Alcohol and Drug Safety Guide
What is Considered Driving Under the Influence?
In October 2000, as part of the 2001 Department of Transportation (DOT) Appropriations Act, the United States Congress passed a law making a blood alcohol concentration (BAC) of .08 as the national standard for impaired driving. Any state that did not adopt .08 as the BAC standard by fiscal year 2004 would have a certain portion of their federal highway construction funds withheld.
Each state has its’ own specific term to describe the criminal offense of driving impaired, which includes the following:
• Driving Under the Influence (DUI)
• Driving While Intoxicated (DWI)
• Operating Under the Influence (OUI)
• Operating a Motor Vehicle While Intoxicated (OMVI)
• Operating a Vehicle While Impaired (OVI)
• Driving While Ability Impaired (DWAI)
When a law enforcement officer stops an individual on suspicion of driving under the influence, the officer may test the driver’s motor functions and skills by conducting field sobriety tests. A person can be charged with a per se DUI even if the are under the legal limit of .08.
What Are the Penalties For a DUI Offense?
The penalties for a DUI conviction vary in each state, but they generally include the following:
• License Suspension—Your driver’s license will be suspended for a period of time. This can vary between 30 to 365 days for a first offense. If you have multiple DUI convictions, the state may revoke your license permanently. Some states may restore your driving privileges during the suspension after a period of time.
• Jail Time—You will be required to spend a minimum amount of time in county jail. However, a work release program, community service or house arrest with electronic monitoring may be ordered in lieu of jail time for first-time offenders.
• Fines—The judge will order you to pay fines ranging anywhere from $150 to $5,300 for a first offense. The amount of the fines will substantially increase for additional convictions, a high BAC or if a minor child was in the vehicle at the time.
• License Reinstatement—Each state has a license reinstatement fee that can range anywhere from $40 to $475.
• Ignition Interlock—Some states require first-time offenders to install an ignition interlock device into any vehicle that is registered in their name. The driver must blow into the device before the vehicle will start. Many of these systems also require a retest while driving.
• SR-22 Insurance—You may be required to obtain SR-22 Proof of Financial Responsibility insurance for a period of time.
• Alcohol Education & Treatment—The court may order you to attend a substance abuse educational course, enroll in an alcohol and drug rehabilitation treatment program, submit to a psychological evaluation or attend a victim impact panel.
• Vehicle Impounded—Some states have laws requiring the vehicle to be impounded under certain conditions, such as being charged with an extreme DUI or the driver was under 21 at the time of the DUI arrest. Administrative, towing and storage fees may be imposed.
Additional penalties may be ordered for any of the following reasons:
• A minor child was in the car at the time (specific ages may vary by state law)
• Excessively speeding over the limit
• High BAC level
• Refusing to take a chemical test
• An accident causing property damage, serious bodily injury or death
• The offender was under age 21 at the time
• Prior DUI convictions
Drivers who are convicted of repeat DUI offenses may be charged with a felony resulting in the loss of their civil rights.
How Does an Ignition Interlock Device Work?
An alcohol ignition interlock device is connected to the starter system in the vehicle. The device works by measuring the driver’s BAC level after they blow into the system. If the BAC level registered by the device is higher than the pre-programmed level set by the company, the vehicle will not start. The pre-programmed level is set by the court, but is typically set between .02 percent and .04 percent. While the vehicle is in operation, the device will require breath samples from the driver. If the breath sample is not provided or exceeds the BAC limit that has been set, the system will record the occurrence and issue a warning to the driver. An alarm will then start consisting of the lights flashing and horn honking before the vehicle shuts down. One of the major flaws of an ignition interlock device is that using mouthwash that contains alcohol will cause the machine to register a failure.
What is the Cost of an Ignition Interlock Device?
The costs for installing, calibrating and maintaining the device is the responsibility of the offender. Most companies charge approximately $200 for installation and a monthly fee ranging from $50 to $150. Additional maintenance and calibration fees may be required. Most devices will need to be checked every 60 days. The monthly fee may be subsidized by the state if the offender can prove that they cannot pay for it. After the DUI conviction, the court will provide the offender with a list of state-approved providers.
What Does the Implied Consent Law Mean?
When a person obtains a driver’s license, they are bound by the implied consent laws in that jurisdiction. All 50 states and the District of Columbia have some form of implied consent laws, which means that if you are suspected of DUI, you voluntarily agree to submit to a chemical test to determine your BAC level. Refusing to submit to the test will usually result in an automatic suspension of your driver’s license for a period of time.
What Are the Field Sobriety Tests?
When the police pull someone over for suspicion of DUI, the officer will ask the driver several questions, such as, “Have you been drinking” or “How much have you had to drink”? Even if you admit to drinking, the officer can only request that you perform field sobriety tests if there is evidence of intoxication, such as:
• A strong smell of alcohol on the person’s breath or clothing
• The person is slurring their words while speaking
• The driver cannot find his or her driver’s license, vehicle registration or proof of insurance
• Bloodshot or watery eyes
• Empty containers, such as beer cans or bottles of alcohol
The officer may ask the driver to complete several different field sobriety tests to determine the level of intoxication. Failing the field sobriety tests gives the officer probable cause to request a blood, breath or urine test.
Standardized Field Sobriety Tests
The National Highway Transportation Safety Administration (NHTSA) has issued a standardized model for field sobriety tests, which include:
• Horizontal Gaze Nystagmus Test (officer is looking for an involuntary jerking of the pupil)
• Walk and Turn Test (heel to toe, take nine steps in a straight line, make a military pivot and come back)
• One-Legged Stand Test (stand on one leg, arms at side for up to 30 seconds)
Accuracy of Standardized Field Sobriety Tests
According to the NHTSA, the laboratory test data determined that:
• The Horizontal Gaze Nystagmus test is 77 percent accurate
• The Walk and Turn Test is 68 percent accurate
• The One-Legged Stand Test is 65 percent accurate
• The Horizontal Gaze Nystagmus and Walk and Turn Test together are 80 percent accurate
Non-Standardized Field Sobriety Tests
Not all states or local law enforcement agencies follow the standardized model, and they may conduct alternative tests, which include:
• Rhomberg balance test (feet together, head back and eyes closed for 30 seconds)
• Finger-to-nose test
• Finger-to-thumb test
• Recite a portion of the alphabet
• Count backwards
A criminal defense attorney may call the validity of these non-standardized tests into question.
Do I Have to Take the Field Sobriety Tests?
In most states, you are not required by law to take the field sobriety tests and police officers rarely tell you this. If you refuse, the officer may have probable cause to place you under arrest for suspicion of DUI. Many criminal defense attorneys advise their clients not to take these tests because there are many factors that can cause you to fail these tests, which may include the following:
• Physical impairment or injury
• Being overweight
• Wearing uncomfortable or high heeled shoes
• Being elderly
• Being nervous
• Being intimidated
• Being distracted by traffic that is going by
• Weather conditions
• Uneven road surface
The best advice is to politely refuse to take the field sobriety tests since they are voluntary in most jurisdictions.
What Are Miranda Rights and How Do They Pertain to a DUI Arrest?
The police are required by law to read a criminal suspect the Miranda warning advising them of their rights once they have been arrested. The Miranda warning usually includes the following language:
“You have the right to remain silent. If you give up the right to remain silent, anything you say can and will be used against you in a court of law. You have the right to an attorney and to have them present during questioning. If you wish to have an attorney and cannot afford one, one will be appointed for you at no cost. Do you understand these rights that have been read to you?”
The police cannot interrogate or question a suspect if they are in police custody or under arrest unless they have issued the Miranda warning. If you have been arrested and not been read your rights, any statement you make while in police custody is inadmissible in court. You should never voluntarily speak with police until you have legal counsel present. The minute you request an attorney, the police are required by law to stop the interrogation.
Changes to Miranda Law
On June 1, 2010, the United States Supreme Court ruled in the case of Berghuis v. Thompkins that a criminal defendant who has been read their Miranda right must explicitly state that they wish to remain silent before being questioned by police. Suspects who speak to police prior to the Miranda warning will be seen as waiving their rights. Once you have been arrested and read your rights, you can say, “I wish to invoke my right to remain silent and I do not want to talk with the police”.
What is a Preliminary Breath Test?
A preliminary breath test (PBT) is considered a field sobriety test. The purpose of this test is to determine if the officer has probable cause to make a DUI arrest. The officer may ask you to blow into a small hand-held breath testing device. This is a voluntary test in most jurisdictions and you should refuse to take it. However, upon your refusal, the officer can place you under arrest and take you to the police station where you will be required to submit to a formal chemical test of your breath, blood or urine.
Why Are Portable Breath Machines Unreliable?
Most portable breath machines are unreliable because they measure the amount of alcohol in the individual’s breath rather than the actual BAC level. Errors can occur due to:
• Defective equipment
• Improper calibration (most hand-held devices require calibration every six months)
• Test was improperly administered by the officer
• False readings due to medical conditions, such as acid reflux disease or diabetes
• False positive due to using mouthwash containing alcohol
Individuals who regularly work with certain types of chemicals, such as cleaning fluids or paint removers may also have a false positive result.
When Must I Submit to a Chemical Test?
Once you have been placed under arrest for suspicion of DUI, the laws in each state require you to submit to a formal chemical test of your breath, blood or urine. Some jurisdictions allow the suspect to choose which test they take, while others may not.
The Breath Test
The most common and least invasive test is performed on a Breathalyzer machine, and these are manufactured under a variety of brand names, such as Intoxilyzer. Each device uses a different type of method to estimate the alcohol concentration level. A criminal defense attorney may question the results of these tests because some machines are prone to interference and contamination from other substances. Before the police officer administers the breath test, they must observe the suspect for a period of time (usually 15 to 20 minutes) and watch for signs of burping or vomiting.
The Blood Test
Blood and urine tests are generally administered if you are suspected of driving under the influence of drugs or a combination of both drugs and alcohol. Depending upon where you were arrested, the officer may tell you which test you will be given rather than giving you a choice. However, if you have a serious medical condition, such as hemophilia where your blood does not clot properly, you will be exempt from the blood test and asked to provide a urine sample. Each state has guidelines regarding how and by whom a blood test will be administered. Most laboratories and hospitals must be certified or approved by the state to administer a blood test. In addition, there are laws dictating the approved method of testing and the time limit in which the blood must be drawn.
The Urine Test
A urine sample is considered the least reliable of the chemical tests. In certain states they are only used to detect the presence of drugs. However, urine tests cannot substantially prove when a drug was actually was used. The test can only detect leftover traces of substances that were previously ingested. For example, the active ingredient in marijuana is called THC, which is stored in the fatty tissues of the body. Urine tests can detect the presence of this drug for up to two weeks.
What Happens if I Refuse a Chemical Test?
The law requires police officers to inform the suspect about the penalties for refusing to take a chemical test. The consequences for chemical test refusal could include any or all of the following:
• You may be charged with a separate crime aside from the DUI offense
• Your driving privileges will be suspended or revoked by the Department of Motor Vehicles (DMV)
• The test refusal can be used as evidence against you in a court of law by showing that you had “consciousness of guilt”.
In most states, the Department of Motor Vehicles will automatically suspend your license once they are notified of your DUI arrest. You only have a limited amount of time in which to contest the suspension at an administrative hearing.
What Happens at a DMV Administrative Hearing?
The DMV hearing is an administrative proceeding to determine whether to suspend or revoke your driving privileges. This is separate from the criminal proceeding for the DUI offense. Only certain issues will be addressed at this hearing, which may include the following:
• Did the arresting officer have probable cause to suspect you of DUI?
• Were you operating a motor vehicle with a BAC of .08 or higher at the time of arrest?
• Were you lawfully placed under arrest?
• Was a chemical test properly conducted?
• Did you willfully refuse to take or did you fail to complete a chemical test after being asked by a law enforcement officer?
• Were you advised that your driver’s license would be suspended or revoked for refusing a chemical test?
Most states allow you to be represented by an attorney even though the DMV is not a court of law. These hearings are usually conducted in person at the local DMV office, however some states will schedule a telephone hearing. A face-to-face hearing is more effective because evidence can be submitted directly to the hearing officer. In addition, you may be allowed to have witnesses testify on your behalf.
What Happens if the DMV Suspends My License?
People who have had their license suspended or revoked may apply for limited driving privileges. This allows them to drive only under certain conditions. To be eligible for limited driving privileges, you must be able to meet the following requirements.
• Proof of liability insurance
• Proof of a valid driver’s license at the time of suspension
• You need to drive to or from:
1. Your place of employment
2. Your school
3. Court-ordered community service
4. Court ordered alcohol or drug treatment program
5. For medical treatment for you or a family member
6. Medical
7. Court ordered treatment program
• You only have one license suspension
Since each state has different requirements, you should check with the DMV in your jurisdiction.
What is Considered Driving Under the Influence of Drugs?
A charge of driving under the influence of drugs (DUID) is different than a DUI offense. The criminal penalties are similar, but many states do not allow the DMV to suspend your driving privileges. The jurisdiction of the DMV arises out of violating the “per se” laws. The per se laws in each state make it a crime to operate a motor vehicle with a BAC over the legal limit. Since there are no per se levels established for DUID, the DMV does not have jurisdiction.
In most DUID cases, being under the influence is defined as being unable to operate a motor vehicle in the same manner as a sober person would. The primary question is whether the driver is too impaired to drive safely. The law does not care if the drug is legal, illegal, a prescription medication or an over the counter medication. The only question is whether the legal definition of DUID has been met.
If you have been detained on suspicion of DUI and you passed the preliminary breath test, the officer will suspect you of DUID. Once you have been arrested, most jurisdictions will require you to take a blood or urine test.
How Can a Lawyer Defend the Chemical Test Results?
When applying for an instruction permit or driver’s license, you must do the following:
Before submitting to any type of chemical test, you can ask to speak with an attorney for legal advice.
Challenging the Breath Test Results
There are several ways in which a criminal defense attorney can challenge the breath test results, which may include:
• The test was not administered properly
• The test administrator was not trained properly
• The machine was not maintained properly or calibrated correctly
• The result was affected by the person’s medical condition (diabetes, asthma, acid reflux disease)
• The driver was exposed to chemicals while painting, varnishing or cleaning
For breath test results to be suppressed, the judge must rule that the results are unreliable. There have been numerous scientific reports that the Intoxilyzer 5000 machine becomes unstable when in close proximity to other devices emitting radio waves, such as a police officer’s radio.
Challenging the Blood Test Results
The most common reasons to challenge the blood test results include some of the following:
• Flaws in the blood test kit used, i.e. not sealed or stored at proper temperature
• The sample became tainted
• The sample was improperly labeled
• The test was not administered by a certified individual
• The test results were not examined by an approved hospital or laboratory
• The protocol for chain of custody was not followed
• A swab containing alcohol was used to clean the skin area
• The blood was not drawn within a reasonable amount of time after the arrest
Criminal defense attorneys have also been successful in challenging the method of testing that was done.
Challenging the Urine Test Results
Each state has a set of procedures that must be followed when conducting a urine test. The results may be challenged if law enforcement did not follow the established guidelines. The urine test is the least reliable of the three chemical tests and is primarily used to detect the presence of drugs. However, the test results can be challenged for the following reasons:
• The test cannot specifically determine when a drug was actually used
• The test involves water instead of the person’s blood. Therefore, the result is inflated because the concentration of alcohol in the person’s urine is about 1.33 times the concentration of alcohol in the person’s blood at the same time.
• The lab performing the test was not approved by the state
• A false positive for heroin was triggered by another drug, such as codeine because drug screens tend to confuse similar chemical compounds.
Nearly every state in the nation uses a testing method called “first void”. This describes the method of testing in which the first urine sample is discarded and a second urine sample is used for testing. However, the State of Minnesota does not follow this protocol. The results are inaccurate because the urine tested does not accurately reflect the alcohol concentration in the person’s blood at the time of the alleged offense.
What Are the Zero Tolerance Laws?
All 50 states and the District of Columbia have enacted zero tolerance laws for minors. These laws outline specific penalties for minors who drink and drive. Anyone under the age of 21 who is caught driving with a measureable amount of alcohol in their system will be charged with a DUI offense. In most states the zero tolerance BAC level is .02 percent and the penalties generally include:
• Driver’s license suspension
• Ordered to perform community service
• Fines ranging from $300 to $1,000
• Jail term ranging from 10 days up to 1 year
• Complete a substance abuse program or alcohol evaluation
Some states require an ignition interlock device to be installed in the vehicle for a second DUI offense. The State of Hawaii requires the parents of a minor under 18 to attend an alcohol abuse educational program.
Will My Home State Know About a DUI Offense in Another State?
The Interstate Drive’s License Compact (IDLC) is an agreement made between member states that share information regarding DUI convictions and certain traffic violations. Currently, a total of 45 states and the District of Columbia participate in this agreement. Some states have elected to share information through the Non-Resident Violator Compact or the Registry of Motor Vehicles. Only five states do not currently share information about DUI convictions, which include Georgia, Massachusetts, Michigan, Tennessee and Wisconsin.
How Does the IDLC Work?
Let’s say that you were arrested and charged with a DUI in the State of Washington. The Washington Department of Licensing (DOL) cannot suspend your license because it is the property of another state. However, your home state will be notified of the DUI arrest and they can choose to penalize you if you are convicted of the offense.
Which States Have the Harshest DUI Penalties?
Each state has their own specific laws and penalties for DUI offenses. The states with the harshest DUI penalties include the following:
Arizona
• First-time offenders who are convicted of a DUI offense are required to install an ignition interlock device in their vehicle for a minimum of six months. All non-extreme DUI cases for first-time offenders are no longer given the right to a jury trial. An extreme DUI offense is charged when the person’s BAC was .15 or higher at the time of arrest. Anyone who is arrested for a DUI offense and has a minor under the age of 15 in the vehicle at the time can be charged with an Aggravated DUI, which is a Class 4 felony offense.
Florida
• A first DUI conviction in Florida will result in a driver’s license suspension ranging from six months to one year. The judge can impose a jail term of up to six months or nine months with a BAC of .20 or if a passenger under the age of 17 was in the vehicle at the time. The driver’s vehicle will be impounded for at least ten days.
Georgia
• A first DUI offense in Georgia is considered a misdemeanor crime and will result in a driver’s license suspension for one year. The jail term can range from ten days to one year and the offender must perform at least twenty hours of community service.
Illinois
• As of July 1, 2011, any driver who is involved in an accident in which a serious injury or death occurred must submit to a chemical test. If the driver refuses to submit to chemical testing, their driving privileges will be revoked for a minimum of one year. A first-time DUI conviction will be charged as a Class 4 felony offense if a passenger under 16 suffers bodily harm.
New Mexico
• A first DUI conviction in New Mexico includes being sentenced up to 90 days in jail. The offender must install an ignition interlock device in their vehicle for one year. Additional penalties include performing community service, an alcohol evaluation and completing a DWI educational program.
Each state has its’ own specific term to describe the criminal offense of driving impaired, which includes the following:
• Driving Under the Influence (DUI)
• Driving While Intoxicated (DWI)
• Operating Under the Influence (OUI)
• Operating a Motor Vehicle While Intoxicated (OMVI)
• Operating a Vehicle While Impaired (OVI)
• Driving While Ability Impaired (DWAI)
When a law enforcement officer stops an individual on suspicion of driving under the influence, the officer may test the driver’s motor functions and skills by conducting field sobriety tests. A person can be charged with a per se DUI even if the are under the legal limit of .08.
What Are the Penalties For a DUI Offense?
The penalties for a DUI conviction vary in each state, but they generally include the following:
• License Suspension—Your driver’s license will be suspended for a period of time. This can vary between 30 to 365 days for a first offense. If you have multiple DUI convictions, the state may revoke your license permanently. Some states may restore your driving privileges during the suspension after a period of time.
• Jail Time—You will be required to spend a minimum amount of time in county jail. However, a work release program, community service or house arrest with electronic monitoring may be ordered in lieu of jail time for first-time offenders.
• Fines—The judge will order you to pay fines ranging anywhere from $150 to $5,300 for a first offense. The amount of the fines will substantially increase for additional convictions, a high BAC or if a minor child was in the vehicle at the time.
• License Reinstatement—Each state has a license reinstatement fee that can range anywhere from $40 to $475.
• Ignition Interlock—Some states require first-time offenders to install an ignition interlock device into any vehicle that is registered in their name. The driver must blow into the device before the vehicle will start. Many of these systems also require a retest while driving.
• SR-22 Insurance—You may be required to obtain SR-22 Proof of Financial Responsibility insurance for a period of time.
• Alcohol Education & Treatment—The court may order you to attend a substance abuse educational course, enroll in an alcohol and drug rehabilitation treatment program, submit to a psychological evaluation or attend a victim impact panel.
• Vehicle Impounded—Some states have laws requiring the vehicle to be impounded under certain conditions, such as being charged with an extreme DUI or the driver was under 21 at the time of the DUI arrest. Administrative, towing and storage fees may be imposed.
Additional penalties may be ordered for any of the following reasons:
• A minor child was in the car at the time (specific ages may vary by state law)
• Excessively speeding over the limit
• High BAC level
• Refusing to take a chemical test
• An accident causing property damage, serious bodily injury or death
• The offender was under age 21 at the time
• Prior DUI convictions
Drivers who are convicted of repeat DUI offenses may be charged with a felony resulting in the loss of their civil rights.
How Does an Ignition Interlock Device Work?
An alcohol ignition interlock device is connected to the starter system in the vehicle. The device works by measuring the driver’s BAC level after they blow into the system. If the BAC level registered by the device is higher than the pre-programmed level set by the company, the vehicle will not start. The pre-programmed level is set by the court, but is typically set between .02 percent and .04 percent. While the vehicle is in operation, the device will require breath samples from the driver. If the breath sample is not provided or exceeds the BAC limit that has been set, the system will record the occurrence and issue a warning to the driver. An alarm will then start consisting of the lights flashing and horn honking before the vehicle shuts down. One of the major flaws of an ignition interlock device is that using mouthwash that contains alcohol will cause the machine to register a failure.
What is the Cost of an Ignition Interlock Device?
The costs for installing, calibrating and maintaining the device is the responsibility of the offender. Most companies charge approximately $200 for installation and a monthly fee ranging from $50 to $150. Additional maintenance and calibration fees may be required. Most devices will need to be checked every 60 days. The monthly fee may be subsidized by the state if the offender can prove that they cannot pay for it. After the DUI conviction, the court will provide the offender with a list of state-approved providers.
What Does the Implied Consent Law Mean?
When a person obtains a driver’s license, they are bound by the implied consent laws in that jurisdiction. All 50 states and the District of Columbia have some form of implied consent laws, which means that if you are suspected of DUI, you voluntarily agree to submit to a chemical test to determine your BAC level. Refusing to submit to the test will usually result in an automatic suspension of your driver’s license for a period of time.
What Are the Field Sobriety Tests?
When the police pull someone over for suspicion of DUI, the officer will ask the driver several questions, such as, “Have you been drinking” or “How much have you had to drink”? Even if you admit to drinking, the officer can only request that you perform field sobriety tests if there is evidence of intoxication, such as:
• A strong smell of alcohol on the person’s breath or clothing
• The person is slurring their words while speaking
• The driver cannot find his or her driver’s license, vehicle registration or proof of insurance
• Bloodshot or watery eyes
• Empty containers, such as beer cans or bottles of alcohol
The officer may ask the driver to complete several different field sobriety tests to determine the level of intoxication. Failing the field sobriety tests gives the officer probable cause to request a blood, breath or urine test.
Standardized Field Sobriety Tests
The National Highway Transportation Safety Administration (NHTSA) has issued a standardized model for field sobriety tests, which include:
• Horizontal Gaze Nystagmus Test (officer is looking for an involuntary jerking of the pupil)
• Walk and Turn Test (heel to toe, take nine steps in a straight line, make a military pivot and come back)
• One-Legged Stand Test (stand on one leg, arms at side for up to 30 seconds)
Accuracy of Standardized Field Sobriety Tests
According to the NHTSA, the laboratory test data determined that:
• The Horizontal Gaze Nystagmus test is 77 percent accurate
• The Walk and Turn Test is 68 percent accurate
• The One-Legged Stand Test is 65 percent accurate
• The Horizontal Gaze Nystagmus and Walk and Turn Test together are 80 percent accurate
Non-Standardized Field Sobriety Tests
Not all states or local law enforcement agencies follow the standardized model, and they may conduct alternative tests, which include:
• Rhomberg balance test (feet together, head back and eyes closed for 30 seconds)
• Finger-to-nose test
• Finger-to-thumb test
• Recite a portion of the alphabet
• Count backwards
A criminal defense attorney may call the validity of these non-standardized tests into question.
Do I Have to Take the Field Sobriety Tests?
In most states, you are not required by law to take the field sobriety tests and police officers rarely tell you this. If you refuse, the officer may have probable cause to place you under arrest for suspicion of DUI. Many criminal defense attorneys advise their clients not to take these tests because there are many factors that can cause you to fail these tests, which may include the following:
• Physical impairment or injury
• Being overweight
• Wearing uncomfortable or high heeled shoes
• Being elderly
• Being nervous
• Being intimidated
• Being distracted by traffic that is going by
• Weather conditions
• Uneven road surface
The best advice is to politely refuse to take the field sobriety tests since they are voluntary in most jurisdictions.
What Are Miranda Rights and How Do They Pertain to a DUI Arrest?
The police are required by law to read a criminal suspect the Miranda warning advising them of their rights once they have been arrested. The Miranda warning usually includes the following language:
“You have the right to remain silent. If you give up the right to remain silent, anything you say can and will be used against you in a court of law. You have the right to an attorney and to have them present during questioning. If you wish to have an attorney and cannot afford one, one will be appointed for you at no cost. Do you understand these rights that have been read to you?”
The police cannot interrogate or question a suspect if they are in police custody or under arrest unless they have issued the Miranda warning. If you have been arrested and not been read your rights, any statement you make while in police custody is inadmissible in court. You should never voluntarily speak with police until you have legal counsel present. The minute you request an attorney, the police are required by law to stop the interrogation.
Changes to Miranda Law
On June 1, 2010, the United States Supreme Court ruled in the case of Berghuis v. Thompkins that a criminal defendant who has been read their Miranda right must explicitly state that they wish to remain silent before being questioned by police. Suspects who speak to police prior to the Miranda warning will be seen as waiving their rights. Once you have been arrested and read your rights, you can say, “I wish to invoke my right to remain silent and I do not want to talk with the police”.
What is a Preliminary Breath Test?
A preliminary breath test (PBT) is considered a field sobriety test. The purpose of this test is to determine if the officer has probable cause to make a DUI arrest. The officer may ask you to blow into a small hand-held breath testing device. This is a voluntary test in most jurisdictions and you should refuse to take it. However, upon your refusal, the officer can place you under arrest and take you to the police station where you will be required to submit to a formal chemical test of your breath, blood or urine.
Why Are Portable Breath Machines Unreliable?
Most portable breath machines are unreliable because they measure the amount of alcohol in the individual’s breath rather than the actual BAC level. Errors can occur due to:
• Defective equipment
• Improper calibration (most hand-held devices require calibration every six months)
• Test was improperly administered by the officer
• False readings due to medical conditions, such as acid reflux disease or diabetes
• False positive due to using mouthwash containing alcohol
Individuals who regularly work with certain types of chemicals, such as cleaning fluids or paint removers may also have a false positive result.
When Must I Submit to a Chemical Test?
Once you have been placed under arrest for suspicion of DUI, the laws in each state require you to submit to a formal chemical test of your breath, blood or urine. Some jurisdictions allow the suspect to choose which test they take, while others may not.
The Breath Test
The most common and least invasive test is performed on a Breathalyzer machine, and these are manufactured under a variety of brand names, such as Intoxilyzer. Each device uses a different type of method to estimate the alcohol concentration level. A criminal defense attorney may question the results of these tests because some machines are prone to interference and contamination from other substances. Before the police officer administers the breath test, they must observe the suspect for a period of time (usually 15 to 20 minutes) and watch for signs of burping or vomiting.
The Blood Test
Blood and urine tests are generally administered if you are suspected of driving under the influence of drugs or a combination of both drugs and alcohol. Depending upon where you were arrested, the officer may tell you which test you will be given rather than giving you a choice. However, if you have a serious medical condition, such as hemophilia where your blood does not clot properly, you will be exempt from the blood test and asked to provide a urine sample. Each state has guidelines regarding how and by whom a blood test will be administered. Most laboratories and hospitals must be certified or approved by the state to administer a blood test. In addition, there are laws dictating the approved method of testing and the time limit in which the blood must be drawn.
The Urine Test
A urine sample is considered the least reliable of the chemical tests. In certain states they are only used to detect the presence of drugs. However, urine tests cannot substantially prove when a drug was actually was used. The test can only detect leftover traces of substances that were previously ingested. For example, the active ingredient in marijuana is called THC, which is stored in the fatty tissues of the body. Urine tests can detect the presence of this drug for up to two weeks.
What Happens if I Refuse a Chemical Test?
The law requires police officers to inform the suspect about the penalties for refusing to take a chemical test. The consequences for chemical test refusal could include any or all of the following:
• You may be charged with a separate crime aside from the DUI offense
• Your driving privileges will be suspended or revoked by the Department of Motor Vehicles (DMV)
• The test refusal can be used as evidence against you in a court of law by showing that you had “consciousness of guilt”.
In most states, the Department of Motor Vehicles will automatically suspend your license once they are notified of your DUI arrest. You only have a limited amount of time in which to contest the suspension at an administrative hearing.
What Happens at a DMV Administrative Hearing?
The DMV hearing is an administrative proceeding to determine whether to suspend or revoke your driving privileges. This is separate from the criminal proceeding for the DUI offense. Only certain issues will be addressed at this hearing, which may include the following:
• Did the arresting officer have probable cause to suspect you of DUI?
• Were you operating a motor vehicle with a BAC of .08 or higher at the time of arrest?
• Were you lawfully placed under arrest?
• Was a chemical test properly conducted?
• Did you willfully refuse to take or did you fail to complete a chemical test after being asked by a law enforcement officer?
• Were you advised that your driver’s license would be suspended or revoked for refusing a chemical test?
Most states allow you to be represented by an attorney even though the DMV is not a court of law. These hearings are usually conducted in person at the local DMV office, however some states will schedule a telephone hearing. A face-to-face hearing is more effective because evidence can be submitted directly to the hearing officer. In addition, you may be allowed to have witnesses testify on your behalf.
What Happens if the DMV Suspends My License?
People who have had their license suspended or revoked may apply for limited driving privileges. This allows them to drive only under certain conditions. To be eligible for limited driving privileges, you must be able to meet the following requirements.
• Proof of liability insurance
• Proof of a valid driver’s license at the time of suspension
• You need to drive to or from:
1. Your place of employment
2. Your school
3. Court-ordered community service
4. Court ordered alcohol or drug treatment program
5. For medical treatment for you or a family member
6. Medical
7. Court ordered treatment program
• You only have one license suspension
Since each state has different requirements, you should check with the DMV in your jurisdiction.
What is Considered Driving Under the Influence of Drugs?
A charge of driving under the influence of drugs (DUID) is different than a DUI offense. The criminal penalties are similar, but many states do not allow the DMV to suspend your driving privileges. The jurisdiction of the DMV arises out of violating the “per se” laws. The per se laws in each state make it a crime to operate a motor vehicle with a BAC over the legal limit. Since there are no per se levels established for DUID, the DMV does not have jurisdiction.
In most DUID cases, being under the influence is defined as being unable to operate a motor vehicle in the same manner as a sober person would. The primary question is whether the driver is too impaired to drive safely. The law does not care if the drug is legal, illegal, a prescription medication or an over the counter medication. The only question is whether the legal definition of DUID has been met.
If you have been detained on suspicion of DUI and you passed the preliminary breath test, the officer will suspect you of DUID. Once you have been arrested, most jurisdictions will require you to take a blood or urine test.
How Can a Lawyer Defend the Chemical Test Results?
When applying for an instruction permit or driver’s license, you must do the following:
Before submitting to any type of chemical test, you can ask to speak with an attorney for legal advice.
Challenging the Breath Test Results
There are several ways in which a criminal defense attorney can challenge the breath test results, which may include:
• The test was not administered properly
• The test administrator was not trained properly
• The machine was not maintained properly or calibrated correctly
• The result was affected by the person’s medical condition (diabetes, asthma, acid reflux disease)
• The driver was exposed to chemicals while painting, varnishing or cleaning
For breath test results to be suppressed, the judge must rule that the results are unreliable. There have been numerous scientific reports that the Intoxilyzer 5000 machine becomes unstable when in close proximity to other devices emitting radio waves, such as a police officer’s radio.
Challenging the Blood Test Results
The most common reasons to challenge the blood test results include some of the following:
• Flaws in the blood test kit used, i.e. not sealed or stored at proper temperature
• The sample became tainted
• The sample was improperly labeled
• The test was not administered by a certified individual
• The test results were not examined by an approved hospital or laboratory
• The protocol for chain of custody was not followed
• A swab containing alcohol was used to clean the skin area
• The blood was not drawn within a reasonable amount of time after the arrest
Criminal defense attorneys have also been successful in challenging the method of testing that was done.
Challenging the Urine Test Results
Each state has a set of procedures that must be followed when conducting a urine test. The results may be challenged if law enforcement did not follow the established guidelines. The urine test is the least reliable of the three chemical tests and is primarily used to detect the presence of drugs. However, the test results can be challenged for the following reasons:
• The test cannot specifically determine when a drug was actually used
• The test involves water instead of the person’s blood. Therefore, the result is inflated because the concentration of alcohol in the person’s urine is about 1.33 times the concentration of alcohol in the person’s blood at the same time.
• The lab performing the test was not approved by the state
• A false positive for heroin was triggered by another drug, such as codeine because drug screens tend to confuse similar chemical compounds.
Nearly every state in the nation uses a testing method called “first void”. This describes the method of testing in which the first urine sample is discarded and a second urine sample is used for testing. However, the State of Minnesota does not follow this protocol. The results are inaccurate because the urine tested does not accurately reflect the alcohol concentration in the person’s blood at the time of the alleged offense.
What Are the Zero Tolerance Laws?
All 50 states and the District of Columbia have enacted zero tolerance laws for minors. These laws outline specific penalties for minors who drink and drive. Anyone under the age of 21 who is caught driving with a measureable amount of alcohol in their system will be charged with a DUI offense. In most states the zero tolerance BAC level is .02 percent and the penalties generally include:
• Driver’s license suspension
• Ordered to perform community service
• Fines ranging from $300 to $1,000
• Jail term ranging from 10 days up to 1 year
• Complete a substance abuse program or alcohol evaluation
Some states require an ignition interlock device to be installed in the vehicle for a second DUI offense. The State of Hawaii requires the parents of a minor under 18 to attend an alcohol abuse educational program.
Will My Home State Know About a DUI Offense in Another State?
The Interstate Drive’s License Compact (IDLC) is an agreement made between member states that share information regarding DUI convictions and certain traffic violations. Currently, a total of 45 states and the District of Columbia participate in this agreement. Some states have elected to share information through the Non-Resident Violator Compact or the Registry of Motor Vehicles. Only five states do not currently share information about DUI convictions, which include Georgia, Massachusetts, Michigan, Tennessee and Wisconsin.
How Does the IDLC Work?
Let’s say that you were arrested and charged with a DUI in the State of Washington. The Washington Department of Licensing (DOL) cannot suspend your license because it is the property of another state. However, your home state will be notified of the DUI arrest and they can choose to penalize you if you are convicted of the offense.
Which States Have the Harshest DUI Penalties?
Each state has their own specific laws and penalties for DUI offenses. The states with the harshest DUI penalties include the following:
Arizona
• First-time offenders who are convicted of a DUI offense are required to install an ignition interlock device in their vehicle for a minimum of six months. All non-extreme DUI cases for first-time offenders are no longer given the right to a jury trial. An extreme DUI offense is charged when the person’s BAC was .15 or higher at the time of arrest. Anyone who is arrested for a DUI offense and has a minor under the age of 15 in the vehicle at the time can be charged with an Aggravated DUI, which is a Class 4 felony offense.
Florida
• A first DUI conviction in Florida will result in a driver’s license suspension ranging from six months to one year. The judge can impose a jail term of up to six months or nine months with a BAC of .20 or if a passenger under the age of 17 was in the vehicle at the time. The driver’s vehicle will be impounded for at least ten days.
Georgia
• A first DUI offense in Georgia is considered a misdemeanor crime and will result in a driver’s license suspension for one year. The jail term can range from ten days to one year and the offender must perform at least twenty hours of community service.
Illinois
• As of July 1, 2011, any driver who is involved in an accident in which a serious injury or death occurred must submit to a chemical test. If the driver refuses to submit to chemical testing, their driving privileges will be revoked for a minimum of one year. A first-time DUI conviction will be charged as a Class 4 felony offense if a passenger under 16 suffers bodily harm.
New Mexico
• A first DUI conviction in New Mexico includes being sentenced up to 90 days in jail. The offender must install an ignition interlock device in their vehicle for one year. Additional penalties include performing community service, an alcohol evaluation and completing a DWI educational program.