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.
