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F.A.Q
General
When will my DUI be removed from my record?
Unfortunately a DUI can stay on your record forever. The majority of people out there think that a DUI conviction will automatically be removed from your record after a certain period of time.
Some States will remove a DUI conviction from your record after a certain period of time. While in other States a DUI can remain on your record forever with no possibility of having it removed.
It is important that you check your State specific laws reagrding expungement.
Can a person be arrested for refusing to take the Standardized Field Sobriety Tests?
Absolutely not! The majority of people out there are not aware that they have the right to refuse the field sobriety tests. The standardized field sobriety tests are optional tests and are not required by law.
These tests were designed to be failed, so why set yourself up for failure? When the officer asks you to perform the field sobriety tests, all you need to do is politely decline the request.
What is the drivers license compact?
The Interstate Drivers License Compact is an agreement between the 45 participating states to inform each other of certain types of convictions such as DUI, DWI, DWAI and OVI. Georgia, Massachusetts, Michigan, Tennessee and Wisconsin are not members of the Interstate Drivers License Compact and do not share information on drunk driving convictions with the other states.
What do police officers look for when they are searching for drunk drivers on the roads?
The following is a list of symptoms in descending order of probability that the person obserrved is driving under the influence. 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 an object or vehicle
Weaving
Driving on other than designated highway
Swerving
Speed more than 10 mph below the posted speed limit
Stopping without cause in traffic lane
Following too closely
Drifting
Tires on center lane marker
Braking erratically
Driving into opposing or crossing traffic
Signaling inconsistent with driving actions
Slow response to traffic signals
Stopping inappropriately
Turning abruptly or illegally
Headlights off when when it is dark
Do I have the right to an attorney during the 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 a blood, breath or urine test.
What is an officer looking for during a DUI stop?
The traditional symptoms of intoxication taught at the police academies are:
- Flushed face
- Red, watery, glassy or bloodshot eyes
- Odor of alcohol on breath
- Slurred speech
- Fumbling with wallet trying to get license,br>
- Failure to comprehend the officer's questions
- Staggering when exiting vehicle
- Swaying or instability on feet
- Leaning on car for support
- Combative, argumentative or other inappropriate attitude
- Soiled, rumbled, disorderly clothing
- Disorientation as to time and place
- Inability to follow directions
Why did the officer make me follow a penlight with my 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 during movement from left to right.
If this occurs sooner than 45 degrees, it theoretically indicates an excessive blood-alcohol concentration. The smoothness of the eye's tracking the penlight 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 the non-medically trained officer's ability to recognize nystagmus and estimate the angle of onset.
Because of this, and the fact that the test is not accepted by the medical community, it is not admissible as evidence in many states; it continues, however, to be widely used by law enforcement.
What happens if I refuse to take a chemical test?
The consequences of refusing to submit to a blood, breath or urine test varies according to the state. Generally, there are three adverse results for a refusal:
Your driver's license will be suspended for a period of time, commonly three, six or twelve months. This 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 ofer 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.
The officer never gave me a Miranda warning, can I get my cas dismissed?
No. The officer is supposed to give a 5th Amendment warning after he arrests you. Often, however, they do not. The only consequence os 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 penalties you face if you refuse the test.
Refusing a chemical test can effect the suspension time frame you face on your license. So pay particular attention to whether or not this advisement was given.
Why am I being charged with two separate crimes?
The traditional offense is "driving under the influence of alcohol" (DUI) or, in some states, "driving while intoxicated" (DWI). In recent years, however, most states have also enacted a second, so-called "per se" offense: driving with an excessive blood-alcohol concentration (.08%).
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.
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?
Agreed, it is blatantly unfair. But the law in most states having a "per se" statue provides for immediate suspension and confiscation of a person's license if the breath test result is above the legal limit.
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 - Usally within five or seven years of the current offense. Other commonly encountered enhancements (which must usually be alleged in the complaint) include:
A child was in the car at the time.
The defendant was traveling 20 or 30 miles an hour over the posted speed limit at the time>
,br>
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 existance 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.
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 or she is stopped and arrested.
Commonly, it is an hour or more after the initial DUI stop before blood, breath or urine testing is given to the suspect at the police station.
Lets assume that the result is .10%. If the suspect has continued to absorb alcohol since he or she was stopped, their BAC at the time they were driving was maybe .07%.
In other words, the test result shows a blood-alcohol concentration above the legal limit, but his or her actual BAC at the time of driving was below the legal limit.
What is "mouth alcohol"?
"Mouth alcohol" refers to the existence of any alcohol in the mouth or esophagus. If this is present during a breath test, then the results will be falsely high.
This because the breath machine assumes that the breath is from the lungs; for complex physiological reasons, its internal computer multiplies the amount of alcohol by a factor of 2100.
Thus, even a tiny amount of alcohol breathed directly into the machine from the mouth or throat can have a huge impact. Mouth alcohol can be casued in many ways. Belching, burping, hiccuping or vomiting within 20 minutes of taking the test can bring vapor from alcoholic bvereages still in the stomach up into the mouth and throat.
Taking a breath freshener can send a machine's reading way up (such products as Binaca and Listerine have alcohol in them); cough syrups and other products also contain alcohol.
Dental bridges and dental caps can trap alcohol. Blood in the mouth from an injury is yet another source of inaccurate breath test results.
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