Drunk driving is a crime in all 50 states and the District of Columbia. Depending upon the state, the name of the offense will vary. Some states refer to the offense as DWI, driving while intoxicated. Others use DUI, driving under the influence of an intoxicant, or OUI, operating under the influence. In some states an OUI is a lesser offense for a DWI.
An officer must have probable cause to initially stop the defendant. Typically, the officer will observe the defendant operating his vehicle in an unsafe or improper manner. The officer may also have probable cause to stop the defendant’s vehicle if, for example, his tail light was not working. Once the officer has stopped the vehicle, he will probably request that the defendant exit the vehicle in order to perform some tests.
Field Sobriety Tests—these tests are not REQUIRED by law!!!! Only the breath test or chemical test is required under the implied consent law discussed below. You can refuse to perform the Field Sobriety Tests.
The officer may conduct field sobriety tests on the defendant. These test the defendant’s physical ability and coordination. Such tests may include:
recitation of the alphabet
walking a straight line
standing on one foot
closing the eyes and touching the index fingers to one another
The defendant is considered to have failed the test if the officer determines the defendant lacks the proper speaking skills or coordination. Usually if one is asked by an officer to “step out of the car, please”, then you probably are not going to be allowed to get back in and drive off. You will more than likely be escorted to the local jail. Just remember…be quiet…an arrest is not a conviction and most people who get arrested start chatting themselves right into a conviction in hopes of talking the officer out of the arrest.
Most states have an implied consent law. Florida has one as well. This law states that the defendant is required to submit to some type of scientific test or tests that measure the level of alcohol in the defendant’s blood. Florida mandates that a refusal to submit to the tests results in an automatic suspension of the defendant’s operator’s license. Some states make the defendant’s refusal to submit to the testing a criminal offense. Further, most state statutes also include a provision that if the chemical test shows that there is alcohol in the defendant’s blood, a rebuttable presumption of intoxication arises.
Breath and Chemical Tests
The officer may require the defendant to take a breath test. This test entails blowing into a device that will measure the amount of alcohol in the defendant’s system. If the breath test was properly administered, the results may be admitted against the defendant.
The defendant may also be required to submit to a blood and or urine test. These tests may be conducted at a police station or at a hospital some time after the arrest has occurred.
Once the officer has determined that the defendant was operating his vehicle while intoxicated, an arrest is made. The defendant may be given his Miranda warnings at that time. Unless a custodial interrogation is in progress, any statements that the defendant may make may be used against him. The defendant will be transported to the police station or a hospital for further testing. The best thing to do if arrested for DUI is to tell the officer that you do not wish to speak with him or her without the presence of your attorney. Keep repeating that same sentence if the officer persists on questioning you. Memorize that sentence if you have to.
The prosecutor will determine the proper charge based upon the police report. Depending upon the defendant’s blood alcohol level, he will be charged with some form of drunk driving.
The Trial or Plea
The defendant is entitled to a trial for the offense of drunk driving. The defendant may also enter into a plea bargain with the prosecutor. The trial procedure is the same in this instance as in all other criminal trials. The defendant is entitled to be represented by counsel or may represent himself. Opening statements are made, evidence is admitted, testimony is taken, and closing arguments are made.
The penalties for drunk driving vary greatly from state to state. In Florida, the state will revoke the defendant’s license at least for a period of 6 months for a first offense. The penalties are much stronger for repeat offenders. Most of the time the defendant is also fined. The defendant may also be required to attend an alcohol treatment facility or class. He may also be sentenced to time in prison, especially if he is a repeat offender. Some judges require the usage of an ignition lock on the defendant’s vehicle that would require him first to blow into a device to ensure that he is not intoxicated prior to starting his vehicle.
The defendant will also be subject to administrative proceedings with respect to his driving privileges. These administrative proceedings are separate from the criminal proceedings and are goverened by the Department of Highway Safety and Motor Vehicles. A hearing can be requested within 10 days of receiving the ticket for DUI to avoid an administrative suspension.