There are many faults with the way a breath testing machine analyses the air that is introduced to it. These tests can be very unreliable and susceptible to attack by a lawyer who understands the weakness of a breathalyzer.
One of the major defects in many methods of blood-alcohol analysis is the failure to identify ethanol (also referred to as ethyl alcohol) to the exclusion of all other chemical compounds. To use the terminology of scientists, such methods are not specific for ethanol; they will detect other compounds as well, identifying any of them as “ethanol”. As a result, a client with other compounds in his blood or breath may have a high “blood-alcohol” reading with little or no ethanol in his body.
This problem of non-specificity is most noticeable in the use of infrared breath-analyzing instruments (the most popular type of breath testing machines used today). Yet they are particularly susceptible to giving false readings due to non-specificity. The technical reason for this lack of specificity is that most breath machines are not designed to detect the molecule of ethyl alcohol (ethanol), but rather only a part of that molecule—the methyl group. In other words, it is the methyl group in the ethyl alcohol compound that is absorbing the infrared light, resulting in the eventual blood-alcohol reading. As a result, the machine will “detect” any chemical compound and identify it as ethyl alcohol if it contains a methyl group compound within its molecular structure. The breathalyzer assumes that the methyl group is a part of an ethyl alcohol compound.
- Isopropyl Alcohol
- Ethyl chloride
- Acetic Acid
Acetone and acetaldehyde, interestingly, can be found on the human breath. In fact, recent studies have found that over one hundred chemical compounds can be found on the breath at any given moment in time. More important, approximately 70 to 80 percent of these compounds contain methyl groups. And the infrared breath machine will detect each of these as “ethyl alcohol”.
To make matters worse, the machine detects alcohol through “additive absorption”. In other words, the more methyl groups the instrument detects by their absorbing the infrared energy, the higher will be the blood-alcohol reading. As a result, all of the non-alcoholic compounds on the breath will have a cumulative effect—that is, the errors will be added one on top of another.
How prevalent are chemicals in the breath that can register on breath analyzing machines? Here are some common things that can give falsely high readings:
- Untreated diabetics
- Persons on a weight reduction diet
- Long-term smokers are more likely to have higher blood-alcohol readings due to a greater amount of acetaldehyde in the lungs.
- Alcoholics can have 5 to 55 times higher levels of acetaldehyde in their breath or blood than that in nonalcoholics.
- Inhaling paint and glue fumes
- Inhaling lacquer fumes
- Swallowing unleaded gasoline
- Bread products of various types
There have been a number of recognized studies on the existence of chemical compounds on the breath, all concluding that a wide variety of compounds exists, including compounds containing the methyl group.
- 15. The Officer Never Gave Me a Miranda Warning: Can I Get My Case Dismissed?
No. The officer is supposed to give a Miranda warning after he arrests you. From a practical standpoint, the police will delay the arrest decision long enough to allow you to make numerous inculpatory statements. The only consequence of a Miranda violation is that the prosecution may not use any of your answers to questions asked by the police after the arrest. Even this limitation has been eroded because statements made in violation of Miranda can be used for impeachment purposes, should you testify in your own behalf at trial. Again, the wisest course of action is to say nothing regardless of whether or not you have been formally placed under arrest.
Of more consequence in most cases is the officer’s failure to advise you of the state’s “implied consent” law. That is, your legal obligation to take a chemical test and the consequences if you refuse. This can affect the suspension of your license.
- 16. What is "Blood-Alcohol Concentration" or "Blood-Alcohol Level"?
Blood-alcohol concentration (BAC) is the level of alcohol in the bloodstream from drinking alcoholic beverages. BAC readings are used in court as evidence in drunk-driving cases. The most common method of measurement is a breath test, although blood and/or urine testing is sometimes done. A result of .08 or higher may establish a presumption of intoxication. The details of the .08 BAC presumption laws vary among the states, but all 50 states have adopted .08 as their official intoxication level, in large part because of a federal threat of otherwise withholding highway funds.
- 17. How Can I Tell Whether I've Drank Enough to be Over the Legal Limit?
The results of the breath tests, blood tests or urine test will largely determine the charges brought and the possible sentences. The so-called “per se” offense (driving over .08%) is defined by the blood-alcohol level; the “DUI” offense (driving under the influence) is partially proven with a rebuttable presumption of intoxication if the result is over .08%.
It is important to realize that the DUI laws relate to the blood-alcohol level AT THE TIME OF DRIVING — not at the time of the test; there may be a significant difference, not to mention difficulties of proof. It is also important to understand that tests — particularly breath tests — are unreliable and susceptible to attack by an attorney who is knowledgeable in the science of blood-alcohol analysis.
Online Blood-Alcohol Calculator
A simple calculator to determine your theoretical blood-alcohol level with different amounts of alcohol consumed is available to the right of this webpage.
- 18. Does the Car Have to be Moving for Me to be Guilty of DUI?
No. You can be arrested for DUI by driving while over the legal BAC limit or while impaired. However, you need not actually operate the car in order to be arrested. You can still be found guilty if you had the capability and power to dominate, direct or regulate the vehicle, regardless of whether you were exercising that capability or power at the time of the arrest. In other words, simply sitting behind the wheel with the keys in the ignition can lead to your arrest for DUI by being in actual physical control of the car.
- 19. Will I be Able to Keep My Auto Insurance?
After completing the sentence imposed by the court, the drunk driving offender is often eager to resume his or her normal life. Returning to work, school and other activities generally requires driving, however, and driving requires automobile insurance. One of the consequences of a drunk driving conviction that many offenders may not think about until the worst seems to be behind them is the prospect of obtaining auto insurance after a conviction. An attorney experienced in drunk driving law can explain — and possibly even circumvent — the full range of repercussions that can result from drunk driving, regarding insurance and otherwise.
One of the unfortunate consequences of a DUI arrest and/or conviction is that insurance companies will view you as a “high risk” driver. Many of the larger companies, such as AAA and Geico, may not offer coverage, while others will quote rates two or three times higher than before the drunk driving incident. Generally speaking, this is price-gouging, also known as the “DUI tax”; the statistics on accidents for first offenders simply do not justify the high premiums. The simple fact is that quotes vary greatly from one company to another: price shopping is strongly advised.
- 20. Will I Have to Appear Before a Jury?
Most people are not lucky enough to have the charges dismissed, and in order to win their cases, they have to take their cases to trial by jury. I believe juries focus on two things at your trial. First, they want to know that you have learned your lesson. I will try to assure them that you were traumatized by this experience and that you will not drink and drive in the future. DWI is a crime that the jury can usually relate to. Most people have known someone who has been arrested for DWI. Second, the jury considers whether the state has proven that you were intoxicated beyond a reasonable doubt.
The key in picking a jury is to find people who believe it is alright to have a drink and then drive and then giving them information that causes them to have reasonable doubt about whether you were intoxicated.
To establish reasonable doubt, I will do the following:
- Give an explanation for how you were driving
- Try and show that you stopped when the police officer asked you to stop
- Provide an explanation for whatever other signs of intoxication the officer says he observed.
- Obtain records of any of your physical handicaps.
- Tell the jury how much you had to drink and why this did not cause you to be intoxicated
- Use the manual the officer was trained with to challenge the field sobriety tests he gave you. I will use the manual to try and show that the officer did not administer the tests properly. If the officer did not administer the tests properly, then I will ask the judge to exclude the tests.
- Show that there was no good reason for you to take the breath test.
If you've been arrested for DUI, DWI, or OWI, call me. I've helped hundreds of people stay out of jail, avoid penalties, and protect their rights, and I can help you.
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