Tag Archives: DUI Arrest

Texas DWI arrest and not read Miranda Rights?

Recently on our legal forum a user asked, “I was arrested a week ago for driving while intoxicated (DWI). I had gone to a bar with some friends and had a few beers and a few shots. When I was pulled over I performed a field sobriety test and later performed a chemical test. My BAC was over the legal limit. The cop arrested me for a Texas DWI. Never at any time during the Texas DWI arrest was I read my Miranda Rights. I thought the police had to do this at the time of the Texas DWI arrest. What will this mean for my DUI case?”

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Reinstating license after California DUI arrest

California drivers arrested for driving motor vehicles in California while intoxicated will have their California driver’s license confiscated by the police officer, who will then send a copy of the suspension notice to the California Department of Motor Vehicles (CA DMV) and a copy of their California DUI arrest report. The California DUI arrest report will also include the driver’s BAC test results. The driver has the legal right to operate motor vehicles for 30 days from the date of the administrative license suspension, assuming they had a valid California license and it was not expired.

California drivers may challenge their administrative license suspension by requesting an administrative hearing within 10 days of the California DUI arrest. If the DMV sets aside the administrative license suspension they will notify the California driver in writing.

Administrative License Suspension in California

 

The DUI process can be confusing, and many DUI defendants do not realize that the administrative license suspension by the DMV is separate from the court imposed DUI penalties if the California driver is convicted of a California DUI.

Assuming the driver does not face any additional DUI penalties after a California DUI conviction (which affects their right to drive), the driver may have their license reissued to them after they pay the reissue fee of $125 to the CA DMV and file proof of financial responsibility. If the Administrative review finds that the police officer did not have the right to suspend the driver’s license the license will be automatically returned to the driver.

Purchasing California SR22 Insurance

 

The CA DMV requires drivers who have either been involved in an accident without insurance, arrested for DUI or wet reckless or considered a negligent operator (had too many points on a California driving record) to purchase SR22 Insurance. SR22 is a special form of car insurance which provides additional liability coverage to “high risk” drivers.

California SR22 Insurance must be purchased and a copy of proof of insurance filed with the DMV prior to reinstating a driver’s license after an administrative license suspension.

License Reinstatement after the DUI criminal conviction and license revocation

 

As mentioned above, the administrative license suspension differs from the suspension which may follow a criminal DUI conviction. Drivers convicted of DUI, depending on whether it is the first, second or third DUI may have their California license suspended. After the revocation or suspension period ends the driver may apply for a reinstatement with the CA DMV. Steps to reinstate a California driver’s license after a DUI criminal conviction include:

1.    Taking the motor vehicles test again including the road test, vision test and written test

2.    Completing the drinking driver program for the first California DUI offense and a 18 or 30 month program for second or later DUI offenses or a comparable program.

3.    Pay the license reinstatement fee of $125 to the CA DMV.

4.    Purchase SR-22 insurance and forward proof to the CA DMV.

5.    Possible installation of an ignition interlock device on the driver’s motor vehicles

Driving Suspension for Chemical Test Refusal in California

 

California has increased the administrative DUI penalties for refusing to perform a chemical test after a DUI stop. For instance, drivers who are over the age of 21 who refuse to take a chemical test will face an automatic one year license suspension if it was their first DUI offense. A second DUI offense with a refusal (within 10 years) can result in a 2 year automatic license revocation and a third DUI offense (within 10 years) will result in a three year license revocation. These are administrative penalties only and are separate from driving suspensions which may occur after a DUI conviction in criminal court.

Rising BAC As A DUI Defense

While everyone knows that it is against the law to drive a vehicle with a blood alcohol concentration of .08% or higher, some people may not realize that, in some situations, the greatest determining factor of a driver’s BAC is when the driver takes the chemical test.

In other words, you can be driving your vehicle and be below the legal limit, but when you take a breath test at the police station an hour later, your result could be above .08%. Because it takes between 1 – 3 hours for alcohol to be absorbed into a person’s system, an individual’s BAC could continue to increase for a couple of hours after they are arrested for DUI and brought to the police station for the test.

Were you really drunk when you were driving?

Let’s look at a real life situation. Mary is at a “girl’s night out” dinner with a few friends. They eat supper and she sips her third margarita while enjoying her friends. Before she leaves, she quickly drinks the rest of her beverage which contains about .06% alcohol. Shortly after she leaves, the police pull her over and the officer smells the alcohol on her breath.

Mary performs pretty well on the field sobriety tests, but the officer places her under arrest and takes her to the station to give her a breath test an hour after she was first stopped. She blows a .09% and is charged with a DUI. Mary loses her license and pays thousands of dollars in fines, fees and increased insurance costs, but she may not have been over the legal limit while she was actually driving.

What was Mary’s BAC when she was driving? We will never know for sure. One thing we know…it wasn’t .09%. The body is either constantly absorbing or removing alcohol. Therefore, the BAC is either rising or diminishing.

On average, it takes about an hour for the alcohol to be fully absorbed into Mary’s system and reach peak levels. This is just an average and can vary widely depending on the person. Those last several gulps probably had little effect on Mary while she was driving, but as she sits at the police station waiting to take the chemical test, her BAC has been rising. For an average-sized woman, one drink tends to raise a body’s BAC by around .03%. The conclusion is Mary’s BAC was probably closer to .06% while she was actually driving.

Police and State legislature reaction to the rising BAC defense

To combat the “rising BAC” defense, officers will begin their DUI questioning by asking the driver exactly how many drinks they had, and most importantly, when they drank them. Police also try to test a driver as soon as they can.

State legislatures have helped the police by passing legislation that presumes a driver’s BAC level determined at the time of the test to be the same as when he was driving…as long as the police administer the chemical test within a specific time frame. This puts the burden of proof on the defendant.

If you have been arrested for a DUI and you think that you may have a “rising BAC” defense, contact an experienced DUI attorney in your area who can look at your situation and advise you of your best course of action.

When Is It Worth It To Fight My DUI?

Everyone who is arrested for a DUI must ask themselves: “Should I fight this DUI?” This decision will affect the rest of your life and should be carefully considered. The decision to make a plea or go to trial depends on several factors that are unique to each person and situation.

Did I have physical control of the car?

The first thing the prosecution must prove is that you were driving or had physical control of the vehicle at the time of the DUI arrest. If you had a normal experience of getting pulled over while driving, then this will be easy for the prosecutor to prove.

If you were involved in an accident, however, it may not be clear to the police who was driving because they showed up after the accident. Other circumstances that bolster your DUI case are multiple passengers, the owner of car is not who was charged with the DUI, and the keys are in ignition and not in anyone’s possession.

How Close to .08% Was Your BAC?

The prosecutor must prove you were over the legal limit when you were actually driving, not when the police got around to administering the chemical test. The closer you BAC was to .08%, the better your chances are of a successful result at DUI trial.

You usually take a breath, blood, or urine test anywhere from 30 min. to several hours after your DUI arrest. A person’s BAC rises and falls in the body. What if you drank a significant amount of alcohol shortly before you got into your car to drive? Your DUI attorney can argue that the alcohol did not have enough time to enter your blood stream to cause impairment while you were driving. You may have been over .08% at the time of the chemical test; but, there could be reasonable doubt whether your BAC was over .08% when you were actually driving.

Was the Breath Test accurately administered?

The breath test is subject to all kinds of challenges. The hand-held machine that police use on the streets is notoriously unreliable. There was a study conducted in Florida that showed that as many as 40% of breath test results were inaccurate.

The police do use a much more accurate machine at the police station, but if there were discrepancies between these two tests, this would show a weakness in the State’s case.

Were proper procedures followed for the DUI arrest?

Depending on your state, police are required to follow certain procedures when they administer chemical tests. For a blood test, did they clean the area with a non-alcoholic swab? For a breath test, did the police give you a fifteen minute observation period before they administered the DUI chemical test? Are the hand-held breath machines properly calibrated twice per week? Your DUI attorney knows all of the approved procedures and can challenge the validity of the DUI chemical test results if the police failed to administer the chemical test properly.

Should you plead guilty or risk taking your DUI case to trial? The honest answer is that it depends on the circumstances surrounding your DUI arrest. You should consult with an experienced DUI attorney in your area. He can look at your DUI arrest and tell you the best course of action for you and your future

Can I Get My DUI Reduced to a Lesser Charge?

You have been arrested for DUI. At first, you just wanted to put the experience behind you as quickly as possible. Pleading guilty to a DUI to get the DUI arrest and conviction behind you sounds appealing, but is it the best choice?

Every DUI arrest and surrounding elements are unique. Your individual situation may qualify you to have your DUI reduced to Reckless Driving, but the outcome is not guaranteed.

Advantages of Getting DUI Reduced to Reckless Driving

* A DUI conviction, in some states, could stay on your record for life. A Reckless Driving conviction does not carry the same social stigma as a DUI.

* A Reckless Driving conviction probably carries lower fines, but similar penalties as a DUI.

* Your insurance company may cancel your coverage if you get a DUI. One thing is certain: your rates will skyrocket with a DUI on your driving record.

* If your job requires you to drive, a DUI conviction may cause your employer to terminate you.

* A future employer may view you as a liability risk if they see the DUI on your record.

* If you were to get your current DUI reduced, and you were arrested again for a DUI in the future, then you would be treated as a first-time DUI offender.

Why Would the Prosecutor Reduce my DUI?

It is a common misconception that the judge is the one who has the power to reduce a DUI charge. In reality, only the prosecutor has the ability to modify the DUI charge.

If you are successful in getting your DUI reduced, your fines may be less, but you will face many of the same penalties. In other words, you may still be required to go to DUI School, take part in an alcohol evaluation program, and/or complete community service.

The prosecutor benefits from the deal because he averts an acquittal if the weak DUI case had gone on to trial. So, you avoid the DUI conviction, but you still get the valuable lessons on the dangers of drinking and driving and help with potential addiction issues, and the prosecutor can close the DUI case.

Can my DUI charge be reduced?

Every DUI arrest is unique. Contact a DUI attorney to review your DUI case.

* Did the police stop you because your driving indicated that you were impaired?

* Was the traffic stop lawful?

* Were any open containers of alcohol found in your automobile?

* Were you involved in an accident with injuries?

* They will request the police video of your field sobriety tests. Did you appear impaired?

* How did the police administer the breath, blood, or urine test?

* Did you refuse the chemical test?

* What was your BAC (blood alcohol concentration)?

* How much time elapsed between the DUI stop and the administration of the BAC test?

* Did you conduct yourself appropriately with law enforcement?

Many factors play a part in deciding if your DUI case is a good candidate for reduction. The only way to know for sure is to consult with a DUI attorney in your area.

New Hampshire Administrative License Suspensions

Any New Hampshire driver who drives or operates a motorized vehicle in the state of New Hampshire has given their implied consent to submit to a chemical test if they are arrested for a New Hampshire DUI. Chemical testing can include a test of the driver’s blood, breath or urine and may be administered by a law enforcement officer.

Prior to the chemical test the officer should notify the driver of their right to additional DUI testing and the consequences of a refusal to submit to the test. If the driver refuses to submit to the chemical testing this information can be used as admissible evidence in the New Hampshire driver’s DUI case.

What if the driver is either unconscious or unable to refuse the test? According to New Hampshire state law they are “deemed to not have withdrawn consent to chemical testing.”

Refusing a New Hampshire Chemical Test after a DUI Arrest

Drivers who refuse the chemical test will not be forced to take the chemical test but their license will be suspended. See below for more information.

First DUI Offense refusal

The driver may have their license suspended automatically for 180 days. If the driver was a commercial driver their license is automatically suspended for one year.

Refusal with prior DWI Conviction or Refusal

The driver may have their license suspended for 2 years. If the driver was a commercial driver their license is automatically suspended for 10 years.

Administrative License Suspension Process

After the chemical test refusal, the officer will serve notice of the suspension to the driver. The suspension will take effect 30 days from the date of the arrest. The driver will have their license confiscated by the police officer and it will be sent, with the DUI arrest report, to the department.

The driver should be issued a temporary license permit which will allow them to drive for 30 days.

Challenging the Administrative License Suspension

So can a driver challenge the Administrative License Suspension? Yes, the driver can request an administrative hearing to fight the license suspension. All requests for hearings must be done in writing within 30 days from the date of the notice of suspension. The letter for the hearing should detail why the suspension should be revoked. If the driver fails to make the hearing request in time, they lose their right to challenge the suspension.

If the administrative hearing is granted the hearing is generally held within 20 days after the request filing. Drivers may indicate whether or not they would like for the arresting officer to be present. If the officer is required to attend the hearing but does not appear, without good cause, the case may be dismissed and the order rescinded. Drivers must appear at the hearing or their license will be automatically suspended, without consideration.

What is the court considering in a New Hampshire Administrative License Suspension?

The issues the court will consider are limited to the following issues:

(a) Whether the officer had reasonable grounds to believe the arrested person had been driving, attempting to drive, or was in actual physical control of a vehicle, boat, or OHRV while under the influence of intoxicating liquor, narcotics, or drugs;

(b) The facts upon which the reasonable grounds to believe such are based;

(c) Whether the person had been arrested;

(d) Whether the person has refused to submit to the test upon the request of the law enforcement officer or whether a properly administered test or tests disclosed an alcohol concentration of 0.08 or more (or 0.02 or more if under 21);

(e) Whether the officer informed the arrested person of his or her right to have a similar test or tests conducted by a person of his or her own choosing; and

(f) Whether the officer informed the arrested person of the fact that refusal to permit the test would result in suspension of his or her license or driving privilege and that testing above the alcohol concentration level would also result in suspension.

Following the hearing the examiner will issue their recommendation for whether the driver’s license should be suspended or not. The recommendation is considering binding unless the driver files an appeal within 10 days. If an appeal is made by either the driver or law enforcement a review will done by a director who will make their determination within 10 days which will either grant a new hearing or affirm the previous ruling by the examiner.

How can I avoid jail time after a DUI arrest?

Alternative to Jail

If you have been convicted of DUI, there is a wide range of DUI penalties that you could face, including jail time. Is it possible to avoid jail time after a DUI arrest? Possible options that could serve as an alternative to spending a lengthy amount of time in jail are listed below.

Work Release

Work release allows you to work at a job site approved by the Probation Department during the day. After you complete the required hours, you will be allowed to go to your home at night.

Work Furlough

Work furlough permits you to keep your own job, but upon completion of the work day, you will go to a dormitory-style building to sleep at night. You will then be released the next morning to return to work.

Drug and /Or Alcohol Rehabilitation

In some cases, the DUI is a symptom of a drug or alcohol abuse problem. The judge may decide to send the DUI offender to a qualified substance abuse program. Talk to your DUI attorney about exploring this alternative to jail.

House Arrest

House arrest requires you to wear an electronic monitoring device, usually around the ankle. This ankle bracelet monitors the movements of the DUI offender through GPS so that authorities are alerted if they move out of an approved area. The DUI offender may be allowed to go to work, but must return home at the prearranged time.

Sober Living

This may be the best option for someone with multiple DUI convictions. The DUI offender moves in to a house with other residents who have a history of substance abuse problems. They are required to attend 12-step meetings every day, participate in household functions, and be responsible for chores that are assigned to them.

A New Law in Texas

State Representative Todd Smith along with Tarrant County Assistant D.A. Richard Alpert have drafted a new bill that, if it becomes law, would allow prosecutors to offer first-time DUI offenders mandatory counseling and probation in place of jail time. The Assistant D.A. says that alcohol-related arrests are all too common today and most of them do not involve injury or property damage. This is a way to move the more minor cases through the justice system without clogging up the courts.

Surprisingly, MADD has lent their support to this bill. MADD spokeswoman Mary Kardell said, “We want mandatory ignition interlocks for every DWI offender and that is in this bill.”

This deal does not mean that DUI charges are dropped. If the DUI offender gets arrested for a DUI again, he is charged as a repeat DUI offender.

Supporters of this bill say that it will help to clear out the courts of minor crimes so the judge can focus on more serious DUI offenders.