Criminal Law

Driving While Intoxicated FAQ

Q: Can I be stopped and arrested for DWI even if the vehicle was not moving?

  • A:It depends on the laws in your state. In some states, the law says that a person is guilty of drunk driving only when actually operating the vehicle. In other states, having the key in the ignition will satisfy the vehicle operation requirement if there was the ability to operate the vehicle.

Q: Do I have the right to talk to an attorney before I give a sample?

  • A:That depends on the laws in your state. In some states, you don't have the right to speak to an attorney before you take a breath, blood, or urine test. So, your right to an attorney doesn't kick-in until after you've taken or refused to take one of those tests. In some states, though, you do have the right to an attorney before giving a breath, blood, or urine sample.

    In either case, if you're stopped for a suspected DUI, it can't hurt to ask to talk to an attorney if you have any doubt about whether you'd pass one of these chemical tests.

Q: Do I have to give a blood or urine sample?

  • A:It depends on the laws of your state, but generally the answer is "Yes, or else."

    In most states, if you refuse to give a blood or urine test (or a breath test), your driver's license will be suspended automatically for anywhere from 90 days to one year. And, you can still be tried for driving while impaired. Even if you're found "not guilty" after trial, the suspension usually remains in effect.

Q: Do I have to submit to a field sobriety test?

  • A:Field sobriety tests are used by an officer to help determine if, in hisopinion, you'reunder the influence of alcohol and should be arrested for drunk driving. The officer may place you through a series of balance (walking an imaginary line or leaning back with eyes closed), coordination (counting on the fingers or touching a finger to your nose while your eyes are closed), or mental (reciting the alphabet or counting backwards) tests.\

    Whether you must obey the officer and take the testsdepends on the laws of your state.

Q: Do I have to take a breath test or can I insist on another test?

  • A:All of the portable devices used by police have to be approved by the National Highway Traffic Safety Administration (NHTSA).

    Whether you have the option to choose the test you take depends on the laws of the state where youwere stopped. Refusing to take a blood-alcohol test can have serious consequences, including an automatic suspension of your license for 90 days to one year, in addition tobeingprosecuted for drunk driving.

Q: DUI laws only apply to cars, trucks, and motorcycles, right?

  • A:No. In many states, you can be arrested if you're drunk or impairedwhiledriving a boat, bicycle, mechanized wheelchair, all-terrain vehicle (ATV), oreven a riding lawn mower or tractor. And, you don't necessarily have to be on a public road. You can be arrested for DUI if you're on private property and an officer sees you operating the vehicle unsafely and suspects you'redrunk or impaired.

Q: If my driver's license is suspended, how can I get it back?

  • A:"Occupational" or "restricted" licenses' are available under many different circumstances. The judge must find that an "essential need" exists, such as the need to travel to and from school or work.In most instances, thelicense is restricted to theroutes, areas, and times you need to drive. If you violate the restrictions - say by driving your girlfriend to dinner on Saturday night - your license may suspended fully or even revoked.

Q: What are the penalties for a DUI conviction?

  • A:The penalties for a DUI conviction vary from state to state and depend, in large part, on whether this is a first, second, third or subsequent conviction.

    All states impose penalties that include some or all of the following:

    • Fines, increasing with subsequent offenses
    • Screening for substance abuse
    • Community service
    • Suspension of driver's license, increasing with each offense
    • Point charges against the defendant's license up through revocation of the license for a predetermined period of time
    • Felony conviction with jail or prison time for a third or subsequent conviction

Q: What is a "zero tolerance" DUI law?

  • A:Many states have these laws, and they're designed to stop underage DUIs. In most states, if you're under 21 years old and your driving with certain blood alcohol level (BAC), you license will be suspended automatically for anywhere from 90 days to six months. The BAC for these zero tolerance laws is usually far below the BAC for adult drivers.

Q: What is "blood alcohol content" (BAC) or level?

  • A:Blood alcohol content (BAC) or the blood alcohol level is the measurement of how much alcohol is in your blood stream at or near thetime you've been pulled over for a DUI. It's the BAC that determines if you're "legally drunk."

    All states have a minimum BAC of .08% for adults, so if you're BAC is at or above that level, you'll be charged with DUI. Also, most states have "zero-tolerance" DUI laws fordrivers under21 years old. In these states, the BAC for drivers under 21 could be as low as .01%.

Q: What is the difference between "DWI" and "DUI"?

  • A:State laws refer to the drunk driving offense as either "driving while intoxicated" (DWI), "driving under the influence" (DUI), or less commonly "operating while intoxicated" (OWI) or "operating while under the influence" (OUI). Some states have an additional offense of "driving while impaired," which is generally a lesser included offense of DWI or DUI. Regardless of the term used, a driver generally violates drunk driving laws by operating a motor vehicle after consuming enough alcohol to register a specific blood-alcohol content (BAC) or level. As of 2005, driving with a blood-alcohol level of .08% or above is illegal in all states.

Q: What is the ''open container'' law?

  • A:Open container laws prohibit the possession of any open alcoholic beverage container and the consumption of any alcoholic beverage in the passenger area of a motor vehicle.

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