In the United States today, a little less than 2.5 percent of land is classified as an American Indian reservation.  Even though Indian reservations make up a relatively small part of land in the United States, the topic of criminal jurisdiction and criminal law concerning Indian reservations does come up from time to time and is worth considering, as it can be a complicated topic.

Entering Hualapai Indian Reservation (Photo credit: Wikipedia)

General Overview

In general, criminal jurisdiction related to Indian reservations is determined as follows:

Crime Committed on an Indian reservation, Individual Remains on the Indian reservation

The tribal police force will have jurisdiction to arrest the individual, as will Federal agents or state police officers such as Highway Patrol.  However, county or city police officers will not have authority to arrest the individual under these circumstances.

Crime committed on an Indian reservation, Individual Leaves the Indian reservation

The tribal police force will not have jurisdiction to arrest the individual.  However, Federal agents or state, county, or city police will have authority to arrest the individual.

Crime committed off an Indian reservation, Individual Enters an Indian reservation

The tribal police force as well as Federal agents and state, county, and city police will have authority to arrest the individual.

For example, assume an individual is driving while intoxicated on a road outside of an Indian reservation.  A County Sheriff observes erratic driving behavior that he believes may indicate the person is intoxicated.  Therefore, the County Sheriff begins to pursue the individual.  The individual drives onto an Indian reservation, where the County Sheriff continues pursuit until the individual pulls over.

Since the County Sheriff observed the suspected illegal behavior while the individual was outside of the Indian reservation, the County Sheriff has the authority to pursue the individual onto the Indian reservation and, if the facts prove out that the person was intoxicated, make an arrest on the Indian reservation for DUI.

The allowed extension of the jurisdiction of local law enforcement as noted in this example is to prevent a person from intentionally fleeing onto an Indian reservation in an attempt to escape the police.

Other Factors

Other factors may exist that complicate the general jurisdiction outline noted above:

• Tribal police force existence and powers

Some tribes do not have their own tribal police force, in which case local law enforcement may have additional jurisdiction to handle crimes committed on an Indian reservation.  In addition, some tribal police forces are recognized by the state and may therefore pursue individuals off their Indian reservation.

• Type of crime.

In cases where a crime is severe, possibly if it is a felony rather than a misdemeanor, local law enforcement may have additional authority to enter an Indian reservation and arrest the individual.

• Language in Indian treaty

Depending on the language in the treaty between the Indian tribe and the government, non-tribal police may have additional jurisdiction than what is outlined above.

Hiring a DUI Lawyer

Remember the information above is general in nature and should not be considered legal advice.  If you have been arrested or accused of a crime on an Indian reservation, you should seek the help of a criminal defense attorney, DUI attorney, or other legal representative as appropriate based on the crime.  Given the overlapping laws and jurisdictions of Indian reservations and the rest of the United States, it is important to have a knowledgeable attorney on your side to help determine what laws apply to your situation.

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Most drivers understand that they cannot operate a motorized vehicle with a blood alcohol concentration level of 0.08% or higher or driver with any amount of alcohol in their blood if they are too impaired to safely operate their vehicle, but public intoxication is also illegal if the individual is perceived to be a danger to themselves or another person.

A Kranz (wreath) of Kölsch beer. (Photo credit: Wikipedia)

For example, under the Texas Penal Code Section 49.02, public intoxication is defined as,

“A person commits an offense if the person appears in a public place while intoxicated to the degree that the person may endanger the person or another.”

Do I have to be given a BAC test or read my Miranda Rights?

Texas law does not require you to be read your Miranda Rights unless the police officer has you in physical custody and they are planning to interrogate you and they need to warn you about your rights to avoid self-incrimination.

Talk to a DUI lawyer if you have questions about how the elements of custody and interrogation are critical to whether or not you have to be read your Miranda Rights. Unfortunately, numerous crime dramas have given most individuals the false impression that they have to be read their Miranda Rights at the moment they are being arrested.

The police are also not required to provide you with a chemical test. They will instead generally rely on other types of physical evidence that you are intoxicated: slurred speech, blood shot eyes, stumbling, obnoxious behavior, etc.

What will the state have to prove for a public intoxication charge? They must prove that you were unable to care for yourself and you were a danger to either yourself or to another person.

How serious is a public intoxication charge?

If you have been arrested for public intoxication in Texas, according to the Texas Penal Code Section 49.02 (c) you will be charged a Class C Misdemeanor. Class C Misdemeanors in Texas are punishable by a fine not to exceed $500.00.

What if you have been convicted of more than 2 prior public intoxication charges? You can have your charged enhanced to a Class B Misdemeanor, which carries potential jail time of up to 180 days and a fine up to $2,000.

If you are minor who is under the age of 21 and you are arrested for public intoxication you will face, “the same punishment as if you had committed an offense under Section 106.071 of the Texas Alcoholic Beverage Code.” Without more information about what this means it is critical to understand that for multiple public intoxication charges as a minor you might face an enhanced Class B Misdemeanor which carries potential jail time of up to 180 days in jail and a fine up to $2,000.

Minors may also have their license suspended, have to pay fines, have to perform community service and be required to attend an alcohol education course.

Hiring a DUI lawyer to fight public intoxication

If you have been charged with public intoxication this may seem like a minor charge with limited long-term ramifications, but this may be one of those charges that can rear up later when you are applying for a new job or admissions to a college.

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Recently on our DUI forum a driver asked if they had the legal right to request a blood test after a drunk driving arrest rather than submit to a breath test. Whether or not the driver has the legal right to request a blood test rather than a breath test will depend on state law.

Blood tests – State laws vary

For instance, in Virginia, the breath test was established by the Virginia General Assembly as the main test for determining a driver’s blood alcohol concentration (BAC). Under Virginia law the driver will not have the choice to request a blood test. The law further states, however, that if the breath test is not “readily available” the driver may receive a blood test.

What about in other states? In the state of Texas the law enforcement officer has the option to decide whether they will administer a breath, blood or urine test to the driver. If you refuse to take the test offered by the officer but instead vocalize that you prefer another type of test this request can be viewed as a blood alcohol content (BAC) test refusal.

There is one more wrinkle in Texas state law as outlined in Section 724.019 of the Transportation Code. If you agree to take the chemical test offered by the officer you may also request an independent blood test be done. The test must be done within 2 hours of the DWI arrest by a qualified “physician, qualified technician, chemist, or registered professional nurse.” You also have the right to select this person.

Keep in mind, the state of Texas is not required to transport you to this person and the peace officer or a law enforcement agency is not liable for damages arising from a person’s request to have a blood specimen taken. Unfortunately, the state of Texas does not make it necessary for the law enforcement officer to notify you of your legal right to an independent blood test.

Forced Blood Withdrawal after Drunk Driving Arrest

As mentioned above, state laws vary in whether or not the driver will have the legal right to request the type of blood alcohol content test (BAC) they want to take after a drunk driving arrest, snf another interesting question is whether you can be forced to submit to a blood test against your will.

The answer is yes, in some states. In Florida, for instance, drivers may be forced to submit to a blood test if the police have established probable cause and causation requirements are met.

Another interesting question is whether or not the police can use “reasonable force” to gather the blood sample. States that allow a forced blood sample have various definitions about what they consider reasonable force.

What if I refuse the Blood Alcohol Content Test (BAC) after DUI arrest?

Most states have passed implied consent laws which require drivers who are arrested for DUI to submit to a blood alcohol test. If the driver refuses they are facing an immediate license suspension (which is separate from DUI penalties they will face if convicted of DUI).

In Texas, for instance, drivers who refuse the blood alcohol content test (BAC) will have their license suspended for 180 days for a first time DUI arrest.

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Mugshot of Mel Gibson taken on 28 July 2006. (Photo credit: Wikipedia)

Several times a week on our DUI forum we get questions from drivers who were arrested for drunk driving but who passed the blood alcohol concentration test or who had a very low BAC on the test. Many of the drivers want to know if they can beat their DUI charges.

If you have been arrested for drunk driving or driving under the influence of alcohol or drugs and the breathalyzer registers less than illegal amount of 0.08% you may still be convicted of DUI, but the officer will need sufficient evidence to prove that your driving was impaired and you were unable to safely operate your motorized vehicle.

Probable cause for a DUI arrest can include erratic driving, slurred speech and watery eyes. There is also a chance that a breathalyzer may register a 0.00 but the driver was impaired by drugs, which might not show up until a blood or urine test was given.

Fighting my DUI charges

What do you need to consider in your DUI arrest? First, consider if the officer has any evidence either obtained through a test, a search or a confession which can be used against you in court to prove that you were impaired and unable to safely operate your car.

If the state has evidence which proves you were intoxicated it is time to talk to a drunk driving lawyer and begin discussing possible defenses. For instance, is the state willing to reduce the charges or penalties? Is a dismissal possible? Are you eligible for a diversion program or plea bargain? If the state is not willing to work with your DUI lawyer and you think you have a great defense than it is time to discuss how best to defend yourself in court.

Other considerations after DUI arrest

Drivers who are not convicted of drunk driving may still face administrative penalties from the Department of Motor Vehicles in their state. If you were arrested but refused to take a blood alcohol content test after the DUI arrest you may face a license suspension, even if you are ultimately found not guilty of drunk driving.

So what if you know that you are not drunk and an officer asks you to submit to a blood alcohol content test? In many states refusing the test will result in a license suspension for up to one year. If this is your second DUI arrest you might face longer suspensions.

If your license has been suspended you must request a hearing, generally within a few days of the DUI arrest, to challenge the administrative hearing.

Should I contact a DUI lawyer?

If you were arrested for drunk driving and your breathalyzer and chemical test were below the legal limit and the state has little evidence that your driving was impaired it might be possible that the state will eventually drop the DUI charges and you would not need a DUI lawyer.

For most drivers, however, talking to a DUI lawyer will be one of the first steps they need to take after a DUI arrest. A DUI lawyer can review the evidence the state has and determine if it is worth it to fight your DUI.

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Should I have refused the blood alcohol content test?

Refusing a breathalyzer or chemical arrest may have been recommended years ago prior to states implementing administrative drunk driving penalties, but now, refusing to take a chemical test after a drunk driving arrest may result in severe DUI civil penalties.

What is an administrative DUI penalty?

Did you know that most states have implemented what they term administrative penalties for refusing a DUI? States have decided that it is a privilege not a right to drive a car. If you have a valid license you have given your implied consent to submit to a chemical test after a DUI arrest if asked to do so by a law enforcement officer.

What happens if you refuse? The penalties will vary by state but it is not unusual for you to have your license suspended for up to one year for a first time offense, longer if this is your second or third DUI arrest.

Administrative drunk driving penalties may be challenged, but it must be done right away, generally within days of the DUI arrest. Drivers may hire a DUI lawyer to present their case if they choose.

Failure to challenge the suspension will initiate an automatic license suspension after the temporary driving permit has expired. Keep in mind these administrative DUI penalties are separate from criminal drunk driving penalties which you might face if you are eventually convicted of drunk driving.

Does refusing chemical test help my chances of beating the DUI charges?

Many drivers hope that by refusing a blood alcohol content test they will avoid getting a DUI conviction

several liquor bottles Deutsch: einige Spirituosenflaschen (Photo credit: Wikipedia)

. A blood alcohol content test, however, may not be necessary to be convicted of drunk driving, although the blood alcohol content test (if it registers an illegal BAC) does help the prosecution’s case.

What else can the state use to prove that you were drunk and unable to safely operate a motorized vehicles?  Evidence of DUI can include bad driving, odor of alcohol on the driver’s breath, poor dexterity, loss of coordination, inability to follow directions, slurred speech, falling asleep while driving, admission of intoxication, and an inability to pass a field sobriety test.

How do I fight my drunk driving charges?

Most drivers who have been arrested for drunk driving contact a DUI lawyer. The DUI lawyer can evaluate the evidence of the drunk driving arrest and help you determine: 1) if the officer had probably cause to make the DUI stop; 2) if the BAC test (if taken) was administered correctly; and 3) all the other evidence of the DUI stop. If you failed the field sobriety test the DUI lawyer can evaluate if you have any other health conditions which may have made it difficult to perform the test correctly.

If, after evaluating your DUI arrest, the officer does not think you have a strong drunk driving defense they can also negotiate with the prosecuting attorney to potentially have the charges reduced or help formulate a plea agreement.

Unfortunately, as mentioned above, it is really best that you understand your state’s drunk driving laws prior to making a decision about whether or not to take the chemical test. Officers in many states are also legally required to notify drivers of the penalties if they refuse the test, allowing the driver to make a more informed decision.

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A half-drunk glass of beer (Photo credit: Wikipedia)

Charged with 4^th DUI- What do I do?

If you have been charged with a fourth drunk driving charge and you are convicted you are facing severe criminal penalties in all states. There are several steps you need to take immediately.

• Gather the information you have been given from your DUI arrest and thoroughly read it. Did your car get towed? Find out how to get it back.
• Find out when you are required to show up for all of your court appearances.
• If your license has been suspended by the Department of Motor Vehicles in your state find out how to challenge the administrative license suspension. This must be done within a specific number of days.
• Contact a DUI lawyer and schedule a meeting to review your DUI charges. Find out how much the DUI lawyer will cost and what services are included in their fees.
• Show up to all scheduled court appearances. Make sure you are dressed appropriately. Do not show up drunk.
• Research how the DUI legal process works and what the prosecution must prove to win their drunk driving case against you.

What do I discuss with my drunk driving lawyer?

It is illegal in every state to operate a motorized vehicle with a blood alcohol concentration of 0.08% or higher. You may also be arrested for DUI if you have consumed alcohol at any level and you are unable to safely operate your motorized vehicle.

The state generally gathers information about your drunk driving arrest through field sobriety tests and a blood alcohol concentration test. If you have a high BAC, if you have been involved in an accident, if you have a child in the car or if you are operating your motorized vehicle with a suspended license you may be facing higher drunk driving penalties.

Every aspect of your drunk driving charge should be discussed with your drunk driving lawyer. If they are familiar with your state’s laws and the prosecutor they may know more about your options for either pleading to a lesser charge or your chances of winning your DUI case.

What drunk driving penalties am I facing for a fourth DUI?

A fourth drunk driving charge can be significant: it generally signifies you have a problem with alcohol, in most states it can be a felony charge and you may be facing mandatory prison. Additionally, a felony conviction is likely to start hurting your chances to find employment. Employers generally perform a background check during the hiring process and are likely to find out you have been charged and convicted of a felony.

What penalties can you face? State laws vary, but in Virginia, for instance, you will be charged with a felony and you can face a mandatory one year prison term, a minimum $1,000 fine and a lengthy license suspension (and these are the minimum DUI penalties).

If you have been charged with a fourth drunk driving felony charge you do not need to panic but as mentioned above, it is time to find a great drunk driving lawyer and start thinking about significant changes that you may need to make in your life to make sure this does not happen a fifth time.

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Most drivers understand that they can be arrested in all states if they are operating a motorized vehicle with a blood alcohol concentration level of 0.08% of higher. This is considered a per se violation, and the driver can be arrested and charged with drunk driving even if they are not displaying any careless or dangerous driving behaviors.

Image via Wikipedia

We occasionally get questions on our forum from drivers who are confused about what type of vehicle constitutes a “motorized vehicle.” One driver wanted to know if it will make a difference if he was operating a motorcycle instead of a car when he was arrested for drunk driving. Although state laws can vary, it will not matter that you are operating a motorcycle instead of a car, this driver can still be arrested and charged with drunk driving.

What is considered a motorized vehicle?

As mentioned above, state laws vary, but we will discuss what the California Vehicle Code considers a vehicle. According to the Chapter 670 a vehicle can be, “A device by which any person or property may be propelled, moved or drawn upon a highway, excepting a device moved exclusively by human power or used exclusively upon stationary rails or tracks.”

As with many statutes and laws there can be some confusion and ambiguity which is clarified in case law. For example in Tomson v. Kischassey, it was decided that a bicycle was not considered a vehicle as long as it did not have a motor. Although in People v. Jordan, it was decided that if the bicycle had a motor it would be considered a vehicle.

The courts also decided that a wheelchair is not a vehicle although a tractor and a golf court can be considered a vehicle even though they travel at very low speeds. Generally, most states contend that if the vehicle has a motor that moves the vehicle on its own it can be considered a “motorized vehicle” as defined under DUI statute.

Arrested for drunk driving on a motor cycle, what next?

Whether you are arrested for drunk driving on a motorcycle, car, or boat, it is time to talk to a drunk driving lawyer. Steps may need to be immediately taken to challenge an administrative driver’s license suspension in many states. Administrative penalties may allow the Department of Motor vehicles (or comparable agency) to suspend your driver’s license for a refusal to take the chemical test or a failure of the chemical test regardless of whether or not you are ultimately convicted of DUI.

Criminal penalties for drunk driving vary and the DUI penalties you are facing for drunk driving on a motorcycle may include high fines, court costs, probation, suspended license, mandatory alcohol education courses or an installation of an ignition interlock device.

Drunk driving penalties have become more severe in recent years as lobbying groups such as Mother’s Against Drunk Driving (MADD) and other groups have petitioned the states for more severe DUI penalties. Do not try to fight this charge without legal help.

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Can I get a Plea Bargain for my Drunk Driving Arrest?

If you have been charged with drunk driving you may have considered a plea bargain. A plea bargain is offered by the prosecuting attorney.

Image via Wikipedia

What benefit is there for the prosecution? The state gets a conviction and they get to avoid the high cost of prosecuting the case. The state can also eliminate hundreds of criminal DUI trials that can clog up the court system costing millions of dollars in court costs.

There also may be benefits for you, especially if the prosecution has a strong case. In many states the state may be willing to lower the drunk driving charge to a reckless driving charge. If not, you might have the benefit of avoiding the risk of taking a DUI case to trial.

How do I know if a plea bargain is available for my DUI case?

The first thing to do after a drunk driving arrest is to talk to a DUI lawyer. It is seldom a wise choice to negotiate your own DUI plea bargain agreement with the prosecution without first seeking legal counsel. In some cases the prosecution may have a very weak case and you might have a high chance of beating the DUI charges if you go to trial.

DUI lawyers will also know what your options are in your state. Some states have rules that outline when the prosecution can offer a plea bargain, other states do not. Some states also allow judges to accept or reject plea bargains.

Is taking a plea bargain a good idea in my DUI case?

Unfortunately, depending on your state, a plea bargain may not be allowed. In some states there are mandatory, minimum punishments and penalties for DUI offenses. Additionally, if you have aggravating or enhanced factors in your DUI arrest the state may not allow a plea bargain.

When is a plea agreement potentially a good idea- if the state has a strong case against you. For instance, if you have a chemical test that is much higher than the illegal limit of 0.08% it may be hard to convince a court that you were not intoxicated.

When is a plea agreement potentially not a good idea? If the chemical test was below 0.08% and the prosecution does not have any other good evidence that you were intoxicated or were unable to safely operate your car. In this case you may have a strong case of winning your DUI case, and a plea bargain may not be necessary.

How do I negotiate my plea bargain after my drunk driving arrest?

As mentioned above, the first step is to talk to a DUI lawyer. Generally, the prosecution will send the plea offer to your defense attorney when they submit the DUI police report.

Is the first plea offer the best offer? Not necessarily and that is why it is good to talk to a DUI lawyer. If you are working with a DUI lawyer who is familiar with the prosecuting attorney’s offices and policies in your city or jurisdiction they will know the plea bargain guidelines used by the prosecution and can ensure you get a fair offer.

Although some prosecutors have strict guidelines and will not negotiate, some will. DUI lawyers can work with you and the prosecuting attorney to make sure you get the best possible plea bargain available.

Great DUI lawyers will also have a good reputation and track record for winning DUI cases. If there is a lack of evidence in your case they may be able to use this to their advantage to secure an agreement.

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Many drivers, who have been arrested for drunk driving, want to know if they are facing misdemeanor or felony charges and the potential penalties for a DUI conviction. The good news is that most drunk driving arrests and subsequent charges will be misdemeanor charges, although this is not always the case.

When is a driver charged with a felony DUI?

It is illegal in every state to operate a motorized vehicle with a blood alcohol content level of 0.08% or higher. It is also illegal to operate a motorized vehicle with any amount of alcohol in your system if you are not safely able to do so.

Drivers arrested for drunk driving will have their drunk driving offense classified as either a misdemeanor or felony. Felony charges are more serious criminal charges, and the fines and penalties of a felony DUI conviction will be more severe than a misdemeanor charge.

When can a driver expect to be charged with a felony? State laws vary significantly and it is important to talk to a DUI lawyer about your charges, but in general, felony charges may be assessed for the following:

• Causing injury or bodily harm to another driver or occupant
• Causing a death
• Prior drunk driving convictions within a specified time period (the amount of time varies by state). For instance, in the state of Kansas and Missouri drivers will generally be charged with a misdemeanor for their first and second DUI (assuming there are no other aggravating factors) but subsequent DUIs will be considered a felony drunk driving offense.
• Driving with a minor in the car (varies by state)
• Having a high blood alcohol content level (varies by state)

Why a felony conviction may have harsher long-term consequences

Obviously, as mentioned above, if you are convicted of a felony drunk driving charge you will face more severe penalties. For instance, in many cases you may have to spend more than a year in prison.

Some drivers also do not consider the simple stigma attached to being a convicted felon. For instance, many employers may have the right to access your criminal record during the hiring process and many companies have policies against hiring anyone with a felony on their criminal record. This can be especially true for anyone applying for a governmental position or a position working with young children.

Does a DUI lawyer charge more to defend against a felony DUI?

If you have been charged with a felony DUI this can increase the amount the drunk driving lawyer will charge to defend you. Felony DUI cases may require more time which can dramatically increase the rates.

Unfortunately, the more drunk driving arrests you have had or the higher the charges the more important it become to have great legal representation. Finding a great DUI lawyer who understands the possible penalties and fines you may face if convicted of a felony DUI is critical. Felony DUI convictions have life-long ramifications which make it imperative that you have the best DUI defense possible.

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What is an Administration license suspension?

Driving is a privilege and states have created implied consent laws which state that if a driver is arrested for drunk driving they have given their “implied consent” to submit to a chemical test if asked to do so by a law enforcement officer. Refusing to submit to the test or failing the test now brings about harsh civil penalties in most states.

Penalties for an administrative license suspension

The administrative penalties are civil not criminal penalties. They are separate from DUI criminal penalties a driver faces if they are eventually convicted of drunk driving, and they are brought by the Department of Motor Vehicles (or corresponding department) in each state.

Drivers who refuse to take the blood alcohol content test or who take the blood alcohol test and have a blood alcohol concentration (BAC) which is above the maximum amount legally allowed in (0.08%) will generally have their license suspended.

The amount of time a driver’s license will be suspended will vary by state. Some states only suspend a driver’s license if they refuse to take the BAC test, not if they fail the test. Other states suspend the driver’s license for both.

In most states the driver’s license is immediately confiscated by the law enforcement officer and the driver is given a temporary permit to drive.

Can I challenge the Administration License Suspension?

States allow the drivers to challenge the administrative license suspension but the challenge must be done within a specified number of days from receiving the notice. Drivers may hire a drunk driving lawyer to review their case and file the appeal of the suspension for them. Drivers may also have their DUI lawyer attend the hearing for them.

Although the administrative hearing

Image via Wikipedia

is not related to the criminal case, it does allow the chance for the DUI lawyer to review the evidence the state has against the driver and determine whether or not they are likely to be eventually convicted of drunk driving.

What happens at the Administrative Hearing?       

The administrative hearing will determine whether or not the police officers followed the legal procedures outlined in the implied consent laws. As mentioned above, this hearing has no impact on your criminal charge.

Drivers may have the opportunity to cross examine the witnesses and the DUI lawyer can notify the court if they believe there has been a violation of the implied consent statute.

If you have hired a DUI lawyer the hearing will provide them with the opportunity to present any evidence that the Department of Highway Safety and Motor Vehicles should not suspend your driver’s license.

Penalties for drunk driving

Before implied consent laws it was not unusual for most DUI lawyers to tell drivers to refuse to submit to all chemical testing. Now, with the harsh penalties for refusing a chemical test, drivers should be more cautious about refusing a BAC test. In some circumstances the BAC refusal can carry harsher DUI administrative penalties than taking the test and being charged with a DUI.

If you have been charged with drunk driving, contact a DUI lawyer immediately to find out the next steps for challenging your administrative license suspension.

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