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DUI: What to Expect

By: Paula Lennon

Takeaway: Driving under the influence is a serious offense, but it isn’t as cut-and-dried as the law makes it sound.

Driving under the influence (DUI) of alcohol or drugs is a serious driving offense – and a criminal one. In some states, it is called driving while intoxicated (DWI), while in others it’s referred to as operating under the influence (OUI). In all states, if your blood/breath alcohol concentration (BAC) is 0.08% or higher your faculties are deemed to be impaired.

Why was I stopped anyway?

Well, generally you did something to catch the attention of the police. Driving too fast or too slowly, taking a really wide turn, hogging the center lane marker, weaving in and out of lanes, swerving wildly, nearly hitting other vehicles (particularly stationary ones), or just plain appearing to be impaired is cause enough to get you pulled over. These are things that police officers tend to notice. It could also be that someone has seen you leave a bar or party and has reported you to an officer.

If the police have a reasonable suspicion that your driving may be alcohol impaired, they will stop you and investigate. Usually the investigation comes in the form of a standard field sobriety test followed by a blood alcohol test performed using a hand-held breathalyzer unit into which you will breathe deeply.

How can I fight the charge?

In order to be guilty of a DUI offense, it must be shown that:

  1. You were steering and controlling a moving a vehicle, and
  2. You were affected by alcohol or drugs or a combination of both

Of course, these charges aren’t always so cut and dried. When your vehicle is stopped, the officer must have reasonable suspicion that you committed a driving offense. You can’t simply be stopped based on a hunch or gut feeling. If the officer has no reasonable suspicion, you may be able to get the case thrown out of court on the basis that the traffic stop was unreasonable and the evidence obtained as a result of the stop is inadmissible.

The officer’s suspicions may have been raised by your physical appearance, for example, such as a stumbling gait, reddened eyes, dilated pupils, slurred speech or alcoholic breath. In such cases, these symptoms may also be rendered inadmissible if it can be proved that they were caused by medication or mouthwash.

Officers usually claim that it was the driver’s failure of the field sobriety tests that led to the breathalyzer or blood alcohol test. If the sobriety test results were inaccurate because of illness or medication, for example, it may be possible to get them excluded from the evidence.

Some law enforcement agents also use outdated breathalyzer equipment whose readings are unreliable. In such cases, having an expert to testify as to the age, model and reliability of the equipment used to render the breath test could be of use. The same goes for if the officer failed to follow the required procedures for a valid test or failed to use the machine correctly. In essence, your lawyer will be looking to cast reasonable doubt on the accuracy of a breathalyzer test to help in your defense.

Other Ways of Avoiding a DUI Charge

There are other common and useful defenses against a DUI charge. For example, the roadblock or DUI checkpoint may have been mounted illegally. Did the officer read you your Miranda rights when you were arrested? This is something that courts do not like. Was your breath test given voluntarily? In most states it has to be given voluntarily and cannot be coerced from you. Was your drink spiked? You may be able to plead involuntary intoxication. Were you driving under duress? If you were driving because of fear for the life of yourself or another person you may be able to claim the defense of necessity.

Defense attorneys have also used the “rising blood alcohol content” argument successfully in DUI cases. The theory behind the defense is that when the driver got behind the wheel, his or her blood alcohol was below 0.08. During the traffic stop, the BAC continued to rise because alcohol takes time to be absorbed into the blood. By the time of the breath or blood test occurred – up to 20 minutes or so later – the blood alcohol level had risen to 0.08 or higher.

Penalties for DUI

If you are found guilty of DUI your punishment may differ from state to state and from county to county. First offense DUIs are generally treated as misdemeanors in most states. Penalties include fines, driving restrictions, loss of your license, community service, probation or, in some cases, prison time. Part of the punishment for a DUI offense is the legal requirement to attend a DUI education course at a cost of around $500 – an expense payable by the offender.

If you are charged with felony DUI you could end up with a prison sentence. A felony DUI is one in which a person is killed or injured as a result of someone driving under the influence. Repeated DUI charges could also result in a felony charge, even if no one dies or gets injured. You should consult with a lawyer if you have been accused of a felony DUI for which the penalties are much harsher. Your lawyer may be able to plea bargain on your behalf to reduce the charges.

Expungement of the DUI Record

A DUI conviction on your record can hinder your future job prospects if someone runs a background check. It can also prevent you from obtaining credit or renting an apartment. It may be frustrating to realize that having paid the fines, attended the classes and complied with the requirements to reclaim your driving privileges you cannot avoid the shadow of the DUI. What can you do?
You can try to have your DUI conviction expunged from your record. Expungement erases your criminal record so that it is as if it had never existed. If it is expunged you can answer “No” to the question “Have you ever been convicted of a criminal offense?”

Whether you are successful or not depends on the laws of the state in which you were convicted, as these laws differ from state to state. Some states allow expungement if certain conditions have been met. Other states only allow expungement for arrests that do not result in conviction.

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