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Frequently Asked Questions about DUI Defense

Frequently Asked Questions about DUI Defense

1. What do police officers look for when searching for drunk drivers on the highways? The following is a list of clues based upon research conducted by the National Highway Traffic Administration:

    • Turning with a wide radius
    • Straddling center of lane marker
    • "Appearing to be drunk"
    • Almost striking object or vehicle
    • Weaving
    • Driving on other than designated highway
    • Swerving
    • Speed more than 10 mph below limit
    • Stopping without cause in traffic lane
    • Following too closely
    • Drifting
    • Tires on center or lane marker
    • Braking erratically
    • Driving into opposing or crossing traffic
    • Signaling inconsistent with driving actions
    • Slow response to traffic signals
    • Stopping inappropriately (other than in lane)
    • Turning abruptly or illegally
    • Accelerating or decelerating rapidly
    • Headlights off

         Speeding, incidentally, is not a symptom of DUI; because of quicker judgment and reflexes, it may indicate sobriety.

2. If I'm stopped by a police officer and he asks me if I've been drinking, what should I say? You are not required to answer potentially incriminating questions. A polite "I would like to speak with an attorney before I answer any questions" is a good reply. On the other hand, saying that you had one or two beers is not incriminating: it is not sufficient to cause intoxication -- and it may explain the odor of alcohol on the breath. That said, any affirmative admission to drinking alcohol may give the officer reasonable suspicion to further investigate a driver for DUI. The officer will likely invite the driver to perform “voluntary fields sobriety tests.”

3. Do I have a right to an attorney when I'm stopped by an officer and asked to take a field sobriety test? The law on this varies from state to state. As a general rule, however, there is no right to an attorney until you have submitted to (or refused) blood, breath or urine testing. In some states, such as Washington, there is a right to consult with counsel after being arrested and before deciding whether to submit to chemical testing at the station. While a refusal of a lawfully requested breath test at a police station will result in a driver license suspension, refusal of the road side portable breath test (PBT) will not result in a suspension. Don't confuse the two tests.  The PBT is voluntary because it is not accurate enough to be used as evidence against you in court. Submitting to a PBT may give the officer probable cause to arrest you, even if the reading is below .08.

4. What is the officer looking for during the initial detention at the scene? The traditional symptoms of intoxication taught at the police academies are:

    • Flushed face*
    • Red, watery, glassy and/or bloodshot eyes*
    • Odor of alcohol on breath
    • Slurred speech 
    • Fumbling with wallet trying to get license
    • Failure to comprehend the officer's questions
    • Staggering when exiting vehicle
    • Swaying/instability on feet
    • Leaning on car for support
    • Combative, argumentative, jovial or other "inappropriate" attitude
    • Soiled, rumpled, disorderly clothing
    • Stumbling while walking
    • Disorientation as to time and place
    • Inability to follow directions

 *While listed as indicators on the WSP DUI worksheet, NHTSA removed clues flushed face and bloodshot watery eyes from its list of indicators over 20 years ago. It is unclear why WSP continues to use these as clues.

5. What should I do if I'm asked to take field sobriety tests? There are a wide range of field sobriety tests (FSTs), including heel-to-toe, finger-to-nose, one-leg stand, alphabet recitation, modified position of attention, fingers-to-thumb, hand pat, etc. Most officers will use a set battery of three to five such tests. Unlike the chemical test, where refusal to submit may have serious consequences, you are not legally required to take any FSTs. However, a recent case in Washington now allows the State to use your refusal to submit to the field tests as evidence of guilt should you go to trial. However, simply understanding that passing the field tests is depends on the  subjective assessment of the officer, its best to politely decline, telling the officer that it is your understanding that most defense counsel advise against such tests.  The reality is that officers have usually made up their minds to arrest when they give the FSTs; the tests are simply additional evidence which the suspect inevitably "fails"; Thus, in most cases a polite refusal may be appropriate.

6. Why did the officer make me follow a penlight with my eyes to the left and right? This is the "horizontal gaze nystagmus" test, a relatively recent development in DUI investigation. The officer attempts to estimate the angle at which the eye begins to jerk ("nystagmus" is medical jargon for eye jerking); if this occurs sooner than 45 degrees, it theoretically indicates an excessive blood-alcohol concentration. The smoothness of the eye's tracking the penlight (or finger or pencil) is also a factor, as is the jerking when the eye is as far to the side as it can go. This field sobriety test has proven to be subject to a number of different problems, not the least of which is the non-medically trained officer's ability to recognize nystagmus and estimate the angle of onset. Because of this, and the fact that the test is not accepted by the medical community, it is not admissible as evidence in many states; it continues, however, to be widely used by law enforcement. It is admissible in Washington ad evidence of consumption only.

7. Should I agree to take a chemical test? What happens if I don't? The consequences of refusing to submit to a blood or breath test varies according to the state. Generally, there are three adverse results:

8. Do I have a choice of chemical tests? Which should I choose? Most states rely on either breath or blood test. In Washington, if drugs are suspected a blood test will be sought. You do have the right to have an independent test at your own expense and may ask for additional tubes of blood to be drawn. If a breath test is performed, you also may request an additional blood test at your own expense. Analysis of a blood sample is potentially the most accurate. Breath machines are susceptible to a number of problems rendering them unreliable in some circumstances Thus, if you are confident that you are sober and drug free, a blood sample is the wise choice.

9. The officer never gave me a Miranda warning: Can I get my case dismissed? The officer is supposed to give a 5th Amendment warning after he arrests you. Often, however, they do not. The only consequence is that the prosecution cannot use any of your answers to questions asked by the police after the arrest. Of more consequence in most cases is the failure to advise you of the state's "implied consent" law that is, your legal obligation to take a chemical test and the results if you refuse. This can effect the suspension of your license.

10. Is it true there are two ways to be convicted of a DUI in Washington? Yes, you can be convicted of DUI if the State or City proves one of two things:

  • That you were affected by alcohol to an appreciable degree while driving. No blood or breath test is required. Instead, law enforcement relies on observations such as driving, coordination, speech, behavior, and other witness testimony.
  • That you had an excessive blood-alcohol concentration above .08 or a THC level of 5 nanograms or more within two hours of driving. If you submitted to a breath or blood test you can be convicted of DUI even if you have no other impairment indicators. This is called a "per se" offense.

11. The officer took my license and served me with a notice of suspension and DoL hearing procedure after the breath test: How can he do that if I'm presumed innocent? Agreed, it is unfair. But the law in most states having a "per se" statute (see question #10) provides for immediate suspension and confiscation of the license if the breath test result is above the legal limit. You do have a right to a hearing to fight the suspension. In Washington, you must request that hearing within 20 of the arrest. After that time-frame has lapsed, you have waived your right to a hearing and a suspension will follow.

12. Can I represent myself? What can a lawyer do for me? You can represent yourself -- although it is not a good idea. "Impaired driving" is a very complex field with increasingly harsh consequences. There is a minefield of complicated procedural, evidential, constitutional, sentencing and administrative license issues. What can a lawyer do? Nothing (or worse) if he is not qualified in this highly-specialized field -- no more than a family doctor could help with brain surgery. A qualified attorney, however, can review the case for defects, suppress evidence, compel discovery of such things as calibration and maintenance records for the breath machine, have blood samples independently analyzed, negotiate for a lesser charge or reduced sentence, obtain expert witnesses for trial, contest the administrative license suspension, etc.

13. How can I find a qualified impaired driving lawyer? The best way to find a good DUI/DWI lawyer is by reputation. There are a few attorneys who have national reputations; these, of course, are expensive. Thus, the best approach is to ask other attorneys in the jurisdiction: Who is the best in the area? If you do not know any attorneys, go to the local courthouse and ask people like bailiffs, clerks and public defenders: Who would THEY go to if arrested for drunk driving? Contrary to popular belief, it is not a wise idea to obtain a referral from the local Bar association or referral service. You will typically be referred to the next person on the list. Instead, look for an attorney with advance training in DUI defense, especially if your case involves blood work or you have any medical conditions that may impact the breath test. When you meet with prospective attorneys, make sure the attorney has:

  • extensive experience in DUI/DWI litigation
  • a reputation for going to trial in appropriate cases, rather than just "pleading out" clients
  • provided clear financial terms of representation

14. What will it cost to get a lawyer? This varies, of course, by the reputation and experience of the lawyer and by the geographic location. As with doctors, generally, the more skilled the attorney and the larger the city, the higher the fee. A related factor is the amount of time a lawyer devotes to his cases: the better lawyers take fewer clients, spending more hours on each. The range of fees is huge. A general practitioner in a small community may charge only $1,000; a DUI specialist with a national reputation may charge $7500 and up. In addition, the fee may vary by such other factors as:

  • Is the offense a misdemeanor or felony?
  • If prior DUI convictions are alleged, the procedures for attacking them may add to the cost.
  • The fee may or may not include trial or appeals.
  • Administrative license suspension procedures may also be extra.
  • The lawyer may charge a fixed fee, or he may ask for a retainer in advance -- to be applied against hourly charges.
  • Costs such as witness fees, independent blood analysis, service of subpoenas, etc., may be extra.
  • Whatever the fee quoted, you should ask for a written agreement and make sure you understand all the terms.

15. What is the punishment for drunk driving? Again, this varies according to the laws of the state and the customs of the local jurisdiction. Generally speaking, in Washington, a conviction for a first offense will involve a fine, a license suspension or restriction, attendance at a DUI victim panel, obtaining a chemical dependency assessment, completing any recommended treatment, a minimum of 24-48 hours in jail and probation for five years. For a second offense, the consequences are significantly more serious. Additional punishment may involve community service, ignition interlock devices and/or impounding of the vehicle. For an example of punishment in DUI cases, see the sentencing chart for Washington in this section.

16. What is a sentence "enhancement"? Most states increase the punishment in drunk driving cases if certain facts exist. The most common of these is a prior conviction for the same or a similar offense -- within seven years of the current offense in Washington State. Other commonly encountered enhancements (which must usually be alleged in the complaint) include:

  • A child age 14 or younger was in the car at the time
  • The blood-alcohol concentration was .15% or higher
  • The defendant refused to submit to a chemical test at the station
  • There was property damage or injury. In most states, the existence of any personal injury caused by drunk driving elevates the offense to a felony. A death can trigger manslaughter or even, in a few states, second degree murder charges.

17. What is a "rising BAC defense"? It is unlawful to have an excessive blood-alcohol concentration (BAC) at the time of DRIVING -- not at the time of being TESTED. Since it takes between 45 minutes and 3 hours for alcohol to be absorbed into the system, an individual's BAC may continue to rise for some time after he is stopped and arrested. Commonly, it is an hour or more after the stop when the blood, breath or urine test is given to the suspect. Assume that the result is .12%. If the suspect has continued to absorb alcohol since he was stopped, his BAC at the time he was driving may have been only .08%. In other words, the test result shows a blood-alcohol concentration above the legal limit -- but his actual BAC AT THE TIME OF DRIVING was below.

18. What is "mouth alcohol"? "Mouth alcohol" refers to the existence of any alcohol in the mouth or esophagus. If this is present during a breath test, then the results will be falsely high. This is because the breath machine assumes that the breath is from the lungs; for complex physiological reasons, its internal computer multiplies the amount of alcohol by 2100. Thus, even a tiny amount of alcohol breathed directly into the machine from the mouth or throat can have a huge impact. Mouth alcohol can be caused in many ways. Belching, burping, hiccupping or vomiting within 20 minutes of taking the test can bring vapor from alcoholic beverages still in the stomach up into the mouth and throat. Taking a breath freshener can send a machine's reading way up (such products as Binaca and Listerine have alcohol in them); cough syrups and other products also contain alcohol. Dental bridges and dental caps can trap alcohol. Blood in the mouth from an injury is yet another source of inaccurate breath test results: breathed into the mouthpiece, any alcohol in the blood will be multiplied 2100 times.

19. What defenses are there in a DUI case? Potential defenses in impaired driving cases are significant due to the complexities of the offense. Roughly speaking, however, the majority can be broken down into the following areas:

  • Intoxication is not enough: the prosecution must also prove that the defendant was driving. This may be difficult if, as in the case of accidents, there are no witnesses to his being the driver of the vehicle.
  • Probable cause. Evidence will be suppressed if the officer did not have legal cause to (a) stop, (b) detain, and (c) arrest.
  • Incriminating statements may be suppressed if warnings were not given at the appropriate time.
  • Implied consent warnings. If the officer did not advise you of the consequences of refusing to take a chemical test, or gave it incorrectly, this may affect admissibility of the test results -- as well as the license suspension imposed by the motor vehicle department.
  • "Under the influence or Affect by". The officer's observations and opinions as to intoxication can be questioned -- the circumstances under which the field sobriety tests were given, for example, or the subjective (and predisposed) nature of what the officer considers as "failing". Too, witnesses can testify that you appeared to be sober.
  • Blood-alcohol concentration. There exists a wide range of potential problems with blood or breath testing. "Non-specific" analysis, for example: most breath machines will register many chemical compounds found on the human breath as alcohol. And breath machines assume a 2100-to-1 ratio in converting alcohol in the breath into alcohol in the blood; in fact, this ratio varies widely from person to person (and within a person from one moment to another). Radio frequency interference can result in inaccurate readings. These and other defects in analysis can be brought out in cross-examination of the state's expert witness, and/or the defense can hire its own forensic chemist.
  • Testing during the absorptive phase. The blood or breath test will be unreliable if done while you are still actively absorbing alcohol (it takes 45 minutes to three hours to complete absorption; this can be delayed if food is present in the stomach). Thus, drinking "one for the road" can cause inaccurate test results.
  • Retrograde extrapolation. This refers to the requirement that the BAC be "related back" in time from the test to the driving (see question #17). Again, a number of complex physiological problems are involved here.
  • Regulation of blood-alcohol testing. The prosecution must prove that the blood or breath test complied with state requirements as to calibration, maintenance, etc.
  • License suspension hearings. A number of issues can be raised in the context of an administrative hearing before the state's department of motor vehicles.

20. I have some questions about my DUI case. Where can I go for answers? An experienced drunk driving lawyer is the best source, of course. If you have been charged with a DUI in Washington State, Pewitt Law will provide you with a complimentary consultation. Short of that: go to a law library (at courthouses and law schools) and research DUI law and blood-alcohol analysis.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.