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DUI & DWI

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No matter what the name of the crime might be-DUI, DWI, OUI, or OWI-the first element of the crime is "driving," or "operating," a motor vehicle. This language is intended to describe the level of physical control a person has over the motor vehicle. In many states, operating or driving does not require that the vehicle actually be in motion, or even that the engine be running. A person who is found sitting behind the wheel of a car may be convicted of driving or operating the car while under the influence. Courts have even convicted people sitting behind the wheel of a car while it is being towed. Passengers are seldom considered operators or drivers unless they grab the steering wheel. Did you Know?
within as little as 10 days of your arrest you may automatically lose your drivers license by delaying your decision to hire an attorney?
As used in the drunk driving laws, the term "vehicle" is defined more broadly than just "motor vehicle." Usually, a "vehicle" is defined as anything that carries people or goods. A "motor vehicle" is something powered by a motor or engine. Either term can include cars, trucks, even motorboats. Most laws draw a distinction between inoperable vehicles and those that are only immobile-capable of moving, but not moving at the time. Legal distinctions such as this are one reason you need an experienced drunk driving defense attorney to give your case the careful analysis needed.

Another element of a drunk driving charge is the location of the offense. Older drunk driving laws often included limiting phrases, such as "on the public highways of the state." Many judges relied on that language to conclude that the drunk driving laws did not apply to someone driving on private property, including parking lots. Modern laws, however, require only proof that the offense took place within the boundaries of the state.

Proof of a Drunk Driving Charge

Drunk driving laws are intended to prevent the operation of a powerful and potentially dangerous machine when the operator cannot be in adequate control. Intoxication is shown in one of two ways:
(1) a blood alcohol level in excess of a certain amount, or
(2) proving that the driver or operator was impaired from the use of alcohol or illegal drugs.
The first method is the method preferred by prosecutors. The proof does not rely on anyone's observation or judgment of someone's behavior, but depends solely on the results of a blood alcohol test. Laws often require a person who is suspected of driving while drunk or using illegal drugs to give a sample of his or her blood or breath for chemical testing purposes. These laws are known as "implied consent" laws, because they provide that by operating a motor vehicle, the driver has given his or her consent to such a test. When a sample is taken, it is analyzed by a machine to determine the concentration of alcohol in a person's blood. The maximum blood alcohol level varies from state to state. For many years, the most common maximum level was .10 percent, but most states have now lowered the level to .08. Any driver or operator who has a blood alcohol level over the legal limit is considered legally intoxicated. The results of the test are usually considered conclusive, and can be challenged only by showing that the test failed for a reason such as faulty or malfunctioning test equipment, improper sampling, faulty preservation of the sample, or (in the case of a breath test) a foreign object in the mouth when the test was conducted. Impairment may also be proven by the facts and circumstances surrounding the incident for which the driver was stopped or arrested. These facts and circumstances include observations of the driver by eyewitnesses, statements made by the driver or operator, and circumstantial evidence (for example, evidence that a defendant left a bar after being inside for several hours). The inquiry focuses on whether the defendant's ability to drive was impaired. Law enforcement officers have a number of standard tests for impairment, done at the time a driver is stopped, known as "field sobriety tests." These tests include walking a straight line by placing one foot directly in front of the other, holding one's arms straight out at the sides and touching the nose with closed eyes, counting backwards, and reciting the alphabet. Other evidence of impairment may include a law enforcement officer's observation of the defendant's driving, which probably was the reason the driver was stopped in the first place. Conduct such as driving too fast or too slowly, weaving across lanes, and going through stop signs or stoplights may be considered evidence of a driver's impairment. Drivers often will tell an officer who stops them that they have been drinking, how much they've had to drink, and when they had it. Such statements may also be evidence of impairment.

Drunk Driving Penalties

In the last twenty years, the penalties for drunk driving have become far more severe than they were in the past. First-time offenders face potential jail time and fines, although often the penalty for a first-time offense will be something less than jail time in exchange for a guilty plea. Repeat offenders are usually treated more harshly, with substantial fines and mandatory jail sentences that may not be suspended or waived by the court. State administrative regulations often call for the suspension or revocation of a defendant's driver's license, in addition to any criminal penalty. Defendants have sometimes tried to make the argument that this administrative suspension is double jeopardy prohibited by the U.S. Constitution, but these arguments have never succeeded.

Conclusion

A drunk driving charge is a serious criminal charge. Most of us rely on the ability to drive to do many everyday things, such as getting to work, buying groceries, and transporting family members to activities like lessons, medical appointments, and school. A person who is charged with drunk driving stands an excellent chance of losing his or her driving privileges either temporarily or permanently, and also runs the risk of suffering more severe consequences, such as a fine or a jail sentence. If you have been accused of a drunk driving offense, contact an experienced drunk driving defense attorney immediately. You cannot afford not to have expert counsel on your side.

Frequently Asked Questions about Drunk Driving/DUI

Q: What is "blood alcohol level"?

A: Blood alcohol level (BAC) is a term used to describe the level of alcohol in the bloodstream of a person arrested for drunk driving. It is used in court as evidence of that offense. The most common method of determining BAC is through a breath test, although blood and urine testing is done in some instances. If the level is found to be at or over .10, or .08 in some states, the test results can establish a presumption of impairment.

Q: Can I refuse a Breathalyzer?

A: Although the answer can vary by state, in many cases, a refusal is itself a criminal violation subject to stiff penalties. In addition, if the case against you is proven, there may be additional penalties for the refusal, above and beyond those for the drunk driving offense.

Q: Are breath test results always accurate?

A: Some courts allow the defendant in a drunk driving case to challenge the scientific accuracy of Breathalyzer tests in general, whereas others may allow challenges based on the particular circumstances of a test, such as improperly calibrated equipment or inadequately trained officers. If the test results are inadmissible or can be challenged, the case will have to be proven based on other evidence, such as eyewitness testimony and field-sobriety test results.

Q: What if I lose my license but continue to drive?

A: If a person whose license has been revoked or suspended due to drunk driving chooses to drive without a valid license and is pulled over, he or she stands to suffer more serious consequences, including fines and imprisonment. The more prudent course of action is to rely on friends and family for rides or use public transportation.

Q: How can I get automobile insurance after a drunk driving conviction?

A: Although your rates will likely be higher, your insurer may continue to insure you even after a conviction. A subsequent clean driving record will result in lower rates in the future. If your insurer drops you as a result of the conviction, another insurance company may be willing to accept the risk. In fact, some companies specialize in offering insurance to drivers who have been convicted of drunk driving, but the rates are much higher.

Q: What is the punishment for drunk driving?

A: Drunk driving carries serious penalties. Although the court may go easier on first-time offenders, even in first-offense cases the possible sentences include stiff fines and jail time. If the circumstances warrant it, however, the court may choose less restrictive options, including probation, community service, or alcohol awareness or abuse counseling.. For subsequent offenses, the likelihood of imprisonment increases, and in all cases, the loss of driving privileges-at least temporarily-is almost guaranteed.

Q: How can I get to work if I can't drive?

A: Many drunk driving offenders are forced to rely on public transportation or rides from friends and family for transportation to and from work during periods of license suspension or revocation. In some cases, offenders may be granted a "hardship license," allowing them to drive just to and from work. However, if an offender is caught driving outside of those strict limitations, further penalties will be imposed.

Q: What is the best way to beat a drunk driving charge?

A: The best way to avoid being convicted of drunk driving is to not drink and drive. Use a designated driver, call a taxi, call a friend, or don't drink alcohol if you are going to need to drive within a few hours. For some people, even one drink can impair their driving abilities. Remember, after having a few drinks is not the time to decide whether you are capable of driving. However, if you have been charged with driving under the influence, an experienced drunk driving defense lawyer can work to improve the outcome of your case.

Q: If I simply intend to plead guilty, why do I need a lawyer?

A: Even if you are guilty of drunk driving, it is imperative that you seek the advice of experienced counsel so that you can minimize your sentence and maximize your opportunities to move ahead toward a brighter future. Criminal defense attorneys are needed to equalize the balance of power between the defendant and the prosecution and to ensure that the constitutional rights that are guaranteed to all criminal defendants are preserved.

Kevin M. Kelly Ltd.
3351 South Highland Drive, Suite 206
Las Vegas, NV 89109
(702) 385-7280
contact@kevinmkellyltd.com