Crime And Punishment
BASIC DUI/DWI LAWS
Driving Under the Influence: Driving under the influence of alcohol, or "drunk driving," is by far the most commonly encountered offense in the courts today. Defending against a charge of drunk driving is a tricky business. Defenders need to understand scientific and medical concepts, and must be able to question tough witnesses, including scientists and police officers. If you want to fight your drinking and driving charge, you're well advised to hire an attorney who specializes in these types of cases.
Basic DUI/DWI laws: Illegal Per Se Laws make it illegal in and of itself to drive with a BAC measured at or above an established level. Forty-nine states have established per se laws (Massachusetts is the exception). As of November 2003, 45 states, Washington DC and Puerto Rico had .08 as the established BAC level, while 4 states remained at the .10 level (WI, NJ, WV, and CO) In other words, it is illegal to drive a motor vehicle if a driver has a BAC level of .08 or .10, depending on the state. Research indicates that virtually all drivers show impairment in driving ability at .08 BAC, and the majority exhibit serious deterioration. Virtually all highway safety organizations and transportation safety agencies support .08 BAC, and in October 2000, Congress passed .08 BAC as the national standard for impaired driving regulations. States that do not adopt .08 BAC by a certain date will be denied a portion of their highway construction funds.
Misdemeanor or Felony: To begin with, drunk driving laws are categorized as either a Misdemeanor or as a Felony. We will focus on the Misdemeanor charges because they are the most common. Felony DUI/DWI is primarily charged in accident cases where personal injury resulted. A death can trigger manslaughter or even, in a few states, second degree murder charges.
The laws concerning "drunk driving" have changed radically over recent years. The person arrested today for driving under the influence of alcohol ("DUI", also referred to as "DWI", driving while intoxicated) faces bewildering procedures and potentially devastating punishment, punishment that can be more severe than in some felony cases. An experienced attorney who specializes in blood alcohol analysis and drunk driving cases can effectively handle criminal and administrative proceedings. It is an unfortunate fact, however, that many general practitioners or general criminal attorneys attempt to represent clients with little or no training or experience in this very complex field and the results are predictable.
Misdemeanor First Offense: Each state has its own laws specific to defendants charged with driving under the influence of alcohol or drugs and court administration of those laws also vary according to the customs and political environment of local jurisdictions. Generally speaking, a conviction for a first offense may involve a fine, a license suspension or restriction, attendance at a DUI education course for a period of time, and probation for perhaps one to three years. There is usually a short jail sentence on the books, but it is usually set aside in favor of probation.
Misdemeanor Second Offense: For a second offense, it almost certainly will involve some jail time. 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 California as published by the Auto Club of Southern California. Check with your local or state Auto Club for specifics in your state.
If you viewed the Auto Club chart, you saw that the range of punishment can be quite vast. What determines how much a judge will deviate from this chart or how much a district attorney will adjust will often depend on the circumstances of your individual case and the skill of your attorney in negotiating a plea bargain, if that is your strategy.
Within the range of penalties, the actual sentence in a drinking and driving case will often be affected by:
- The facts of the case
- Any policies of the local court and prosecutors
- The weaknesses in the case uncovered by the defense attorney
- The reputation of that attorney
- Having a prior conviction within seven years
- Speeding 20 mph over the limit
- Having a child under 14 in the car
- Having a blood-alcohol reading over .20%
- Refusing to submit to chemical testing
Dram Shop/Social Host Liability Laws state that a person who serves alcoholic beverages to intoxicated individuals may be liable for the damages caused by such individuals. In some states, a server may also be liable for injuries sustained by intoxicated individuals.
Zero Tolerance Laws: It is illegal for drivers younger than 21 to drive with any measurable amount of alcohol in their system—regardless of the BAC limit for drivers over 21. Many states set the limit for drivers under 21 at .02 BAC or below to help reduce legal challenges based on claims that mouthwash, gum or cold medicine can be responsible for a positive but very low BAC measurement. However, there is no evidence that such substances affect the standard breath analysis tests when conducted properly or that other challenges to the accuracy of alcohol detection equipment are valid. By late 1999, all states plus the District of Columbia had zero tolerance laws for youth.
Commercial Drivers Licenses (CDL): The Federal Motor Carrier Safety Administration (FMCSA) was established as a separate administration within the U.S. Department of Transportation under the authority of the Motor Carrier Safety Improvement Act of 1999. This organization develops, monitors, and ensures compliance with commercial driver licensing standards. The new federal CDL penalties for a first conviction or refusal to be tested while operating a CMV are a one-year disqualification from operating a CMV. Importantly, the same penalty applies even if the conviction is for operating a non-CMV. If transporting hazardous material, the suspension is three years. And, if that isn’t enough, a second conviction will lead to a lifetime disqualification. The laws for CDL holders are extensive and serious so if you’ve been cited or charged under this paragraph, seek competent legal counsel immediately!
Open Container Laws: These laws prohibit the possession of any open alcoholic beverage container and the consumption of any alcoholic beverage in the passenger area of a motor vehicle. In 1998, the Federal government took steps to encourage states to enact open container laws by passing the Transportation Equity Act for the 21st Century (TEA-21), which required states to enact open container laws by October 1, 2000 or lose a portion of their Federal-aid highway construction funds. To avoid having their funds transferred to other safety activities, states must certify that they comply with Federal requirements and that their open container law is in effect and being enforced. By April 2002, 30 states and the District of Columbia had open container laws in effect.
