1-800-Kick-DUI

DUI Attorney

2012-02-01T01:51:00.001-08:00

The first person that you shouldspeak to if you have been arrested for DUI is an experienced DUI attorney. ADUI attorney can review the circumstances of your DUI arrest and advise you ofyour options.

Do not conceal anything from yourDUI attorney. Likewise do not provide your DUI attorney with incorrectinformation. Remember the DUI attorney is working for you and not against you.Anything that you disclose to your DUI attorney will be protected by attorneyclient privilege and will not be used to convict you.

The DUI attorney will want toknow the basis on which the DUI case against you has been filed. You shouldprovide copies of the case papers to the attorney. If you do not have the casepapers with you, inform the attorney so that he or she can arrange to have themcollected from the prosecutor’s office.

When you are choosing a DUI attorney,one of the most important things is to ensure that you and the DUI attorney canhave a working relationship. You do not want to be in a situation where justbefore your case goes to trial, you and your DUI attorney don’t even see eye toeye.

If you are unable to afford a DUI attorney on your own, the court will assign a public defender to your case.While using the services of a public defender may appear less costly, it hasits own disadvantages. Often the public defender is overloaded with cases. Someof them do not want to get on the wrong side of a judge since they will beappearing in the same court again and again. So they tend to avoid argumentswhich though valid can displease the judge.

Cross Examining the Arresting Officer

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If you enter a plea of notguilty, you can cross examine the officer who arrested you. You should use thisopportunity to create holes in the officer’s testimony. The officer’s testimonyalong with the results of the breath analyzer test will be the main evidenceagainst you.

Cross examination of thearresting officer provides you an opportunity question any part of theofficer's testimony. One purpose of cross-examination is to discredit thattestimony by uncovering errors, omissions, contradictions, inconsistencies, ordubious assumptions.

Questions asked during a crossexamination are generally close ended often limiting the officer to a one ortwo work response. Goals of cross examination include acquisition of additionalinformation that may be helpful to one’s case. However cross examination isoften conducted with the goal of reducing the credibility of the officer andhis or her testimony.

The result of the breath analyzertest will be one of the main evidence against you. During the cross examinationyou should question the officer about his or her training in administering thebreath analyzer test. If the officer isn’t properly trained to administer thetest, the tests cannot be said to be accurate. Similarly you should questionthe officer about the maintenance and calibration of the breath analyzer. Poormaintaining or improper calibration can affect the results of a breath analyzertest.

If you manage to demolish thecredibility of the arresting officer’s testimony, you would have createdsufficient doubts for the case against you to be thrown out.

Testifying in a DUI Trial

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At your DUI trial, you cantestify in support of your defense. However how you conduct yourself during thetestimony can play a great role in influencing the court.

Appearances are very important.You do not want to turn up in court looking like a drunkard. You are fighting aDUI charge and the last thing you want is the judge to think you have adrinking problem.

Dress appropriately for theoccasion. You should wear a formal dress or a business suit. Avoid t-shirts andanything that is too flashy and makes you stand out in the court. Women shouldavoid wearing revealing clothes. Any dress with some message written across itshould be avoided. You are in a court room and not a political rally.

Be seated next to your attorney.The officer who arrested you may be present in the court room. It is best youavoid him or her. If you happen to come face to face with the officer, a politehello or hi should suffice. Don’t shout, taunt or make angry gestures at theofficer. It can get you in trouble – you will have to fight other chargesbesides the DUI charge.

If the officer is testifying, donot interrupt. If you believe there are mistakes in his or her testimony,inform your attorney. Your attorney will deal with it at the appropriate stage.

When it’s your turn to testify,wait for the questioning attorney to complete the question before you answer.If you are unsure about the question, ask the attorney to repeat the question.Lastly if you believe that by answering a question, you will be incriminationyourself, you can exercise your right to remain silent.

How a DUI Conviction Can Affect Your Future

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A DUI conviction can affect yourfuture in many ways. If you are subsequently convicted for another crime, yourDUI conviction can result in you being punished with an enhanced sentence. Inour criminal justice system, a personal prior record plays an important role insentencing.

A DUI conviction will remain onyour record. It will not go away after a few years. It will remain with you forlife. When you apply for a job, your employer will do a background check onyou. The employer will be less inclined to employ you even if you are the bestcandidate. No employer would want an employee to turn up for work completelydrunk.

A DUI conviction can also affectyour search for a home. Landlords generally conduct a background check beforeletting a tenant move in. If you have a DUI conviction, the landlord will be reluctantto enter into a lease or rental agreement with you. Many landlords consider aperson with a DUI record as potentially troublesome. No landlord would want asituation where one tenant gets drunk and disturbs or harms other tenants anddamages the property.

One of the most effective ways ofdealing with this problem is to have your DUI conviction expunged. Some statesallow a person to legally erase a conviction record. If the conviction isexpunged, it will not appear in a background check and you need not disclose toconviction to anyone.

Felony v. Misdemeanor

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A DUI offense is a generallyconsidered a misdemeanor offense. A second DUI offense is also a misdemeanoroffense in most states. In a few states a third DUI offense is a felonyoffense.

A first DUI offense can be triedas a felony offense if there are aggravating circumstances present at the timeof the DUI stop. The presence of a minor in the vehicle at the time of the DUIstop or reckless driving combined with DUI are some examples of aggravatingcircumstances. An abnormally high blood alcohol concentration is alsoaggravating factor that can result in the person being charged with felony DUI.

If you have been charged withfelony DUI, contact an experienced DUI attorney immediately. The consequencesof conviction for felony DUI are far more severe than a general DUI offense.

If convicted for a felonyoffense, the jail term will be more than one year. A felony offense bydefinition is an offense punishable with a jail term exceeding one year.

You will have a felony convictionon your record. This can have terrible social consequences. You will havedifficulty finding a job. Some jobs are out of bounds for felony convicts.Similarly landlords will be reluctant to have you as a tenant. You may looseyour right to vote in some states while in others there may be restrictions onyour right to own a firearm.

Random Stopping for DUI

2012-01-05T06:27:00.001-08:00

An approach to finding impaireddrivers is random stopping and assessment of every driver using the road attimes and locations where drinking and driving is common. In this procedure,drivers are stopped at random and the officer conducts a brief interview at thedriver's window to determine whether there is evidence of drinking. If suchevidence is detected, the driver is invited out of the vehicle for furtherobservation.

In the USA, the Fourth Amendment to the USConstitution precludes random stopping except in structured checkpointoperations. However, even in such operations, the Fourth Amendment is currentlyinterpreted as precluding mandatory breath testing of all individuals stopped.Therefore, a behavioral element is a part of the decision-making process atAmerican checkpoint operations.

The first step in the measurementprocess involves a brief interview of the driver in his/her vehicle, duringwhich an officer makes an initial determination as to whether the driver islikely to be impaired. Once an initial determination has been made that thedriver may be impaired through an interview at the driver's window, the officerwill ask the driver to take a few field sobriety tests. For decades, policehave used a variety of performance tests to assess the degree of impairment fordrivers suspected of alcohol-impaired driving. The admissibility of these testsas evidence relied entirely upon court acceptance of their validity as indicesof inability to drive safely.

DUI Stops and Penalties

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As a rule, a car stop is allowedonly if the officer has a good reason to believe the driver is committing atraffic offense or some other criminal act. For example, a driver can only bepulled over if the officer sees the car speeding or drifting in and out of alane of traffic. If the officer believes the driver is intoxicated after askingsome questions, observing the driver's movements, and perhaps detecting alcoholon his or her breath, an arrest can be made on the theory of probable cause.

The person can be jailed for a DUI conviction. In most states, however,an adult's first DUI conviction usually involves a stiff fine, a licensesuspension, mandatory attendance at a DUI rehabilitation course, and probationfor up to three years.

For a second offense, an adult willoften go to jail. Furthermore, his or her vehicle might be impounded, acommunity service obligation might also be imposed, and attendance at a seriesof Alcoholics Anonymous meetings might be ordered. For a minor, theconsequences are similar, although confinement in an institution is uncommonunless the minor is a "recidivist" -- a repeat offender. In recentyears states have adopted "zero-tolerance" policies towardintoxicated teen drivers. Their legislatures have established lower BAC limitsfor persons under age 21 -- usually 0.02 percent.

Driving a moped and riding a bicycle while intoxicated are alsopunishable offenses. You can't legally ride a horse while intoxicated either.

Steps in Determining DUI

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First, police officers aretrained to recognize physical signs of inebriation in a driver or otherindividual. Among these indicators are slurred speech, alcohol breath, aflushed face, failing to comprehend the officer's questions, staggering whenexiting a vehicle, and leaning on the vehicle for support.

Next, the police are able to put aDUI suspect through certain "field sobriety tests" after a stop. Theymight ask a suspect to attempt to walk steadily along a straight line, recitethe ABCs, stand on one leg, or perform other basic actions requiring balanceand coordination. A bad performance suggests intoxication and will usuallyresult in the suspect's arrest.

Lastly, a driver is said to beintoxicated if his or her blood alcohol content, or BAC, is at or above 0.08percent. A person with a BAC of 0.08 percent has 0.08 grams of alcohol per 100milliliters of blood. A chemical test establishes an individual's BAC. With a"breathalyzer test" the DUI suspect is required to blow deeply into abreathalyzer machine, or "drunkometer." Usually the test isadministered at the police station -to both adults and teens.

In every state a DUI suspect givesimplied consent to be chemical-tested. This includes minors. The suspectdoesn't have the right to consult an attorney before taking a chemical test. Ifhe or she requests one, the police won't wait for the attorney to appear beforerunning the tests.

Revocation of Probation

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If you are convicted for DUI andit is your first offense you may be eligible for probation. In many states youwill be eligible for probation if you do not have a criminal record. If you areon probation, you must follow the conditions of your probation.

The judge may require you to payfor and install an ignition interlock device on your vehicle as part of theprobation. If this device detects alcohol in your breath, it will not allow thevehicle to start. Unless a judge revokes a probation, you must complete thefull term of the probation. There is no good time credit for probation.

If you violate any conditions ofthe probation, the prosecutor may file a motion to revoke the probation. Themotion sets out the specific condition that you have violated. The judge whooriginal sentenced you will hear the motion and can issue an arrest warrant ifappropriate. Arrested probation violators can be jailed without bond until ahearing.

At the hearing for revocation ofyour probation, the prosecutor must prove a violation of a condition by apreponderance of evidence. This standard is easier to meet than the normalproof beyond reasonable doubt requirement.

You will have the right to alawyer and to call and cross examine witnesses. Generally there is no jurytrial for revocation of probation hearings. The judge can leave on youprobation, revoke the probation or add any new conditions from those allowablefor the original DUI probation.

Penalties for DUI

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The penalties for DUI aredetermined by the state law. In all states a first DUI offense is amisdemeanor. A misdemeanor offense is generally punishable by fine. The maximumterm of imprisonment for a misdemeanor offense is one year. However a first DUIoffense can be tried as a felony offense is there are aggravating factorspresent at the time of the offense such as reckless driving, bodily injury,property damage or presence of a minor in the vehicle. A felony DUI offense ispunishable with a jail term exceeding one year.

Repeat DUI offenders can beordered to pay for an install an ignition interlock device in their vehicle.This device works like a breath analyzer. Before the driver can start thevehicle, he or she must breathe into the device. If the device detects anytrace of alcohol in the driver’s breath, the vehicle will not start. In somestates, the device will prevent the vehicle from starting if the blood alcoholconcentration is over a predetermined level often 0.02 percent.

In some states, a repeatoffender’s vehicle can be impounded. Depending on the state law, thisimpounding can be temporary or permanent. This can cause severe problems if youare using the vehicle to get to work and you do not have the financialresources to buy a new vehicle. In many states if the DUI offense resulted inan accident, the vehicle may be impounded and sold to pay compensation to theaccident victims.

One Leg Stand

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The one leg stand is aimed atdividing the driver’s attention. He has to perform the test and listen to theinstructions from the police officer. The driver must hold one leg six inchesoff the ground while pointing his toe forward. The driver must keep his handsby his side and stare at his foot. The officer will then ask him to count outloud. He must stop when the officer instructs him to stop.

While the driver is performingthe one leg stand, the police officer will look for four clues of intoxication.If the officer finds two clues of intoxication, the officer will generallyproceed to arrest the driver for DUI.

The one leg stand test has itsown drawbacks. First of all, a normal person does not stand on one leg with hisarms by his side. For many drivers it is probably the first time in their lifethey are attempting something like that. Many of them trip and fall. This isall that the officer will be looking for. He is not going to consider that itis for the first time in your life that you have attempted the one leg stand.

Persons who are suffering from leg pain or othermedical conditions that prevent them from putting too much stress on one legwill generally have no chance of passing the one leg stand. Older persons toowill find it difficult to pass the one leg stand.

Dealing With a DUI Arrest

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If you have been stopped for DUI,never run away from the scene. You will make the situation worse. Your bestoption is to remain calm.

While you can refuse the fieldsobriety and breath analyzer tests, a refusal will only give the officer probablecause to arrest you. When a police officer stops a driver under suspicion ofDUI, he has more or less made up his mind to arrest the driver for DUI. Thechances of the officer accepting the fact that you are not drunk is extremelyrare.

Just do the tests but remainsilent. Do not speak to the police officers or argue with them at the DUI stopor at the police station. The police are only interested in getting aconviction and will use whatever you say as evidence against you.

You should pay attention to whatthe officer does from the moment he stops you until you are taken to the policestation and placed under arrest. Police officers must follow certain procedureswhile stopping a driver on the suspicion of DUI, administering the tests andwhile making the arrest.

At the police station, ask thatyou be allowed to speak to your attorney. Inform the attorney the entiresequence of events and the attorney will develop a defense strategy based onthe information you provide.

Walk and Turn Test

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The walk and turn test uses the driver’sinability to process information mentally and to his body to perform theinstructions given by the officer as an indication of intoxication. Generallythe officer will ask the suspect driver to place his left foot on a line (oftenan imaginary line) and walk heel to toe for nine steps while keeping his handsdown at the side.

The police officer must first demonstrate how toperform the test. Generally the officer will first instruct the driver to standin a heel to toe position. The officer will demonstrate how to perform the testonly when the driver is standing in a heel to toe position. So the testactually begins even before the driver receives instructions on what to do toperform the test.

Majority of the driver’s fail this test. Thereason for failure is simple. We as human beings do not walk heel to toe. Manydrivers will be walking heel to toe for the first time in their life.

Age and medical condition of a person can affect a person’s ability toperform this test. However the age and medical condition will have no bearingon how the officer views the driver’s performance of the walk and turn test.All that the officer will be interested is one mistake on the part of thedriver.

DUI and Accident

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A first DUI offense is a misdemeanor offense inall states. In most states a second and third DUI offense is also a misdemeanoroffense. If convicted for a misdemeanor, the maximum jail term is one year.

Generally if you are convicted for DUI, themaximum jail term you could face is one year. However if you are convicted of afelony DUI, you could be jailed for more than one year.

A DUI offense can become a felony offence undercertain circumstances. If you cause an accident that causes injury, death orproperty damages, you will be charged with felony DUI.

Never take a felony DUI lightly. Besides thelengthy jail term, a felony DUI conviction brings with it a host of otherproblems. In many states, convicted felons are not allowed to vote. In somestates, a convicted felon cannot posses guns or fire arms.

The police must prove that youwere driving under the influence, i.e. you were operating the vehicle when yourblood alcohol content was over the legal limit and that driving under the influenceis the cause of the accident. There are many defenses available for a drunkdriving accident charge. Sometimes the accident may have been caused by factorsother than the intoxication.

Drawbacks of Standardized Field Sobriety Tests

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When a police officer stops avehicle for DUI, he will instruct the driver to perform the standardized fieldsobriety tests. The results of these tests will be used as evidence against thedriver.

The results of the standardized field sobrietytests are not fool proof. These tests are based on the fact that if a personfails these tests, then he or she is intoxicated. These tests involvecoordination and balance.

The standardized field sobriety tests are basedon the footing that only intoxicated individuals lack coordination and balance.There is not direct relationship between a person’s lack of coordination orbalance and intoxication. A person could lack coordination or balance becauseof a medical condition or fatigue. A person may fail the standardized fieldsobriety test for many reasons including fatigue, medical condition,drowsiness, nervousness, old age and obesity.

The standardized field sobriety tests are highlysubjective. The police officer administering the test is the person who decidesthe outcome. The officer is only interested in showing an arrest. He or shewill not be interested in knowing why you failed the field sobriety test. Asfar as he or she is concerned, you failed the tests and so you are intoxicated.

Second DUI and Jail

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DUI laws provide for jail terms, fines, mandatory alcohol education programs and license suspension. The first DUI offense is a misdemeanor crime in all states. Generally if it is your first DUI offense, then you will be allowed to go after you pay a fine.

A second DUI offense is a misdemeanor crime in most states but if convicted, you can be sent to jail. The jail term extends from a few days to 1 year. You will also have to pay a fine that can be as high as $5000. Your driver’s license can be suspended. The period of suspension can extend to 2 years. Your vehicle can be impounded for the term of your license suspension. You will also have to do community service for 10 days to 1 year.

The chances of going to jail are higher for a second DUI offense. However it is not mandatory. The presence of aggravating circumstances will play an important role in determining whether you will be sent to jail for a second DUI offense.

If you are charged with reckless driving along with DUI, then you are likely to be sent to jail. If your DUI offense causes an accident that result in death or disfigurement, then you will be charged with a felony and if convicted you will be sent to jail. You will be sent to jail even if it is your first time DUI offense.

DUI and Insurance Rates

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A DUI is a serious criminal offense. A DUI conviction can affect your life in many ways. You may have to spend time in prison. You may also have to pay hefty fines, undergo counseling and do community service.

There is another serious consequence of a DUI conviction. It can shoot your insurance rates through the roof. Insurance is based on risk. Most insurance companies view drivers with a DUI conviction as high risk.

You cannot hide a DUI conviction from your insurance company. In many states, if you have been charged with DUI, you will have to get a form signed by your insurance company. Even if you are in a state that does not require this form, a DUI conviction will appear on your record. When you renew your insurance policy, the insurance company will conduct a background check and when your DUI conviction shows up your rates will increase.

You cannot prevent the increase in insurance rates by changing your insurance company. Every insurance company conducts a background check on new customers before issuing a policy.

Some insurance companies will terminate your policy the moment you are convicted for DUI. You cannot drive an automobile without valid insurance. It is illegal.

DUI and Community Service

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DUI or drunk driving is a serious criminal offense with serious consequences. Once arrested for DUI, the offender will be produced in court for sentencing.

Most of the (first offender) "mandatory" jail statutes give courts the option of imposing community service in lieu of or in addition to jail; Colorado, Oregon, Utah, and Connecticut to name a few. Many states have legislation requiring jail or alternative sanctions (usually community service) for the first offender. A few states, such as Florida, make community service a mandatory, though not necessarily exclusive, disposition.

Because most first offender "drunk drivers are classified as low-risk, non-violent offenders who have no prior criminal history," many correctional authorities consider community service or other jail alternatives to be the most appropriate sentence for this group.

Community service is a popular option in restorative justice programs, especially when the crime had no individual or organizational victim per se. Community service programs provide the offender with an opportunity to pay back the community for the misdeeds.

Community service may take the form of teaching, for example the person may have to lecture high school students about the dangers of drunk driving or labor – cleaning the roads or service – providing assistance at a shelter or soup kitchen.

Dram Shop Laws

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When a person contributes to the injuries caused by a drunk driver in some active way, such as providing him with the alcohol, liability for negligence may readily be imposed on that person. The liability is based on affirmative negligent conduct or misfeasance.

In the United States, if a person provides alcohol to an already intoxicated person and that person goes on to cause an accident, the alcohol server will be liable for the accident. Some states have dram shop statutes that hold liquor sellers liable under certain circumstances. Others recognize a duty of reasonable care that can hold both liquor sellers and social providers of alcohol liable for alcohol-induced injuries.

In a few states liquor-provider liability is limited to grossly negligent conduct on the part of the provider. In several others a rule has developed as follows: One can be liable for injuries that result from having provided liquor to a minor, because doing so is a misdemeanor in most states and is in any event generally regarded as wrongful. In the cases of injuries to or by an adult drunk driver, one cannot be liable for having provided the liquor, but there remains the possibility of liability for affirmative acts over and above providing the liquor, such as ejecting a helplessly intoxicated customer from a tavern or 'jump-starting' the automobile of an obviously liquor-impaired man to enable him to try to drive home.

Temporary Driving Permit

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If you are stopped for DUI and you fail the breath analyzer test, your driver’s license can be suspended. The suspension of your driver’s license is an administrative process and does not involve the courts. Since it is an administrative process, courts will generally not intervene in the process to prevent the suspension of your driver’s license.

In most states, there will be a hearing before the administrative suspension of your driver’s license for DUI. This hearing will be conducted by an officer of the Department of Motor Vehicles. You can attend the administrative hearing and argue why your driver’s license should not be suspended. Based on your state laws, there may be defenses available to fight an administrative license suspension.

If you driver’s license is suspended, all is not lost. Most states have laws that allow for temporary driving permits. To get a temporary driving permit, you must demonstrate that not being allowed to drive will cause undue hardship to you, for example it will not be possible for you to get to work and if you are not able to get to work, you will loose your job and that will cause a lot of financial problems for you.

Field Sobriety Tests

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Police officers look for certain reactions such as involuntary movements of the eyeball or the ability to maintain balance when administering the field sobriety tests. However an involuntary movement of the eye does not necessarily mean intoxication.

It is not just intoxication that can cause involuntary movements of the eye but also fatigue, allergies and other medical conditions. The officers will also look at your ability to maintain balance while performing some of the field sobriety tests.

The age and physical condition of a person can affect the person’s ability to maintain balance. If the road is slippery, it is likely that the person will slip and fall while trying to maintain his balance during the field sobriety tests giving the officers probable cause to subject him to a breath analyzer test.

If you have been asked to take a field sobriety test, you can refuse to do so. You must exercise this right especially if you believe there are certain factors present that could result in you failing the field sobriety tests.

Expunging Your DUI Conviction

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Never to attempt to fight the DUI charges by yourself. You will end up being convicted. A conviction will cause a lot of problems for you. You can be sent to jail or made to pay fines. You will also have a criminal record that will show up on your record each time someone does a background check on you.

You can expunge your DUI conviction. Once the DUI conviction is expunged from your record, for all practical purposes it will be like the conviction never happened.

There are many procedures associated with the expungment of your DUI conviction. Attempting to expunge your DUI conviction record on your own can prove costly. Seek the assistance of an experienced DUI attorney.

Merely by submitting the application or petition for expungement, your DUI conviction record will not be expunged. Sometimes the police might oppose the expungment. You will then have to appear in court and deal with the opposition.

Fighting Your DUI Case

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You can challenge the field sobriety test results in the court. There is no scientific evidence for the accuracy of the results of such sobriety tests. People who are overweight or suffer from some medical problems or fatigued will most likely fail the sobriety tests.

The police must follow certain procedures when they stop and arrest you for DUI. The charges against you can be dropped if the police fail to follow these procedures. You can highlight the lapses in the procedure followed by the police while stopping you, while administering the filed sobriety tests and breath analyzer tests, while arresting you and while administering the blood test.

The police must prove their case. If you find loopholes and lapses in the prosecution’s case, the charges against you will be dropped. You need not prove your innocence. It is for the police to prove that you are guilty as charged. The police must prove the charges against you and they must prove it beyond reasonable doubt.

Breath Analyzer Tests

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If you are pulled over on the suspicion of drunk driving, the police officer will generally administer a series of field sobriety tests. You can refuse the field sobriety tests. These are optional.

A breath analyzer test is not optional. You should not refuse a breath analyzer test. Refusing a breath analyzer test can result in the administrative suspension of your driver’s license in some states. It will also give the police officer probable cause to subject you to a blood test.

The maintenance of the breath analyzer equipment can affect the results of the test. You can ask the police to produce the maintenance records in the court. The police must follow the manufacturer’s guidelines during the maintenance. Any deviation from the manufacturer’s guidelines will affect the results.

Your health can also affect the results of a breath analyzer test. If you have a breathing ailment, then you may have problems in breathing into the equipment resulting in an inaccurate reading.

Talking to the Police

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How you react after your arrest can affect the outcome of your DUI case. If you have been arrested for DUI, remain calm and get in touch with an experienced DUI attorney immediately.

If you have been arrested for DUI, you have certain constitutional rights. You have the right to remain silent when the police question you. You should exercise this right and never answer any questions put forth by the police after they arrest you without speaking to your DUI attorney.

If you answer the questions, the police will use the answers against you in the court of law. The law requires the police to read out your Miranda rights immediately on your arrest before they can question you.

If the police question you without reading out your Miranda rights, then it is unconstitutional and the answers cannot be used against you. The answers will be excluded from the evidence against you.