DUI & FELONY DUI PRACTICE

DUI is a Criminal Offense

DUI is a criminal offense most often affecting individuals who are not typically involved in criminal activity. With frequent changes in DUI laws, it has become extremely difficult for individuals to gauge when one can drive, and when one should not. The most important point to remember is that: AN ARREST FOR DUI IS NOT A CONVICTION FOR DUI.

Is it Illegal?

Given the frequency of law enforcement ad campaigns, it would appear to many that it is illegal to drink and drive, however, it is not. Unfortunately, many in law enforcement have undertaken to arrest many individuals who have had anything alcoholic to drink, and sometimes those who have had nothing alcoholic to drink.

Under The Influence

The crime of DUI requires proof beyond a reasonable doubt that an individual has consumed enough alcohol or drugs, or a combination thereof, rendering the individual “impaired.” “Under The Influence” in the legal context means impairment to the extent that the person’s faculties to drive a motor vehicle are materially and appreciably impaired. The proof required for conviction, particularly when put up against a well prepared defense, is much, much more than “drinking and driving.”

DUI Defense

Additionally, apart from the factual defense, which includes challenging the Field Sobriety Tests and Breath Alcohol Datamaster machine, a DUI defense must include a thorough legal analysis. This includes the analysis of a host of legal issues currently in place which can prevent the prosecution of a DUI case for reasons not associated with whether an individual was impaired. This includes whether the proper procedures were followed in accordance with the mandatory video recording statutes, probable cause for the traffic stop, the maintenance records of the breath alcohol datamaster machine, Miranda warnings, and SLED policies and procedures for obtaining a proper breath alcohol sample. When a case involves alcohol testing by urine or blood, many other issues arise which must be investigated.

Terminology

Penalties:

Statutory Penalties:
The penalties for DUI have increased. The current statutory penalties are set forth below.

Ancillary Penalties:
Ancillary penalties associated with a DUI conviction include:

  • Suspension of Driving Privileges
  • Criminal Record
  • Expensive and Time Consuming Alcohol and Drugs Safety Classes (ADSAP)
  • 3 year requirement to carry expensive SR22 insurance policy
  • Requirement to install and maintain an Ignition Interlock Device

Administrative Penalties:

Administrative consequences often accompany a DUI arrest. Though an individual is permitted to refuse to provide a breath sample, doing so will result in a suspension of driving privileges and attending the Alcohol and Drug Safety Classes (ADSAP). This is equally applicable if an individual chooses to submit a breath sample, and that sample is a .15 or greater.

These penalties are instituted at the time of the refusal or registration of a breath sample of .15 or higher, however, an individual has a right to request a hearing to rectify this situation. Additionally, upon requesting the hearing, the individual’s driving privileges can be restored until the time of the hearing. The administrative hearing must be requested within 30 days.

Ancillary Penalties:
Ancillary penalties associated with a DUI conviction include:

Ignition Interlock:

Ignition Interlock requires an individual to have a device installed in the vehicle which prevents driving if alcohol is detected on the individuals breath. It is expensive to install, and also requires expensive routine checks.

Whereas this requirement once only applied to a conviction for DUI 2nd or greater, it now also applies to a conviction for DUI 1st offensewhere the individual registered a breath sample of .15 or greater.

Administrative Penalties:

Administrative consequences often accompany a DUI arrest. Though an individual is permitted to refuse to provide a breath sample, doing so will result in a suspension of driving privileges and attending the Alcohol and Drug Safety Classes (ADSAP). This is equally applicable if an individual chooses to submit a breath sample, and that sample is a .15 or greater.

These penalties are instituted at the time of the refusal or registration of a breath sample of .15 or higher, however, an individual has a right to request a hearing to rectify this situation. Additionally, upon requesting the hearing, the individual’s driving privileges can be restored until the time of the hearing. The administrative hearing must be requested within 30 days.

Offense BAC JAIL TIME COST
FIRST OFFENSE 08%
.10% to .15%
.16% or greater
48 hours to 30 days
72 hours to 30 days
30 days to 90 days
$400
$500
$1,000
SECOND OFFENSE 08%
.10% to .15%
.16% or greater
5 days to 1 year
30 days to 2 years
90 days to 3 years
$2,100 – $5,100
$2,100 – $5,100
$3,500 – $6,500
THIRD OFFENSE 08%
.10% to .15%
.16% or greater
60 days to 3 year 90 days to 4 years 6 months to 5 years $3,800 – $6,300
$5,000 – $7,500
$7,500 – $10,000
FOURTH OR SUBSEQUENT OFFENSES 08%
.10% to .15%
.16% or greater
1 year to 5 years 2 years to 6 years 3 years to 7 years