“DUI”  refers to a driver whose ability to operate a motor vehicle is impaired due to the presence of alcohol and/or drugs in the driver’s system. Each state uses its own wording to describe drunk driving, including:

  • DUI: Driving under the influence
  • DWI: Driving while intoxicated
  • OUI – Operating Under the Influence
  • BUI - Boating Under the Influence

What is Drunk Driving?A driver will actually be charged with two offenses in a drunk driving case:

  • Driving under the influence of alcohol or drugs  – unable to drive safely due to impaired cognitive and motor skills
  • Driving with a BAC of .08 or higher
  • You Can be Charged With DUI Even if You are not Driving the Car:

    An offender can be charged with DUI in a wide range of circumstances – even when not driving the vehicle.

    • The driver need only exercise control over the vehicle
    • Even if the motor is not started or if the car is not in motion the driver may be exercising control over the vehicle


    DUI laws are strictly enforced in all states. One reason for the increased enforcement is due to lobbying efforts of organizations such as Mothers Against Drunk Drivers, or MADD. DUI checkpoints help to spot impaired drivers. However, it is essential to remember that every driver has constitutionally protected rights to due process and these rights need to be protected – every driver is innocent until and unless proven guilty.

    Field Sobriety Tests

    Field sobriety tests are conducted under difficult and nerve racking conditions right after you have been pulled over for suspicion of drunk driving. The driver is asked to submit to physically demanding tests, including:

    • Walk a straight line, heel to toe and toe to heel – frequently on gravelly, uneven pavement.
    • Stand on one leg for a period of time, balancing in the darkness of night or heat of day; ladies must do so in their high heels if they are wearing them. Professional athletes and gymnasts
    • Follow the beam of a flashlight that is pointed in your eyes at a close distance.

    You cannot be required or forced by authorities to take field sobriety tests. The officer often uses these tests in an effort to gather damaging evidence against you. DUI defense attorneys vehemently advise against taking roadside sobriety tests.

    What Happens if You Refuse to Take a Blood, Breath or Urine Test:

    • If you refuse to submit to a blood, breath or urine test your driver’s license will be suspended.
    • In California, as an example, the driver’s license suspension is one year.
    • The refusal to take the test is a violation of the implied consent law: every driver gives their consent when they receive their driver’s license.
    • Even if you win your DUI case, your license will still be suspended.

    License Suspension

    In most states there are two distinct proceedings that result from a DUI arrest. One hearing will be the actual court proceeding. The other hearing is an administrative license suspension hearing, usually held at the department of motor vehicles. The issues that are heard at the administrative hearing may include:

    • Factual determinations of blood alcohol concentration levels
    • Was a breath, blood or urine test provided to determine the BAC?
    • Was the defendant apprised of the implied consent laws and the consequences for refusing a chemical test?
    • Did the defendant refuse to submit to a chemical test?
    • Whether the arresting officer had reasonable cause to believe the driver was impaired

    The DUI Court Case:

    The arraignment is the official court hearing where the defendant is formally charged with DUI. The defendant will enter a plea of guilty or not guilty. This is an extremely important hearing because the defendant’s DUI attorney will have the opportunity to address specific issues related to the case. Your attorney:

    • May seek to suppress the introduction of evidence
    • May attempt to negotiate a plea
    • May seek an alternative to the original charge

    If a plea is entered and agreed upon by the prosecutor, the defendant will be responsible for adhering to the stipulations, such as the payment of fines, attendance at alcohol classes and community service. If a plea is not reached and you choose to take the case to trial, your lawyer will proceed with selecting a jury. Appropriate witnesses and parties will be called to the stand to testify. Prosecution and defense attorneys will examine the witnesses, including the arresting officer. Ultimately the case will go to the jury and their verdict will be announced. If the defendant is not guilty, the case will be dismissed. If the defendant is guilty the judge will impose a sentence and any relevant sanctions such as community service.

    Underage DUI and Zero Tolerance

    In many jurisdictions, individuals under the age of 21 are subject to zero tolerance laws. For example, in California, harsh penalties apply:

    • BAC of 0.01% or higher will result in a DUI
    • BAC of 0.05% or higher will result in underage DUI and DUI
    • Drivers 18 or younger: one year suspension, or until age 18, whichever is greater
    • An underage driver’s vehicle can be confiscated by the court
    • Refusal to submit to chemical test will result in one year suspension

    Ignition Interlock Device

    It is more and more common for courts to mandate the installation of an ignition interlock device in any car driven by a convicted DUI offender. The IID is wired to the vehicle’s ignition and requires the driver to breath into the mouthpiece before the car will start. The breath must be free of alcohol or the car won’t start. In addition, the driver must provide breath samples periodically during periods of driving. The IID must be calibrated at regular intervals to ensure proper functioning.

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    Michael S. Berg
    Attorney At Law