DUI
Q: What's going to happen in court if I'm arrested for DUI?
Q: What are the common defenses for DUI case?
Q: What is the difference between “DWI” and “DUI”?
Q: Do I have to take a breath test or can I insist on another test?
Q: Do I have to submit to a field sobriety test?
Q: Can I be stopped and arrested for DWI even if the vehicle was not moving?
Q: What is the "open container" law?
Q: What are the penalties for a DUI conviction?
Q: If my driver's license is suspended, how can I get it back?
What is DUI?
Driving While Intoxicated (“DWI”) is considered a serious crime in every state. DWI and Driving Under the Influence (“DUI”) refer to the same crime. Drinking alcohol or taking drugs may affect your ability to operate cars, boats or industrial equipment in a safe manner. It is against the law in every state to drive under the influence of alcohol or drugs if you cannot safely operate your vehicle.
If the police observe you driving erratically or violating traffic laws, they are permitted to stop and question you for a DWI violation. If they suspect that you are intoxicated, they can ask you to submit to various tests, including a blood alcohol test.
Blood Alcohol Content
When you consume alcoholic drinks, alcohol is absorbed into your blood stream. The level of alcohol in your blood, called the Blood Alcohol Content (BAC), can be measured by different tests. In most states, you are presumed to be drunk and unable to operate a vehicle safely if your BAC is .10 or greater. This measurement means that your blood contains ten/one-hundredths percent of alcohol. In some states, legislatures have lowered the BAC level defining intoxication to .08.
If the police suspect that you are drunk, they can require you to take a breathalyzer or other test to measure your blood alcohol content. Refusal to take a test may result in an automatic suspension of your license for a long period of time, as much as six months or a year, depending upon the state.
You also can be convicted of drunk driving without the results of a blood alcohol test or if your blood alcohol test result is lower than the statutory amount. A jury may convict you based on evidence that your breath, conduct, language, and motor movements showed that you were drunk and unable to drive safely.
Punishment
The penalties for drunk driving are serious.
- Punishment for first time offenders includes suspension of driving privileges, points on your driver’s license, and fines.
- Punishment for second and subsequent offenses increases significantly and usually means jail time.
A drunk driving conviction also generally causes your automobile insurance premiums to increase dramatically.
Many people charged with drunk driving request a trial to fight the charge. Legal defenses may be raised to defeat the drunk driving charge or reduce the penalties. You will need a lawyer to adequately defend yourself at trial.
What's going to happen in court if I'm arrested for DUI?
So you’ve been arrested and charged with “driving under the influence” (“DUI”) or “driving while intoxicated "(“DWI”). While you’ll definitely need a lawyer to defend you in court, it can make things a lot less confusing to know what’s going to happen in court before you talk to a lawyer.
Arraignment
The first hearing in your DWI case is likely to be an arraignment. After reading the charge against you, the judge will ask whether you plead guilty or innocent. Unless you’re represented by an attorney and have talked it over carefully with your attorney, you’ll want to plead “not guilty.”
The judge will decide whether to reduce your bail amount or release you on your “own recognizance” without requiring additional bail.
If you aren’t already represented by an attorney, the judge will decide whether you are eligible for a government-appointed lawyer, called a “public defender.” Being appointed a lawyer fulfills your constitutional right to the assistance of counselin criminal cases where you could be deprived of your liberty.
If you have an attorney, or are appointed a public defender who is present in the courtroom, the prosecutor will give your attorney copies of any police reports and other documents the prosecutor is intending to rely upon in presenting the case against you (such as blood alcohol test results).
The judge will likely set the date for pre-trial motions and trials.
Preliminary Hearings
At a preliminary hearing, the judge will be deciding whether the evidence produced by the prosecutor could (but not necessarily will) convince a jury you were driving while intoxicated. While the procedures for this differ greatly from state to state, it can be your attorney’s opportunity to size up the prosecution’s case.
“Plea bargaining” - negotiating a deal with the prosecutor to plead guilty to a lesser charge- is discouraged in DWI cases and has even been outlawed in some states. Many legislators feel that DWI is such a serious crime that plea bargaining is inappropriate.
There may be cases, however, when an attorney (at or before the preliminary hearing stage) can reach a deal with the prosecutor to have a DWI charge reduced to a less serious charge, such as reckless driving. It may also be possible to reach a compromise by agreeing to plead guilty to the DWI charge in exchange for the prosecutor recommending a less severe sentence than if the case went to trial.
Pre-Trial Motions
Your attorney will likely bring motions to have particular damaging evidence kept out of the trial. Examples of evidence that defense lawyers work hard at eliminating from a DWI trial at the pretrial motion stage include:
- Physical evidence such as alcohol bottles confiscated from the car
- Blood alcohol content testing results
- Any incriminating statements or confessions you may have made to the arresting officer(s)
Trial
Although many DWI cases are resolved short of going to trial, it’s possible you’ll find yourself at trial. If so, the trial is likely to proceed in a predictable manner, with:
- Jury selection (unless it is a trial by judge, which is fairly unusual in DWI trials)
- Opening statements by your attorney and the prosecutor, outlining the evidence each intends to present
- Testimony from witnesses
- Cross-examination of the witnesses by both attorneys
- Motions from your attorney after the prosecution has presented its case, sometimes asking the judge to dismiss the case for lack of evidence
- Closing arguments from both lawyers summing up the evidence, and arguments about how the law applies
- Jury instructions (by the judge) on the law the jury must apply
- Jury deliberation
- Jury verdict
Sentencing
If you’re convicted for DWI, the judge may sentence you to:
- Pay fines
- A short jail stay
- A long jail term if you were involved in an accident where you injured or killed someone
- Probation (internal link) or a suspended sentence, with conditions on where you can go and actions you’re prohibited from (such as drinking)
- Community service, working with local non-profit community organizations
- Drug or alcohol counseling or outpatient or intensive inpatient rehab
- Install an “ignition interlock” device on your vehicle which prevents you from operating your vehicle if your blood alcohol content is over a certain level, typically .02.
If your driver’s license hasn’t already been suspended, your state Department of Licensing may also suspend it for a certain period of time or put restrictions on when and where you can drive.
You’ll need a lawyer to represent you before and during trial. It’s best to find a lawyer you trust as soon as possible after being charged with DWI.
What are the common defenses for DUI case?
In deciding which defenses could apply in your DWI case, your lawyer will look at all the evidence produced by the police and interview witnesses. Some common defenses seen in DWI cases include:
Driving Observation Defenses
The prosecutor always relies (sometimes exclusively) on the arresting police officer’s testimony about how a DWI suspect was driving, including:
- Very slow speeds
- Uneven speeds (very fast, then very slow, for example)
- Weaving from one side of a lane to the other
- Crossing the center line of the highway
- Running a red light
- Hesitation in going through a green light
A good defense attorney will argue that there are many different explanations for these driving behaviors that don’t have anything to do with being alcohol-impaired.
Behavior Observation Defenses
An officer may also testify as to a DWI suspect’s appearance and behavior when questioned, including:
- Slurred speech
- Bloodshot eyes
- Inappropriate joking or incoherent speech
- Stumbling or not being able to walk very far
- Pupil enlargement
Defenses to these observations that don’t have anything to do with being intoxicated may include:
- Lack of sleep
- Allergies
- Contact lenses
- Stress due to personal circumstances
- Medications
- Foods recently ingested
- Nervousness over being stopped by police
- Physical impairments
Field Sobriety Test Defenses
When an officer suspects you may be too intoxicated to drive, he or she will likely ask you to perform what are called “field sobriety tests.” These tests are designed to assess your physical and mental alertness, and can include:
- Walking a straight line
- Walking backwards
- Reciting the alphabet, frontwards or backwards
- Standing on one leg
Officers also sometimes rely on what’s called a “nystagmus” test, in which the suspect is asked to shift eye gaze from one side to the other while the officer shines a light in his or her eyes. The theory is that the gaze of someone who is impaired by alcohol or drugs will be jerky rather than smooth.
The defenses to field sobriety tests are often the same as with officer observations. Medications and lack of sleep can make it considerably more difficult to perform these tests. Many people also have physical impairments caused by injuries - or simply aging -that make it impossible to perform these tasks under ideal conditions.
Your lawyer may cross-examine the arresting officer in detail as to whether the officer asked you if you had physical impairments or there were particular circumstances that would make it difficult to perform the tests.
Your lawyer may also point out to the jury that many jury members may have similar difficulties performing the tests, such as by asking the jury if they could recite the alphabet backwards under the best of circumstances.
Blood Alcohol Content Defenses
When you consume alcoholic drinks, the alcohol is absorbed into your blood stream. The level of alcohol in your blood, called the Blood Alcohol Content (“BAC”) can be measured by different tests. In most states, you’re presumed to be drunk and unable to safely operate a vehicle if your BAC is .10 or greater. This measurement means that your blood contains ten/ one-hundredths percent of alcohol.
Some states have lowered the BAC level defining intoxication to .08, and many states have “zero tolerance” laws that make it illegal for people under 21 to operate a vehicle with any amount of alcohol in their blood.
Many states also have stiffer penalties for driving with a BAC higher than .15 to .20.
Your BAC can be determined from a blood draw, which is often automatically taken if you are involved in an accident and there is a suspicion that you may have been drinking. Your blood will also be drawn if you are taken to the hospital because the police are concerned that you may have had so much to drink that you are in danger of alcohol poisoning and should be hospitalized for observation and/or treatment.
Most DWI suspects have their blood tested by blowing into a breath testing device. These devices can be faulty and not well-maintained or properly calibrated. They can register false results based on your consumption of food and other non-harmful substances other than alcohol or drugs.
Your attorney will likely subpoena police records on how the breath testing machine operates and was maintained and calibrated. Your lawyer may also want to bring in expert testimony that the particular breath testing machine the officer used is notorious for malfunctioning.
Another defense to breath testing machines arises when the physical breath tests aren’t preserved as evidence, allowing for independent testing later. Your attorney can argue that there’s no way to know if the machine that was used was accurate, if your breath samples can’t be independently tested.
Many of the defenses against DWI charges require a lawyer’s expertise and experience. If you’ve been charged with DWI, it’s important to contact a lawyer right away.
What is the difference between “DWI” and “DUI”?
“DWI” stands for "driving while impaired" while “DUI” represents "driving under the influence." There is also a third, common term "OWI" or "operating while impaired." All three terms represent operating a motor vehicle after consuming enough alcohol to register a specific blood-alcohol level. Most states set the level at .1, although some states have or are considering lowering the level to .08.
Do I have to take a breath test or can I insist on another test?
All of the portable devices used by police have to be approved by the National Highway Traffic Safety Administration and should be problem-free if maintained and used correctly.
Whether you have the option to choose the test you take depends on the state you are in when stopped. Refusing to take a blood-alcohol test can have serious consequences, including suspension of your license and being prosecuted for drunk driving.
Do I have to submit to a field sobriety test?
Field sobriety tests are used by an officer to help determine if, in his or her opinion, you are under 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. The tests are often viewed as additional evidence which the suspect inevitably "fails". Whether you must comply will depend on the state you are in when stopped and requested to take the test.
Can I be stopped and arrested for DWI even if the vehicle was not moving?
It depends on the state you are in. 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 that the intent if there was the ability to operate the vehicle.
What is the "open container" law?
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.
What are the penalties for a DUI conviction?
The penalties for a DUI conviction will vary from state to state and depend, in a 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
If my driver's license is suspended, how can I get it back?
"Occupational licenses" are available under many different circumstances. The judge must find that an "essential need" exists, such as school or job commuting. The license is restricted as to routes, areas and times.
California DUI Laws
When you are facing DUI / Drunk Driving charges, you need to rely on your DUI Defense lawyer.
If you have been charged with driving under the influence / DUI in the State of California you may face stiff fines and penalties including license suspension and jail. You need to seek the advice of an experienced and aggressive DUI attorney immediately. The Law Offices of Anthony Lowenstein can provide you with the knowledge and experience that is crucial in your defense against DUI charges.
***Immediate Action must be taken regarding your rights with the DMV***
If you are arrested for a DUI / driving under the influence and your blood alcohol level is .08 percent or more, your driver's license will be taken away by the arresting officer at the time of your arrest. The Department of Motor Vehicles will suspend your license and issue a temporary permit for 30 days. You must schedule a DMV hearing within 10 days of your arrest in order to appeal the license suspension. Make sure you get assistance from your DUI lawyer when appealing to the DMV. The Law Offices of Anthony Lowenstein will effectively guide you through this process in an aggressive effort to Set Aside your license suspension.
Under California law, California Vehicle Code Sections 23152 and 23153, the following regulations apply:
- It is a crime for anyone with a blood alcohol level of .08 percent or higher to operate a motor vehicle on a public roadway.
- If you are under the age of 21, it is a crime to operate a motor vehicle on a public roadway with a blood alcohol level of over .01. This means that even one drink may put you over the legal limit.
- It is a crime to drink any alcoholic beverage in a motor vehicle upon a public roadway.
- It is a crime to have an opened container holding any amount of alcoholic beverage in a motor vehicle on a roadway unless the container is kept out of the immediate control of the occupants.
- Anyone arrested for driving under the influence must submit to a chemical test (blood, breath, or urine) to determine the alcohol content of the blood. Failure to complete or refusal to take the test will result in suspension of the driver's license for one year.
In California, law enforcement agencies have the right to stop your vehicle if they suspect that you may be driving under the influence. If you are pulled over, you are only required to present identification and vehicle documentation. You are not required to answer any questions regarding your destination, number of drinks consumed, etc. You are not required to perform any roadside tests such as walking a straight line, reciting the alphabet, touching your nose, or moving your eyes from side to side. You are not required to submit to a roadside breathalyzer test but you are required to submit to testing at a regulated facility. Insist that you be taken to a police station for testing. You will be given the choice of submitting to a breath test or a blood test. You will not be given the opportunity to contact a DUI lawyer or DUI attorney until after the test is performed. If you refuse the test, your penalties will be much stiffer.
If your BAC is over .08 you will be arrested. Make sure that you do not answer any questions until you consult with an experienced DUI / Drunk Driving lawyer. The Law Offices of Anthony Lowenstein is committed to upholding your rights. We employ an aggressive defense and can often reduce or dismiss the charges against you. Our sole priority is to achieve a resolution that you can live with, without significantly affecting your lifestyle.
In California, close to 30% of DUI arrests do not result in a conviction, and this is often due to the aggressive defense of an experienced and knowledgeable DUI attorney. In many cases, a conviction will not automatically lead to jail. There are many forms of Alternative Sentencing that may be available to you. The Law Offices of Anthony Lowenstein is armed with the knowledge and experience to build a winning defense. Mr. Lowenstein will make sure that all alternative sentencing options are presented to the judge. Located in Los Angeles County and serving Southern California in the area of DUI defense, Mr. Lowenstein has successfully represented his clients throughout the greater Los Angeles area. Admitted to practice law in California and California, Mr. Lowenstein has earned a reputation as an aggressive DUI defense lawyer on both coasts of the U.S.
The Law Offices of Anthony Lowenstein will vigorously defend your rights to a fair and unbiased trial and guarantees that you will receive the undivided attention you deserve.
