Ten Most Frequently Asked Questions About Drunk Driving Cases

1. Q: Do I have to take field sobriety tests if asked to do so by a police officer?

A: No. Field sobriety tests must be done (in order to be admissible) on a voluntary basis. The police officer is not allowed to force you to do them. Keep in mind that statements that you make as reasons for not voluntarily participating in field sobriety tests may be admissible at trial. Statements like "I couldn't do that even if I was sober" may prove to be as, if not more, harmful than failing the tests. If you do not wish to attempt the tests, you may simply decline the police officer's request that you voluntarily participate.

2. Q: Should I submit to chemical testing at the officer's request?

A: If you refuse to submit to chemical testing, you will receive an administrative suspension (prior to your court date) of at least 275 days. Even if you request an administrative hearing, the suspension will remain in effect until the date of the hearing. If you lose the administrative hearing, you will not be eligible for a work restricted license until 180 days have passed. You will also have to complete counseling in order to receive a work restricted license.

In the criminal case, if you are convicted, and if you refused to be tested, you will receive an additional license suspension of at least 90 days and a minimum jail sentence of four days and a fine. Penalties for multiple offenders are more severe.

If you take a test, the administrative suspension will be 90 days at a minimum (first offenders). However, unlike people who refuse testing, you will keep your license until the date of the administrative hearing. Even if you lose that hearing, you are entitled to a work restricted license immediately (processing takes about 10 - 14 days).

In the criminal case, if you are convicted, and if you took a test, there will be a minimum license suspension of 90 days. You may obtain a restricted license for the last 30 days if you have completed counseling (the degree of counseling varies depending on the test result). You will also receive a fine (minimum $400) and a minimum 48 hour jail sentence if the result is a .15% BAC or higher. These are minimum penalties. People with prior convictions are subject to higher fines, longer suspensions and longer jail sentences as are people whose cases involve other aggravating factors.

3. Q: Should I admit to or deny drinking alcohol if asked by a police officer?

A: The officer can not tell how much you have had to drink by smelling your breath. However, if he is asking, he probably smells it. Even drinking a small amount of alcohol results in "an odor of intoxicating liquor" on the breath for a relatively long period of time. Lying to the officer may be considered "consciousness of guilt" by a jury and/or undermine your credibility at trial.

Remember, you are afforded a constitutional protection against self incrimination. You may simply tell the officer that you do not wish to answer his question. Likewise, you may tell him what you have had a drink if it was a relatively small amount (ie. not enough to impair you or cause you to exceed the legal limit).

If you are inclined to deny drinking when, in fact, you have been, remember that the police officer will be inclined to trust his nose more than his ears.

4. Q: Is the police officer's failure to give me Miranda warnings fatal to the State's case?

A: Not necessarily. The officer is only required to provide you with Miranda warnings when, and if, the following occurs:

• 1. You are in custody (the roadside investigation is rarely deemed to be custodial), and
• 2. You are being interrogated (ie. asked questions which are designed to illicit incriminating responses).

The remedy for Miranda violations is that the State is not allowed to introduce your answers/statements that were obtained by that violation in its case-in-chief. There is no automatic dismissal of the charges.

5. Q: Do I get to choose among the different chemical tests?

A: Under most circumstances you do not. The officer is allowed to require a breath test unless it is deemed "unreasonable." If you are allowed a blood test, you may have "a physician" draw your sample, if "a physician" is reasonably available. Police officers have been misled to believe that you may only chose a doctor if it is your doctor and he/she is reasonably available.

6. Q: How do I pick a lawyer to defend me against charges of drunk driving - OUI, DUI, or DWI?

A: Shop around. Drunk driving defense is a special field of criminal defense which, in turn, is a special area of the practice of law. Do not be afraid to ask lawyers tough questions; make sure the lawyer whom you pick has won drunk driving trials and is willing to try cases that ought to be tried. Do not choose a lawyer who appears to simply want your money and not represent you zealously and fairly.

7. Q: If my test result is a .08% or higher, am I automatically guilty?

A: No. Please click on my sample cases. Breath testing and blood testing are often inaccurate methods of calculating a person's true blood alcohol concentration.

Sometimes the BAC at the time of testing does not accurately reflect that person's BAC at the time of driving. Other times the test result is just wrong due to errors on the part of the person taking the sample, other chemicals being reported as alcohol, contamination, and/or failure to maintain proper protocol in calibration checking of the testing instrument, etc.

8. Q: Am I entitled to the advice of an attorney before deciding whether or not to submit to chemical testing?

A: No. However, some officers (very few) will give you a chance to call a lawyer.

9. Q: How much does it cost to hire a lawyer to defend me?

A: It depends on the lawyer and the circumstances of the case. We charge flat fees to cover your legal expenses through a jury verdict if the case goes that far. There are additional fees for expert witnesses (usually a forensic chemist) and private investigators. We only use experts and/or investigators after first consulting with you regarding the costs and benefits of retaining them.

10. Q: Why should I hire a lawyer?

A: Drunk driving defense is a highly specialized field within the general practice of criminal defense and law, in general. You are permitted, or course, to represent yourself. Many lawyers will take your case and be unaware of potential defenses due to their lack of knowledge in drunk driving defense as opposed to other areas of practice. If you are serious about your case, you should hire someone with the experience and ability to defend you zealously and effectively.