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FAQ’s About Being Arrested For DUI

Facts About DUIs

DUI charges carry serious, long-term consequences, so it’s important to carefully consider how you will proceed if you’ve been charged with DUI. Read the following FAQ to gain a better understanding of the DUI laws and what may happen after a DUI arrest. After that, you will be prepared to have an educated discussion with a criminal defense attorney about the next steps you should take.






How many drinks is too many?

Many people looking to avoid a DUI ask how many drinks they can have before they are legally intoxicated. This isn’t the best way to ask the question because the answer varies greatly. DUI charges are based on how much alcohol is in your system at the time you are driving, and the measurement used is blood alcohol content (BAC).

Because of federal highway funding laws, the legal limit in all 50 states and the District of Columbia is a BAC of .08. In addition to the amount of drinks you’ve had, BAC is affected by your metabolism, how long the period in which you had the drinks was, your weight, what you’ve had to eat, and other factors.

Because of this, there is no exact science to determining how many drinks is too much. A small woman might be legally intoxicated after two small glasses of wine, while a heavyset man can drink several shots and a couple of beers and still be under the legal limit. Therefore, the safest course of action is to use a designated driver, taxi, or public transportation whenever you drink socially.

What are the penalties for a DUI?

A first time DUI offense is generally a misdemeanor punishable by up to one year in jail, a fine of several thousand dollars, or several years of probation. Most first time offenders will avoid jail other than the night they are arrested, but the penalties escalate quickly for subsequent offenders and could include felony charges with prison time. If an intoxicated driver is involved in an accident causing serious injury or death, they may face additional charges such as reckless endangerment or manslaughter that could result in years of imprisonment.







Do the penalties depend on how drunk you were?

Most states do have varying degrees of criminal charges depending on a person’s level of intoxication. A BAC of .08 may bring misdemeanor charges, but a BAC twice that might either upgrade the charges to a felony or still be a misdemeanor but carry a harsher sentence. Because only the .08 intoxication level is mandated by the federal government, the exact levels for enhanced penalties vary by state.

Can you still be charged even if below the legal limit?

There are three occasions where a driver with a BAC of .08 may be criminally charged. First, if the police or prosecution believes that the driver tested with a BAC lower than the legal limit due to a delay in testing or some other reason and they still believe they can prove that the person’s BAC was higher than .08 beyond a reasonable doubt. This is extremely difficult for them to do and rarely happens absent extenuating circumstances such as a crash causing severe injuries or a repeat offender.

Second, a driver with a BAC of less than .08 may be charged with a lesser offense such as driving while impaired. Driving while impaired doesn’t require a specific BAC but only that a driver had been drinking and it affected their driving. This charge may be proven by police testimony about erratic driving or a failed field sobriety test.

Finally, a minor may be subject to DUI charges even if their BAC is below .08. Because of the nationwide minimum drinking age of 21, many states have enacted zero tolerance laws regarding drinking by minors. If a minor’s BAC is above 0, they may either be subject to either adult DUI charges or severe administrative and civil penalties such as license suspensions and fines.

Do you have to be driving?

A DUI charge usually only requires that a person be in control of a vehicle not that they were actually driving. “Drivers” found sleeping in parked cars or opening the driver’s side door of a parked car have been convicted of DUI.

It should also be noted that a police officer does not need to observe someone in the car to charge them with DUI. The most common situation where this occurs is following an accident where police arrive after the fact and rely on witnesses to tell them who was driving. However, in order for the prosecution to make their case, the witness would have to testify in court.

How do police determine BAC?

There are several tests used to determine BAC. The first tests performed are called field sobriety tests and don’t measure BAC specifically but instead determine whether a person shows signs of intoxication. These include the tests such as walking on a straight line, reciting the alphabet backwards, and balancing on one foot that are commonly seen on TV.

If the initial tests are failed, police will usually use a field Breathalyzer. This is a small, handheld machine that is blown into for several seconds. It estimates BAC based on the amount of alcohol in a person’s breath.

If the police have probable cause to make an arrest based on these tests, the person will be taken to a police station or hospital for additional testing. Depending on the jurisdiction, this will either be a more accurate breath test or a blood test.

Do you have the right to an attorney before taking a field sobriety test or chemical test?

A person generally does not have the right to consult with an attorney before taking a field sobriety or chemical test. The collection of physical, medical evidence is not considered to be making a statement, so the Fifth and Sixth Amendments do not apply. Further, courts have held that because a delay in testing reduces its accuracy, any intrusion on personal liberties caused by not giving a person a chance to speak with an attorney is outweighed by the need to obtain accurate results.

What happens if you refuse a field sobriety test or chemical test?

Consenting to BAC testing is a condition of holding a driver’s license in the United States. Refusing a field sobriety test or chemical test will result in an immediate and lengthy license suspension. Depending on the circumstances, usually when a serious accident has occurred, a chemical test may also be forcibly administered.

Are DUI checkpoints legal?

DUI checkpoints, where the police stop every car or a portion of the cars at a certain point along a road have been heavily criticized by civil rights activists but are generally considered legal. The key to whether they are legal depends on whether police used some sort of discernible, objective pattern for choosing which cars to stop. Stopping every car or every third car is permissible. Arbitrarily choosing which cars to stop or subjectively stopping cars would implicate the Fourth Amendment and call the legality of that specific checkpoint into question.

What is a no contest plea and does it help anything?

A plea of no contest, or nolo contendere, means that a person does not wish to challenge the charges. In essence, they accept guilt just as if they had pled guilty and receive essentially the same direct consequences. It is no longer the case that a no contest plea results in no license suspension. A no contest plea cannot, however, be used as an admission of guilt in a civil lawsuit against a drunk driver, and it may be viewed differently than a guilty plea by employers, landlords, and other private parties.

What is an ignition interlock device and when is it required?

An ignition interlock device is basically a Breathalyzer-type machine that is tied to a car’s ignition system. It does not allow a car to start until the person sitting in the driver’s seat blows below the legal limit. Some states require ignition interlock devices after a first DUI conviction while others only require them for repeat offenders. They may be required as a term of probation or as a stand-alone administrative requirement.

What happens to your driver’s license following a DUI?

At minimum, a DUI conviction results in a license suspension for several months, and subsequent DUI convictions or a high BAC may lead to a longer suspension or revocation. Depending on the severity of the offense, drivers may be able to apply for a restricted license, allowing them to travel to work and school only, either immediately or after a certain amount of time has passed.

How does a DUI affect your car insurance?

Drivers convicted of DUI can expect their insurance rates to skyrocket or to have their coverage dropped altogether. If a driver has their license suspended or revoked, they will usually be required to provide proof of adequate insurance to the Department of Motor Vehicles before having their license restored.