Driving Under the Influence Definition

WHAT IS THE LEGAL DEFINITION OF "DRUNK DRIVING"?

The legal definitions of "driving" and "drunk" are open to many interpretations, which vary subtly from state to state. In some places, "driving" can include sitting still in a parked or wrecked vehicle with the motor off, or starting up a car in a driveway. Police can and do arrest people whom they believe are drunk before they get on the road and even when they've pulled off to "sleep it off," if they're in the driver's seat.

As for the definition of "drunk," there are several major factors to consider. You can be "legally impaired" in the eyes of the law without ever taking a drink, if you have taken other substances (including prescribed medication) that affect your ability to drive. You can also be found drunk even when you have all your faculties in perfect working order.

In short, you can be found guilty of drunk driving, also called driving while intoxicated (DWI) or driving under the influence (DUI), if the state can prove either that:

• you are legally intoxicated while driving, meaning that your body shows alcohol levels above a state-mandated limit. The most common level is .10 percent, as determined by a blood test or breath test, though in some states the level is lower. (In Colorado, for instance you are legally impaired if your alcohol level is .05 percent.) For drivers of commercial vehicles, the level may be even lower.
• you have been driving while your faculties are impaired by alcohol or a drug--that is, that your ability to see, hear, walk, talk and judge distances is below normal as set by the state you're arrested in. Even if your alcohol level is lower than the legal intoxication level, you can still be convicted if the state can show your abilities were impaired.

WHAT'S THE LEGAL LIMIT?

Blood tests measure the number of grams of alcohol per 100 milliliters of blood, and breath tests measure grams of alcohol per 210 liters of breath. In most states, you can be convicted of "drunk driving" when either level is at .10 percent or higher. (Many states are considering a lower level of .08 percent.) But remember, you can be convicted based on other factors even if you don't take the test.

State legislatures have justified these levels on the basis of scientific testing, which has concluded that persons having a blood alcohol content at or above .10 percent are impaired. (In some states, such as California and Florida, the level of impairment is .08 percent.) So, if the state can prove that at the time a person operated a motor vehicle their blood alcohol level was above the legal limit, a conviction for drunk driving may be possible.

The police also may sometimes be able to require that you take a blood test to determine if you have been using drugs. Even if you have taken a legally prescribed dose of medication, you can be convicted if you are found to be impaired.

WHAT KINDS OF TESTS FOR IMPAIRMENT CAN THE POLICE ASK A PERSON TO TAKE BY THE SIDE OF A ROAD?

Any type they want. They could, for instance, ask you to sing the national anthem. However, the commonly-used types of "field sobriety" tests include:

• the "one-leg stand" (the driver must stand on one leg for approximately 30 seconds)
• the "heel-to-toe" test (walking heel to toe in a straight line)
• the "bend test" (the driver must bend forward or backward with eyes closed).

Some police will ask a driver to recite the alphabet or count backward. These, and other tests, may be conducted again at the police station in greater detail.

In most states, including Colorado and Florida, you can refuse to take the roadside tests without suffering any penalty. Even so, if the officer observes the smell of alcohol, bloodshot eyes, bad balance, slurred speech or other signs of intoxication, he usually has enough probable cause to believe you are impaired, and therefore can arrest you on a charge of drunk driving. However, in some circumstances your refusal to take roadside tests could be used against you in court, though it will not be evidence enough to convict you.

CAN A PERSON BE ARRESTED ON THE ROAD MERELY BECAUSE THE POLICE OFFICER CLAIMED TO SMELL ALCOHOL ON HIS OR HER BREATH?

While the odor may not be enough to warrant an arrest, that fact combined with others, such as bloodshot or watery eyes, slurred speech or the manner of driving prior to the stop, may give the officer probable cause to arrest the driver.

WHAT HAPPENS WHEN AN OFFICER ASKS A PERSON TO TAKE A ROADSIDE BREATH TEST?

In a roadside test, also known as a preliminary breath test, an officer gets an immediate measurement of your alcohol level by asking you to breathe into a specially designed bag or a tube. The test does not usually substitute for a formal blood or breathalyzer test, but it can be used to determine that enough probable cause exists to arrest you. You may refuse to take the test, but that won't prevent the officer from arresting you if there is enough other evidence that you are drunk.

CAN A PERSON REFUSE TO TAKE THE BREATHALYZER AT THE STATION?

You can, but it is not a good idea. Your refusal may make it harder for the prosecution to obtain a conviction, but because of the trend to greater stringency you can still get convicted on the basis of the roadside tests and other police testimony. You don't even have the right to a lawyer at this point in the process, because a breath or blood sample is considered "non-testimonial" evidence.

In an attempt to ensure compliance, all states have adopted what are known as implied consent (also called express consent) laws that apply to testing for alcohol in the blood, breath or urine, and most states also have such laws that apply to testing for the use of drugs. The principle underlying these laws is that any licensed driver who operates a vehicle has implicitly (that is, without stating it) consented to submit to approved tests for purposes of detecting alcohol or other chemical substances to show intoxication.

Nonetheless, even with these "implied consent" laws, you may still refuse to take a breath, blood or urine test, BUT the state can punish you for such a refusal with higher fines or jail terms. In many states you also risk having your license revoked quickly, after a summary hearing, simply because you refused. You can be convicted even if you were sober and refused to cooperate because you objected to the police show of power.

The drawbacks of refusal don't stop there: If you refuse, go to trial and are convicted, your penalty often will be harsher than if you agreed to cooperate and take the test. You will probably lose your driving privilege for 6 to 18 months, depending on whether it it is your first refusal or not.

UNDER WHAT CIRCUMSTANCES WOULD THE POLICE ASK FOR A BLOOD OR URINE SAMPLE RATHER THAN A BREATH TEST?

Whenever there is serious injury or death as the result of an accident, police will want to get a blood sample from drivers because such tests are more scientifically solid than breath tests and will stand up better in court. State statutes and judicial interpretations of an individual's right to due process generally require that blood be drawn by medical personnel -- usually at a hospital or other medical facility.

Because drugs are more easily traced in urine than in blood, someone arrested on suspicion of impairment through drugs may be asked to take a urine test. Since this is not an "invasive procedure" like a blood test and does not require special training to adminster, it may sometimes be done at the police station rather than at a hospital.

CAN A DRIVER INVOLVED IN AN ACCIDENT WHERE SOMEONE IS INJURED OR KILLED REFUSE A BLOOD TEST?

In these instances, a person's right to refuse a test is severely restricted. If the police have probable cause to believe that a driver is impaired, they can and do use a reasonable amount of force to require the driver to submit to a blood test. While this test must be performed by medical personnel, the fact remains that the police have the right in this situation to apply force.

In addition to drunk driving penalties, a driver involved in a fatal accident could face criminal charges of assault, manslaughter, and even homicide. There may also be civil penalties.

WHAT ARE THE TYPICAL PENALTIES FOR DRUNK DRIVING?

A conviction for drunk driving usually carries with it some stiff penalties. And while these penalties will vary from state to state, they will generally entail the loss of a driver's license for a specified amount of time, a fine, and possibly jail time. Other penalties may include probation, community service, driver rehabilitation school, and substance abuse counseling.

The high profile and get-tough policy has developed because drunk driving has been targeted as a terrible social problem that has potential for improvement. Organizations such as Mothers Against Drunk Driving (MADD), led by parents who have lost children in drunk driving accidents, have been extremely effective in stirring public outrage and lobbying for tougher laws.

Their success has been aided by the fact that possessing a driver's license and operating a motor vehicle is NOT A RIGHT of every citizen, but a privilege extended by the state in which you live. The license is issued under a state's regulation, and a state may revoke it. The courts have given police wide discretion when dealing with the enforcement of motor vehicle laws. A citizen usually has fewer rights when driving a car than when walking on the street or residing at home.

Penalties vary sharply by state, but in all cases are highest for accidents in which others are injured or killed, and for repeat offenders. Sometimes a driver is arrested on a manslaughter charge immediately after a fatal crash, if there is probable cause to believe the driver was drunk.

As for post-conviction sentences, some states have statutes requiring mandatory jail time--ranging from 48 consecutive hours to two years--for a drunk driving conviction for anyone whose drinking caused a death or an injury. Some states also require driving school and alcohol or drug rehabilitation, and in some cases judges may sentence offenders to do community service in emergency rooms and morgues.

The following shows a general range of penalties imposed after conviction on drivers who were arrested in accidents or in incidents in which there were no injuries or major damage:

For a first conviction with no injury or major damage:

1) A fine ranging from $100 to $5,000, and or, 2) Imprisonment for up to 2 years, and or, 3) Loss of driving privilege for a certain period of time (usually ranging from 30 days to three years)

For a second conviction on a similar charge:

1) A fine ranging from $200 to $5,000, and or, 2) Imprisonment up to two years, and or, 3) Loss of driving privilege for up to five years. For a third conviction on a similar charge:

1) A fine ranging from $300 to $150,000 and or, 2) Imprisonment for up to six years, and or, 3) Loss of driving privilege for 180 days to a permanent revocation.

CAN AN INSURER LEGALLY RAISE A PERSON'S RATES BECAUSE OF A DRUNK DRIVING CONVICTION?

Yes. A very costly aspect of a conviction for drunk driving is the price of insurance. Basically, insurers can charge sky-high fees and raise the rates of convicted drivers. In some states--New Jersey, for example--a person convicted of drunk driving must pay a mandatory $1000 per year auto insurance payment for three consecutive years, in addition to any court-imposed penalties and fines. This is added to the increase that will inevitably--and legally-- occur in a driver's automobile insurance premiums.

WHAT IS THE BEST WAY TO PREVENT A CONVICTION?

There are ways to challenge a drunk driving charge, but it will be difficult to prevail and will require expensive legal advice and possibly the payment of an expert. Success in court is rare. As a result, most drunk driving charges result in guilty pleas.

For those who decide to take it to the mat, it is important to remember that if you fight and lose, a judge will sometimes impose higher penalties. But after hearing all this, you still want to fight (you may, after all, be not guilty). Here are some ways that others have occasionally succeeded:

• You can challenge the breathalyzer test you took, alleging it was improperly administered or malfunctioned. However, be aware that this is becoming much more difficult to do because the test, which used to be mechanical, is now digital and more reliable.
• You can challenge a roadside test as improperly performed or inconclusive, or indeed proof positive that you were sober.
• You can argue that your alcohol level was rising, not falling, at the time of your breathalyzer test at the station. This is generally a last-ditch attempt at defense by repeat offenders; after a driver has had two or three convictions, is in danger of losing his license, and faces serious jail time, he or she may decide it's worth it to fight with this tactic, which is costly but sometimes meets with success.

Here is the logic behind this defense: the body metabolizes alcohol at varying rates. Levels fall and rise with time as the effects wear off. If your level at the station was just a tad over the legal limit of .10 percent--say, .12 percent or .11 percent--you can argue that it had risen in your blood in just the time it took to go from roadside to the station. So you argue it was lower than the legal limit when you were stopped, and you were not drunk driving on the road. You will in all likelihood need an expert to testify whether the breathalyzer level showed a rising or falling level, and the state will enlist its own expert to refute yours. These freelance experts can be very expensive; one well-known expert in Florida flies around the country on these cases and charges $10,000 to a defendant for an appearance.

DO I HAVE TO? YOUR RIGHTS WHEN YOU'RE STOPPED BY THE POLICE

A police officer is motioning you to pull over. What are your rights?

You may REFUSE to:

• Take a roadside test in most states without suffering a penalty. In some states, though, a refusal can be presented as evidence against you in court.
• Take a breath test--but in many states refusal will result in automatic suspension of your license. And in every state, you can still be convicted of drunk driving on other grounds.
• Give permission for a search of your trunk or car interior if the police have no probable cause to conduct the search. You should not be intimidated by the police into giving consent when your really don't want them to do a search-- even if you've got nothing to hide. If the police ignore your refusal and search anyway, you will have a strong argument that anything they found cannot be used against you.

You may NOT REFUSE to:

• Stop your car.
• Give a blood or urine sample when you have been involved in an accident with major damage or injury. The police may apply force to help medical personnel take the sample.

You have no say at all when:

• The police have probable cause to search your car. In this case, they won't ask permission. An unopened six-pack on the front seat usually won't give them probable cause to search, but the smell of marijuana will.
• The police search the interior from the outside with their flashlights, see something illegal and seize it.

The police stop and frisk you IF they have a "reasonably articulable suspicion" that you may be carrying weapons or drugs or other contraband.