OVI / DUI Overview

Driving under the influence (DUI), driving while intoxicated (DWI), and driving while ability impaired (DWAI) are all terms used to refer to drunk driving or driving under the influence of drugs. DWAI is a less serious offense than DUI or DWI, but the consequences can still be very serious. To keep things simple, we will refer to DUI and DWI as DUI from here forward. When there is no accident, injury, or other crime involved, a first offense DUI is usually a misdemeanor, but it takes very little for the charge to be elevated to a felony. Even as a misdemeanor, the consequences of DUI are disproportionately harsh when compared to other types of criminal charges.

 

Understanding DUI Law

Every state has DUI laws. The laws are different in each state, but there are some similarities. Typically, any adult driving with a blood alcohol level (BAC) of .08 or above is considered DUI.

The penalties for a first offense are stiff, and in many states they become increasingly severe with repeat offenses. In most states, simply being charged with DUI can result in immediate suspension of your driver’s license.

DUI Laws Are Unusually Harsh

DUI charges present some unique challenges, and the laws are enforced with disproportionate vehemence, as compared to most other criminal laws. DUI enforcement is a very profitable business for law enforcement agencies, other government agencies, and many private entities as well.

Although you have been told all of your life that one of the beautiful things about being an American is the presumption of innocence in criminal charges, that you will be treated as innocent until proven guilty, DUI laws do not work that way. There are several aspects to DUI laws that can cause you to face serious penalties simply for being accused or suspected of DUI.

Many states deal out severe penalties for refusal to take a breath or blood test to determine your BAC. To make that even more confusing, different states have different definitions of refusal. In some states you can receive a jail sentence for refusing to take the breath test, even if you are not prosecuted for or convicted of DUI.

DUI Defense

Working with an experienced DUI defense attorney is crucial because when you are charged with DUI you face issues other than the criminal charges. Your license may have been automatically suspended, and you may need to request a hearing with the Department of Motor Vehicles (DMV) within a very short time frame, in order to get your license back while you fight the criminal charge, or to get permission to drive back and forth to work.

In many cases it is possible to beat DUI charges, especially with the heavy handed enforcement tactics that are encouraged but are not always legal.

Prosecutors will try to compound your DUI with other charges to escalate the charge to a felony from a misdemeanor. Many do this inappropriately in the hopes that you will accept a plea agreement to the lesser charge out of fear, improving their conviction rate.

DUI Politics and Profit

The original intent of DUI law was to protect innocent victims from a very real and unnecessary safety hazard that to this day kills thousands of people each year. Unfortunately, DUI enforcement has become a very profitable industry, while at the same time being shielded and supported by public sympathy. This combination can make it very difficult to beat a DUI charge, even if you are a teetotaler who has never touched a drop of alcohol in your life.

DUI History

DUI charges present some unique challenges, and the laws are enforced with disproportionate vehemence, as compared to most other criminal laws. To understand the difficulty of defending against a DUI charge, you must first know a little bit about the history of DUI law.

Laws against drunk driving have been around almost as long as the automobile. However DUI enforcement did not become a priority until the 1980’s. Since then the laws have become increasingly strict, penalties have become more and more severe, and the methods that law enforcement are allowed to use in bringing DUI charges have incrementally grown in invasiveness, to the point that the general public has come to expect tactics that would have been considered unacceptable 30 years ago.

In the 1980’s Mothers Against Drunk Driving (MADD) began raising public awareness of the dangers of drunk driving. Its campaign resulted in tougher DUI laws and an increase in enforcement. MADD has mushroomed into a political powerhouse that successfully presses for tougher laws against drinking, not just drinking and driving. MADD’s effectiveness in winning public sympathy, who would dare oppose the grieving mother of a DUI victim, has short circuited most public outcry against the draconian DUI laws and Gestapo-like enforcement tactics we endure today.

Under pressure from the federal government, and with financial incentives, all 50 states and the District of Columbia have passed strict DUI laws and continue to make the laws and the penalties harsher as time passes.

DUI for Profit

Many jurisdictions have found ways to profit by exploiting DUI laws, and set quotas for law enforcement officers in making DUI arrests. Some agencies receive a payment for each DUI conviction. For instance, in Illinois agencies receive $100 for every first offense conviction and $200 for every second offense conviction.

Government agencies and entities that profit from DUI laws include, but are not limited to:

• Cities
• Counties
• States
• Law enforcement agencies
• Individual law enforcement officers

Private entities that profit from DUI laws include:

• Towing companies
• Interlock ignition manufacturers, installers, and maintenance companies
• Breathalyzer manufacturers
• Makers of other alcohol detection devices
• Alcohol education providers

Sobriety checkpoints are also very profitable and while they were ruled as a permissible violation of the Fourth Amendment in the interest of public safety, law enforcement agencies now use the checkpoints to stop drivers with no suspicion in order to enforce laws that are not related to public safety.

DUI Checkpoints

DUI checkpoints are also called sobriety checkpoints, or DUI roadblocks. If you remember anything you have learned about the Constitution, you are probably wondering how they get away with DUI roadblocks at all. The U.S. Supreme Court has deemed them permissible. DUI checkpoints are a cash cow. They are highly controversial, not only in the enforcement of DUI laws, but also because in many jurisdictions they are used primarily to enforce other laws.

Supreme Court Ruling on DUI Checkpoints

The Fourth Amendment to the Constitution is meant to protect us against unreasonable search and seizure. In 1990, the U.S. Supreme Court ruled that DUI roadblocks were not unconstitutional. It admitted that they are an infringement of our Fourth Amendment rights, but concluded that the violation was justifiable in the interest of public safety.

Some of the justices disagreed with the ruling. Justice Brennan, one of the dissenting justices said, “The most disturbing aspect of the Court's decision today is that it appears to give no weight to the citizen's interest in freedom from suspicionless investigatory seizures."

DUI Checkpoints Are Not Effective in Improving Public Safety

Now, 20 years after DUI checkpoints were ruled constitutional, the statistics do not support the ruling. Studies in some states have found that less than 1% of sobriety checkpoint stops resulted in DUI charges, and even fewer resulted in DUI convictions. Studies have also shown that the roadblocks are ineffective as deterrents and do not reduce DUI accidents or deaths.

They do, however, result in a large number of arrests and tickets for other violations and a large number of impoundments, all of which can bring in big profits for law enforcement and other government agencies, as well as the towing companies.

Some states, such as California, openly admit that they use the roadblocks for purpose of enforcing other laws, even though the Supreme Court only allowed them based on the excuse that drunk driving was such a grave danger that it justified infringement on our Fourth Amendment rights.

DUI Checkpoint Defense

Even though they are federally permissible, some states consider DUI checkpoints to be unconstitutional and do not allow them.

In states where they are used, challenging the constitutionality of the checkpoint can still sometimes be an effective defense against DUI and other charges. There are many potential defenses against a DUI charge arising out of a sobriety checkpoint stop.

DUI Breath Tests and Other BAC Tests

Although you can be arrested and charged with DUI based on the results of a breath test or blood test used to determine your blood alcohol content (BAC), it is not definitive proof in a court of law that you committed the crime. There are many reasons why and ways in which the test results can be inaccurate, and an experienced criminal defense attorney knows what to look for and how to disprove BAC test results in most cases. You should not refuse a breath or blood test. In some states the penalties for doing so are very high, even if you are not convicted of DUI.

Breath Test Refusal

Many people hold the mistaken belief that they can refuse the breath test or blood test without consequences. As DUI laws have become stricter and enforcement more aggressive, states have started imposing penalties on drivers who refuse these tests. In some states the penalty is relatively mild, such as suspension of your driver’s license or a fine. In other states you can be sentenced to jail time just for refusing the test, even if you are never prosecuted for DUI.

However, both breath and blood tests can be inaccurate for many reasons, and whether the results are accurate or not there are many reasons why they may not be admissible as evidence.

Breath Test Defense

Law enforcement agencies that use breathalyzers have a duty to maintain their devices and test them for accuracy on a regular basis. There are many steps your attorney can and should take to determine if the results are possibly inaccurate or inadmissible:

• Obtain maintenance and accuracy logs for the breathalyzer
• Obtain a record of the last date of calibration
• Find out if the machine may have been recalled
• Obtain certification record of the officer who operated the breathalyzer
• Determine the standard deviations and margin of error for the machine
• Have your breath sample retested by an independent lab

Blood Test Defense

Blood test results can be inaccurate if no preservative was used, allowing the blood to ferment and create alcohol. Other factors can affect accuracy including:

• Calibration of the machine used to test the alcohol level
• Margin of error
• Whether whole blood or blood serum was used
• What type of test was performed on the blood to determine alcohol level
• Failure to follow proper procedure in drawing blood
• Contamination
• Chain of custody of the blood sample

Just like breath tests, your blood sample should be retested by an independent lab.

DUI Questions

I was stopped in a DUI roadblock. Is that even legal?

Some states do not allow DUI roadblocks, also known as sobriety checkpoints, but most do. While it goes against all logic, in 1990, the U.S. Supreme Court ruled that DUI checkpoints are not unconstitutional.

However, if your DUI charge was issued during a DUI checkpoint stop you may have a more substantial defense than if you were charged during a normal traffic stop.

My driver’s license has been suspended even though I have not even gone to trial for my DUI charge yet. How is that possible?

Welcome to the crazy and complicated world of DUI law. When you are arrested for drunk driving you face more than just criminal charges. In most states, you have to fight the Department of Motor Vehicles (DMV) separately. Your DUI charge can trigger an automatic suspension of your driver’s license.

So what about the concept of “innocent until proven guilty”? This refers to the Fifth and Fourteenth Amendments to the U.S. Constitution which state that you shall not be deprived of “life, liberty, or property without due process of law.”

However, driving is legally considered to be a privilege, not a right. So, your driving privileges can be suspended without due process. You can request a hearing to reinstate your license or for a restricted license that will allow you to drive to and from work while your criminal case is pending.

Is there really a law against refusing to take a breath test or other blood alcohol content (BAC) tests?

That varies from state to state. Legally, you cannot be physically forced to submit to a breath, blood, or urine BAC test, but most states have some sort of penalty, either civil or criminal, for refusing a test. In some states you can be sentenced to jail time for refusing a BAC test, even if you are not prosecuted for or convicted of DUI.

Is DUI a felony or misdemeanor?

Typically, a stand alone DUI charge is a misdemeanor, if it is your first offense. DUI can become a felony charge under several circumstances including:

• If it is a repeat offense
• If you were involved in an accident that caused injuries or death
• If you were charged with other crimes in conjunction with your DUI, such as assault, probation violation, or resisting arrest

Prosecutors typically make every effort to elevate DUI charges to a felony charges in an attempt to intimidate defendants into pleading guilty to the lesser DUI charges so that they can get more convictions under their belt.

If you or a loved one has been arrested or charged with a crime, please call our experienced Cleveland Criminal Lawyers at 1-855-696-0727 or 216-696-0727. The initial consultation is free of charge. If we agree to handle your case, we will aggressively defend your rights and help you every step of the way in securing the best possible outcome. Sometimes the proper legal action very early in the process can stop prosecution in its tracks saving your time, money, and other hardships. Criminal cases can require rigorous investigation on behalf of the defendant, and involve strict deadlines. Please, contact us right away to ensure that you do not give up any of your precious legal rights.