Driving while intoxicated (DWI), driving under the influence (DUI) and related impaired driving offenses can have a serious impact on one's life. That's why it's so important to understand the law, your rights and your legal options when facing such charges. FindLaw's DUI - DWI Law Center contains a wide variety of resources to help you navigate the often-confusing world of impaired driving law, including state-specific DUI information and primers on the different stages of a drunk-driving case.
After stopping a motorist on suspicion of DUI, the officer typically checks for signs of impairment and may ask the driver to submit to a breathalyzer test to determine his or her blood-alcohol concentration (BAC).
But not everyone willingly provides a breath sample and police officers cannot force DUI suspects to blow into a tube. More than 20 percent of drunk driving suspects in the U.S. refuse to take a breathalyzer or other BAC test when an officer suspects drunk driving, according to the National Highway Traffic Safety Administration (NHTSA). It varies greatly from state to state, from 2.4 percent in Delaware to 81 percent in New Hampshire (based on 2005 data cited by NHTSA).
DUI attorneys generally have more leverage defending their clients in the absence of breathalyzer test results. The act of refusal, though, comes with its own penalties.
Implied Consent Laws
Under "implied consent" laws in all states, when they apply for a driver's license, motorists give consent to field sobriety tests and chemical tests to determine impairment. Should a driver refuse to submit to testing when an officer has reasonable suspicion that the driver is under the influence, the driver risks automatic license suspension along with possible further penalties.
Under "implied consent" laws in all states, when they apply for a driver's license, motorists give consent to field sobriety tests and chemical tests to determine impairment. Should a driver refuse to submit to testing when an officer has reasonable suspicion that the driver is under the influence, the driver risks automatic license suspension along with possible further penalties.
Consequences for breathalyzer refusal vary by state, which may explain the wide variance in statewide refusal rates, but most states impose an automatic six- or 12-month driver's license suspension upon refusal of a BAC test. Suspensions usually increase for a refusing motorist with past DUI convictions, sometimes including jail time. License suspension following a refusal may also cause your car insurance company to cancel your policy. In many states, if the driver is found guilty of DUI, having refused the breathalyzer can result in enhanced penalties.
Penalties for Refusing a Breathalyzer
Here is just a sample of state DUI laws with respect to breathalyzer test refusal:
■ California: Can result in a citation for refusing a chemical BAC test; consenting to a blood draw after initially refusing a breathalyzer test exempts the suspect from a refusal charge
■ New York: Automatic six-month license suspension plus a possible $500 fine
■ Massachusetts: Six-month automatic license suspension, but refusal cannot be used to imply guilt in a DUI case; lifetime suspension for refusal after three prior DUI offenses
■ Ohio: Mandatory minimum 6-day jail sentence or three days in jail plus a 72-hour driver intervention program, and a fine, for those with a prior DUI conviction (20-day sentence if it's the second DUI charge in six years)
Here is just a sample of state DUI laws with respect to breathalyzer test refusal:
■ California: Can result in a citation for refusing a chemical BAC test; consenting to a blood draw after initially refusing a breathalyzer test exempts the suspect from a refusal charge
■ New York: Automatic six-month license suspension plus a possible $500 fine
■ Massachusetts: Six-month automatic license suspension, but refusal cannot be used to imply guilt in a DUI case; lifetime suspension for refusal after three prior DUI offenses
■ Ohio: Mandatory minimum 6-day jail sentence or three days in jail plus a 72-hour driver intervention program, and a fine, for those with a prior DUI conviction (20-day sentence if it's the second DUI charge in six years)
DUI Traffic Stop FAQs
What is the legal limit for blood toxicity?
In general, it is illegal for you to drive while you are "impaired" by drugs or alcohol. It should be clear at the outset that prescription drugs are not excluded from this list. Being impaired means that there must be enough of the alcohol or drug in your system to prevent you from thinking clearly and driving safely while on the road. According to many studies, impairment happens to many people well before they consider themselves drunk or stoned.
What is the legal limit for blood toxicity?
In general, it is illegal for you to drive while you are "impaired" by drugs or alcohol. It should be clear at the outset that prescription drugs are not excluded from this list. Being impaired means that there must be enough of the alcohol or drug in your system to prevent you from thinking clearly and driving safely while on the road. According to many studies, impairment happens to many people well before they consider themselves drunk or stoned.
As for the numbers if you have a blood alcohol content of .08% or higher, that is considered "per se" Driving Under the Influence (DUI), or Driving While Intoxicated (DWI). For those under the legal drinking age of 21, in almost all states you will be considered to be driving under the influence if you have a blood alcohol content great than .01% or .02%, depending on the state you are in.
What methods do police use for detecting drivers under the influence?
In general, police have three different methods of figuring out whether or not a driver is under the influence:
■ Observing erratic driving. In general, police officers will pull you over if they notice that you are showing any of the signs of driving under the influence. These signs include swerving, speeding, driving too slowly, failing to stop, failing to yield, and any other indications that signal to the officer that you are driving drunk. In general, if you actually have a good reason for driving the way you were driving, the officer may let you go with only a ticket or a warning. However, officers will be looking to see if your eyes are blurred or if they smell alcohol on your breath.
■ Field Sobriety Tests. If, after stopping you, the police officer has a hunch that you may be driving under the influence, he will most likely get you out of the car in order to do some field sobriety tests. These tests can include walking in a straight line, standing on one leg, or a speech test. The officer will also carefully watch your eyes to look for any pupil dilation. If you fail these tests, the officer will likely ask you to take a chemical test.
■ Chemical Blood Alcohol Level Tests. If you fail a field sobriety test, the police officer will likely take you in to perform a more accurate blood alcohol level test. These tests are normally taken by testing a blood, urine or breath sample. The blood test is very direct and measures the amount of alcohol in your system. The urine and breath tests work off of a mathematical formula to derive your blood alcohol level from the sample. If you test above a .08% blood alcohol level, you will be guilty of a DUI unless you can convince the judge that you were not impaired or being unsafe. Also, many attorneys base their drunk driving defense on challenging the mathematical formula used in the tests.
In general, police have three different methods of figuring out whether or not a driver is under the influence:
■ Observing erratic driving. In general, police officers will pull you over if they notice that you are showing any of the signs of driving under the influence. These signs include swerving, speeding, driving too slowly, failing to stop, failing to yield, and any other indications that signal to the officer that you are driving drunk. In general, if you actually have a good reason for driving the way you were driving, the officer may let you go with only a ticket or a warning. However, officers will be looking to see if your eyes are blurred or if they smell alcohol on your breath.
■ Field Sobriety Tests. If, after stopping you, the police officer has a hunch that you may be driving under the influence, he will most likely get you out of the car in order to do some field sobriety tests. These tests can include walking in a straight line, standing on one leg, or a speech test. The officer will also carefully watch your eyes to look for any pupil dilation. If you fail these tests, the officer will likely ask you to take a chemical test.
■ Chemical Blood Alcohol Level Tests. If you fail a field sobriety test, the police officer will likely take you in to perform a more accurate blood alcohol level test. These tests are normally taken by testing a blood, urine or breath sample. The blood test is very direct and measures the amount of alcohol in your system. The urine and breath tests work off of a mathematical formula to derive your blood alcohol level from the sample. If you test above a .08% blood alcohol level, you will be guilty of a DUI unless you can convince the judge that you were not impaired or being unsafe. Also, many attorneys base their drunk driving defense on challenging the mathematical formula used in the tests.
Do I have to take a test if the police direct me to do so?
In general, you are allowed to refuse to take a chemical blood alcohol level test, but if you do, you will invoke an "implied consent" law. This will likely result in a suspension of your driver's license for a period of time, even if you are found not guilty in court. In addition, if your case does go to trial, the prosecutor is free to tell the jury that you refused to take a chemical test, which may look bad for your drunk driving defense.
In general, you are allowed to refuse to take a chemical blood alcohol level test, but if you do, you will invoke an "implied consent" law. This will likely result in a suspension of your driver's license for a period of time, even if you are found not guilty in court. In addition, if your case does go to trial, the prosecutor is free to tell the jury that you refused to take a chemical test, which may look bad for your drunk driving defense.
After I have been stopped for driving under the influence, can I consult with a lawyer before deciding which a chemical test to take?
This depends upon the laws of your state. For example, in Arizona, you may talk to a lawyer before deciding to take a chemical test. However, other states do not allow you to consult with an attorney before a test.
This depends upon the laws of your state. For example, in Arizona, you may talk to a lawyer before deciding to take a chemical test. However, other states do not allow you to consult with an attorney before a test.
Can the police ask me questions after pulling me over but before reading me my rights?
It all depends on the circumstances and whether or not you are in the "custody" of the police. During a roadside traffic stop, you are not considered to be in police custody, and therefore the police can ask you questions without reading you your Miranda warning. Once you are in police custody, however, they must read you your rights before asking you any questions. If they don't, any answers you give may be inadmissible against you in court. To be in custody, you must feel that you are not free to leave a situation.
It all depends on the circumstances and whether or not you are in the "custody" of the police. During a roadside traffic stop, you are not considered to be in police custody, and therefore the police can ask you questions without reading you your Miranda warning. Once you are in police custody, however, they must read you your rights before asking you any questions. If they don't, any answers you give may be inadmissible against you in court. To be in custody, you must feel that you are not free to leave a situation.
Should I get a lawyer if I have been charged with drunk driving?
If you are determined to put forth a great drunk driving defense, then it would be very wise to hire a drunk driving attorney. These attorneys are very skilled at challenging medical experts and scientists in order to put a great defense up for you.
If you are determined to put forth a great drunk driving defense, then it would be very wise to hire a drunk driving attorney. These attorneys are very skilled at challenging medical experts and scientists in order to put a great defense up for you.
It has become very hard to successfully fight a drunk driving charge these days, however. If the police have some evidence against you in the form of a failed chemical test, you have a tough fight in front of you. If you think that you are guilty, it may be your best bet is to try to get some kind of plea deal with the prosecutor assigned to your case.
I was stopped at a roadblock and asked to wait to answer some questions. Was this legal?
If the police used some sort of neutral policy for picking out which cars to stop, then it was legal. Police are allowed to single out automobiles at roadblocks if they have a good reason to do so, such as a suspicion that you are driving under the influence.
If the police used some sort of neutral policy for picking out which cars to stop, then it was legal. Police are allowed to single out automobiles at roadblocks if they have a good reason to do so, such as a suspicion that you are driving under the influence.
What different methods are used to measure blood alcohol concentration (BAC)?
There are five different bodily samples that can be screend for a DUI suspect's BAC level: urine, saliva, hair follicles, blood and breath. However, only breath analysis (i.e. breathalyzer) and blood screening are broadly used by law enforcement for gathering evidence. As blood screening is considered more invasive, this method is used less often than breath analysis (mainly after a serious accident or where the suspect has refused a breath test).
There are five different bodily samples that can be screend for a DUI suspect's BAC level: urine, saliva, hair follicles, blood and breath. However, only breath analysis (i.e. breathalyzer) and blood screening are broadly used by law enforcement for gathering evidence. As blood screening is considered more invasive, this method is used less often than breath analysis (mainly after a serious accident or where the suspect has refused a breath test).
How do breathalyzer tests work?
There are different machines on the market used for analyzing a DUI suspect's blood alcohol concentration. Some, though rarely used today, employ what is called a "wet chemical" technique to compare one's breath to a sample. The most current generation of breath analysis machines (still commonly referred to as "breathalyzers"), analyze the alcohol content of exhaled vapor through a method called infrared spectroscopic analysis.
There are different machines on the market used for analyzing a DUI suspect's blood alcohol concentration. Some, though rarely used today, employ what is called a "wet chemical" technique to compare one's breath to a sample. The most current generation of breath analysis machines (still commonly referred to as "breathalyzers"), analyze the alcohol content of exhaled vapor through a method called infrared spectroscopic analysis.
The latter method of analysis is based on the scientific principal that captured alcohol vapor absorbs light waves of a particular frequency in the presence of light, depending on the amount of alcohol present. A computer translates this data into the more familiar BAC measurement used to determine the level of alcohol in a person's bloodstream (for example, 0.08 percent BAC).
How accurate are they?
While they are not as accurate as blood tests, breathalyzers have been considered acceptably accurate by most courts as tools for gathering evidence. However, some independent studies have determined that breath readings can vary by 15 percent from actual BAC levels (as measured by a blood draw). Some courts have even thrown out breathalyzer results, calling into question the reliability of the machines.
While they are not as accurate as blood tests, breathalyzers have been considered acceptably accurate by most courts as tools for gathering evidence. However, some independent studies have determined that breath readings can vary by 15 percent from actual BAC levels (as measured by a blood draw). Some courts have even thrown out breathalyzer results, calling into question the reliability of the machines.
In 1988, a New Jersey court cited the following scientific evidence: (1) high readings for 14 percent of the population due to design flaws; (2) variance in results based on the temperature of the machine itself; (3) different results from the varying body temperatures of test subjects and (4) variances in the presence of hematocrit in the blood also affecting test results. Accuracy also can be hampered by the use of an improperly calibrated machine.
Can you beat a breathalyzer test if you're intoxicated?
No. Some popular methods thought to help individuals fool a breathalyzer test, including the ingestion of breath mints, mouthwash, onions and even pennies, have been shown not to work. Mouthwash (which often contains alcohol) may actually have a tendency to raise a person's BAC.
No. Some popular methods thought to help individuals fool a breathalyzer test, including the ingestion of breath mints, mouthwash, onions and even pennies, have been shown not to work. Mouthwash (which often contains alcohol) may actually have a tendency to raise a person's BAC.
Is it possible to successfully challenge breathalyzer results in court?
Absolutely. Breathalyzer machines must be tested routinely to make sure they are properly calibrated. A skilled DUI lawyer will look into the maintenance records of the device used to test his or her client and otherwise determine the validity of the evidence.
Absolutely. Breathalyzer machines must be tested routinely to make sure they are properly calibrated. A skilled DUI lawyer will look into the maintenance records of the device used to test his or her client and otherwise determine the validity of the evidence.
How accurate are those small, inexpensive BAC-testing devices sold to consumers?
It depends. There is a wide range of products available, some more accurate than others, but it's always best to assume they may be a little off (and they may not be used as as a defense to DUI charges). Saliva alcohol test strips are considered to be among the most accurate consumer BAC tests, since the amount of alcohol in one's bloodstream closely corresponds to the concentration of alcohol in the saliva.
It depends. There is a wide range of products available, some more accurate than others, but it's always best to assume they may be a little off (and they may not be used as as a defense to DUI charges). Saliva alcohol test strips are considered to be among the most accurate consumer BAC tests, since the amount of alcohol in one's bloodstream closely corresponds to the concentration of alcohol in the saliva.
Can I refuse a breathalyzer test?
If you refuse a Breathalyzer test, you will most likely face serious consequences. For instance, if you are stopped by an officer who believes you are intoxicated, and you refuse to submit to a test to determine blood-alcohol concentration (BAC), you may risk having your license suspended or even face jail time.
While you are not under arrest at this point, refusing a Breathalyzer may not be such a great idea and prosecutors may still base a potential DUI/DWI charge on other evidence collected at the scene, including officer observations, witness testimony, or the results of a field sobriety test.
Implied Consent Laws
Since driving is considered a privilege and not a right, states may suspend or revoke your driver's license, levy fines, or even put you in jail for not submitting to a BAC test when suspected of a DUI. Under "implied consent laws," drivers have implicitly consented to a BAC test in exchange for driving privileges. Therefore, you essentially surrender your driving privileges if you refuse a Breathalyzer.
If you refuse a Breathalyzer test, you will most likely face serious consequences. For instance, if you are stopped by an officer who believes you are intoxicated, and you refuse to submit to a test to determine blood-alcohol concentration (BAC), you may risk having your license suspended or even face jail time.
While you are not under arrest at this point, refusing a Breathalyzer may not be such a great idea and prosecutors may still base a potential DUI/DWI charge on other evidence collected at the scene, including officer observations, witness testimony, or the results of a field sobriety test.
Implied Consent Laws
Since driving is considered a privilege and not a right, states may suspend or revoke your driver's license, levy fines, or even put you in jail for not submitting to a BAC test when suspected of a DUI. Under "implied consent laws," drivers have implicitly consented to a BAC test in exchange for driving privileges. Therefore, you essentially surrender your driving privileges if you refuse a Breathalyzer.
States will generally penalize drivers for refusing to take the test by suspending their license for up to 12 months, depending on the state. Those with past DUI convictions usually face even longer suspensions or jail time. However, some drivers may decide that the penalty for refusing a BAC test is less severe than a third or fourth DUI conviction.
On average, 20 percent of those suspected of driving under the influence refuse to take a BAC test, according to the National Highway Traffic Safety Administration (NHTSA). But wide variances in state-by-state refusal rates (for example, 2.4 percent in Delaware and 81 percent in New Hampshire) suggest wide variances in how implied consent laws are enforced.
'No-Refusal' Enforcement
In response to drivers who refuse a Breathalyzer test to avoid incrimination, some states have adopted "no-refusal" policies, which force suspects to submit to testing under the authority of a warrant. The ability of police officers to procure electronic warrants on their mobile devices from a judge solves the problem of the suspect sobering up before a paper warrant can be physically obtained.
More than half of all states have the legal authority to enact no-refusal DUI enforcement policies, but not all states actively put such policies in place. See "No-Refusal DUI Enforcement" for more information.
Some states may permit drivers to contact an attorney prior to deciding what chemical test to take after a traffic stop. Check with the laws in your state and local jurisdiction for more details.
Source: FindLaw
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