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In order to completely avoid adverse consequences to your license
as a result of a DUI arrest, including suspension and restriction
you will generally have to prevail in a DMV hearing AND in Court.
It is possible to overturn an administrative ruling or the failure
to request a hearing but the timing of the legal process will generally
not coincide with the administrative process. Even if you eventually
achieve a result in Court, related to the prosecution of your DUI
criminal charges that would set aside an administrative suspension
you may still experience some adverse consequences to your license.
An experienced attorney can often help you to avoid the timing problem.
However you may place yourself at a substantial disadvantage if
you fail to make a timely request for a DMV “Administrative
Per Se Hearing and Stay of Suspension.”
DUI Basics
In every state, it is a crime for a driver to operate a vehicle
while impaired by the effects of alcohol or drugs. The specific
offense may be called driving under the influence (DUI), driving
while intoxicated (DWI), operating under the influence (OUI),
and even operating a motor vehicle intoxicated (OMVI). Whatever
the specific title, DUI laws make it unlawful for a person to
operate a car, truck, motorcycle, or commercial vehicle if:
- The
driver's ability to safely operate the vehicle is impaired by
the effects of alcohol, illegal drugs, prescribed medications
such as painkillers, or even over-the-counter medications such
as antihistamines; or
- The driver is intoxicated at a level above
established DUI standards, such as blood-alcohol concentration
(BAC).
Field Sobriety and Chemical Tests
When a law enforcement officer makes a vehicle stop and suspects
that the driver may be intoxicated, the officer will conduct a "field
sobriety test" on the driver, and may ask for his or her consent
to some form of chemical test for intoxication.
Field sobriety tests usually involve a police officer asking a
driver to perform a number of tasks that assess any impairment
of the person's physical or cognitive ability. Examples of field
sobriety tests include having the driver walk a straight line,
heel to toe; having he or she recite the alphabet backwards; and
the officer's use of the "horizontal gaze nystagmus" (eye and penlight) test.
Chemical tests can be conducted during the
vehicle stop, using
a Breathalyzer that measures a driver's blood-alcohol concentration
(BAC), or at a hospital, where urine and blood tests can be performed.
Many states allow a driver suspected of DUI to choose which type
of chemical test is administered.
Refusing a Chemical Test: "Implied Consent" Laws
All states have "implied consent" laws that require vehicle
drivers to submit to some form of chemical test, such as breath,
blood, or urine testing, if suspected of DUI. The logic behind such
laws is that, by assuming the privilege of driving a vehicle on
state roads and highways, drivers have effectively given their consent
to DUI testing when a police officer reasonably believes the driver
is under the influence of alcohol or drugs.
If a driver refuses
to submit to such testing, implied consent laws carry penalties
such as mandatory suspension of a driver's license, usually for
six months to a year. Often, license sanctions for test refusal
are more harsh than those imposed after DUI test failure. In most
states a driver's refusal to submit to a chemical test may be used
to enhance the penalties imposed if he or she is eventually convicted
for DUI.
"Per Se" and "Zero Tolerance" DUI Laws
All states have DUI laws that deem "per se intoxicated"
any driver with a blood-alcohol concentration (BAC) above a set
limit. In states like California and New York, this means that drivers
with a BAC at or above .08 are intoxicated in the eyes of the law,
and no additional proof of driving impairment is necessary.
All states also carry "zero tolerance" laws that target
drivers under the legal drinking age. These laws penalize persons
under 21 for operating a vehicle with any trace of alcohol in their
systems (a BAC above 0.0), or with negligible BAC levels such as
.01 or .02.
Keep in mind that a driver may still be arrested and convicted
for DUI without proof of "per se" intoxication, when other
evidence of impaired driving is shown. For example, a driver with
a .06 BAC level can be found guilty of DUI if an arresting law enforcement
officer testifies that he observed the driver's vehicle swerving
badly, and that the driver exhibited both slurred speech and severe
inattention during questioning after a vehicle stop.
DUI Convictions: Criminal Penalties
A DUI conviction may carry criminal penalties including fines,
jail time, probation, and community service. Some state laws impose
certain minimum penalties for first-time
offenses, then designate
increased penalties for each offense thereafter. Severity of criminal
penalties will vary according to the circumstances of the offense,
including:
- Whether the driver has a history of DUI violations;
- Whether
the driver was operating a commercial vehicle at the time of
the DUI;
- Whether the DUI violation involved excessive
speeding;
- Whether the DUI violation involved excessive
blood alcohol level;
- Whether the DUI violation occurred while
there was a child in the vehicle;
- Whether the DUI violation occurred
simultaneously with another dangerous moving violation,
such as reckless driving;
- Whether the DUI violation involved a car
accident in which property damage occurred;
- Whether the DUI violation
involved a car accident in which another person was injured
or killed; and
- Whether the driver was under the legal drinking
age at the time of the DUI violation.
DUI Arrest and Conviction: Driving Privilege
Penalties
In addition to potential criminal penalties, a DUI arrest or conviction
will have an immediate negative impact on driving privileges.
Most state laws allow a motor vehicle department to immediately
suspend the driver's license of any person operating a vehicle
with a BAC above the state limit for intoxication, or any driver
who refuses to submit to BAC testing. The driver's vehicle may
also be confiscated or impounded, and the DUI offender will likely
incur significant administrative costs. This loss of driving privileges
can normally occur even before a DUI conviction. Most states allow
a DUI arrestee to obtain a temporary license and request an administrative
hearing at which he or she may argue against license suspension,
or for restoration of limited driving privileges.
As with criminal penalties, the impact of a DUI arrest or conviction
on driving privileges will vary according to the driver's history
of DUI violations and the severity of the offense. An increasingly
popular DUI penalty, especially for repeat offenders, is mandatory
installation of an "ignition interlock" device on the
offender's vehicle. This breath-testing device measures the vehicle
operator's BAC, and will prevent operation of the vehicle if more
than a minimum amount of alcohol is detected, such as BAC level
of .02. Where this punishment is utilized, most states require
the DUI offender to pay costs of installation, rental, and maintenance
of the ignition interlock device. Rental fees alone can amount
to as much as three dollars per day, so a DUI offender's expenses
can add up quickly when an ignition interlock device is required.
Plea Bargains in DUI Cases
Recent changes in the law and sentencing trends in the courts have
led to generally harsher penalties for DUI convictions. Additionally,
the law places substantial limitations on the ability of the district
attorney to plea bargain a DUI case. An aggressive and experienced
lawyer is needed to competently pursue the defense of your DUI
case in order to be in a position to enter into any plea bargain
discussion that can ultimately benefit the client
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