DUI Law Handbook

Understanding DUI Arrest



The Centers for Disease Control and Prevention report that 10,076 people died in alcohol-related motor vehicle accidents in 2013. This figure represents approximately 31 percent of all traffic-related fatalities in this country. Driving while under the influence of alcohol or drugs can pose a  significant danger to the community. Whether you are involved in a DUI accident or you are wrongfully suspected of driving under the influence, this handbook helps explain your rights.


For Victims of DUI Accidents


Sometimes alcohol is a contributing factor in an accident. If you are the victim of an accident involving alcohol, be certain that you take the following steps to ensure that you protect your legal rights: 

  • Contact the police – This helps ensure that there is a report made and may begin the process of an investigation.
  • Take notes – Write down all of the pertinent information about the accident as soon as possible. Include your account of how the accident happened, along with any suspicious activity, such as the other driver swerving in and out of lanes, speeding up and slowing down repeatedly or staggering out of the vehicle. 
  • Get other driver’s information – Request the driver’s name, telephone number, contact information and insurance information. Write down the driver’s license plate number and a description of his or her vehicle. 
  • Talk to the police – Mention any suspicion that you have about the other driver being intoxicated. 
  • Contact a personal injury lawyer – Accident victims may be entitled to compensation for injuries that they suffered in DUI accidents. 

Wrongful Death Cases

Wrongful death cases are brought by family members who are affected by the loss of a loved one. State statutes determine which family members are able to pursue such claims and who is responsible for filing the claim, such as the executor of the decedent’s estate.

Damages may include: 
  • Lost wages
  • Lost support
  • Loss of benefits
  • Loss of companionship and consortium
  • Medical expenses
  • Burial expenses
  • Pain and suffering

These damages include amounts that are based on a purely economic basis as well as damages that a jury or fact finder determines. Punitive damages may be awarded in some cases when the jury or fact finder is wishing to punish the defendant for egregious behavior and prevent similar behavior in the future. The specific damages that are available are different in each case and are dependent on the particular circumstances involved in the case as well as state laws regarding personal injury lawsuits.

Winning a wrongful death case may rely on you successfully establishing the intoxication level of the defendant and that this amount surpassed the level at which the driver could safely operate the vehicle. This is known as establishing the driver’s breach of duty of care to act as a reasonably prudent driver would have acted in similar circumstances. If the defendant is convicted of a criminal charges for DUI, this information can assist you in a civil case. The burden of proof is higher in a criminal case, requiring proof beyond a reasonable doubt while civil cases have the burden of showing guilt by a preponderance of the evidence. The latter standard simply means that it is more likely than not that the defendant is guilty.


For Individuals Facing DUI Charges


If an individual is involved in an accident and alcohol contributed to the accident, he or she may face criminalDUIcharges. The level of the crime is based on state law, which usually provides a harsher charge for someone who caused another person to be killed or injured. This is usually a felony offense. In some jurisdictions, if the property damage is over a certain amount, this may also be a felony.

In some jurisdictions, law enforcement officers are required to administer tests to determine if one or both of the drivers was intoxicated at the time of the crash if the accident resulted in serious injuries or death. In other cases, a law enforcement officer has the discretion to order such tests if he or she reasonably suspects that alcohol was involved.

During this time, the law enforcement officer may ask routine questions and look for evidence in plain view, such as empty alcohol containers. He or she may also conduct field sobriety tests. If these follow up questions and assessments lead the officer to conclude that the driver is likely under the influence of drugs or alcohol, he or she may arrest the driver.

While criminal suspects are usually required to provide law enforcement officers with their names and to exit a vehicle upon request, the other rights that the suspect has varies on state law. Some states require drivers to submit to breath or blood tests to determine if they are under the influence of alcohol or drugs as a condition of receiving a driver’s license in the state. A refusal to submit to such a test can be treated as an admission of guilt in some states or as grounds to automatically suspend a driver’s license. Some states do not require drivers to submit to field sobriety tests. Check with a lawyer in your jurisdiction to determine what the relevant state laws are.

If a person is convicted ofDUI, he or she faces serious consequences, including possible jail time, fines, the need to enroll in an alcohol treatment program, community service, revocation or suspension of a driver’s license and potential impacts on his or her career. Penalties are more severe if the defendant has a history of such offenses. Individuals who are facing DUI charges should immediately consult with a lawyer to determine the best legal strategy in defending against these criminal charges.

Field Sobriety Tests
If a person is suspected of drinking and driving, a law enforcement officer may conduct a field sobriety test. The National Highway Traffic and Safety Administration endorses the Standardized Field Sobriety Test which is comprised of three separate tests. These tests allow a law enforcement officer to observe a suspect’s balance, attention, physical ability and other factors that are meant to gauge whether he or she was driving under the influence. Research shows that the three standard tests taken together accurately detect impairment by alcohol in 91 percent of cases. Failing these tests can provide the officer with probable cause to arrest the suspect or to administer a breathalyzer test.

The three tests that are part of the Standardized Field Sobriety Test are:

Horizontal Gaze Nystagmus
This test evaluates the involuntary movements of a suspect’s eyes. All eyes move involuntarily when they gaze to the side. However, the movement is more pronounced when a person is impaired by alcohol intake. To conduct this test, an officer instruct the suspect to follow a moving object that is located a certain distance from the suspect’s eyes. During the test, the law enforcement officer assesses the suspect’s ability to follow a moving object, exaggerated eye jerking when the eye is at the maximum deviation and jerking that occurs within 45 degrees of center.  

Walk and Turn
This test require the suspect to take nine steps on a straight line. The suspect walks heel to toe and then turns on one foot. After walking down the line, the suspect turns on one foot and then returns to the starting point in the same way. The law enforcement officer assesses the capability of the suspect to perform tasks while having his or her attention divided.

One-Leg Stand
The final test is the one-leg stand in which a suspect is instructed to stand with one foot approximately six inches off of the ground. The suspect then counts to 30. The law enforcement officer observes for potential signs of impairment, including balancing with the arms, hopping or dropping the foot.

Other Tests
Some officers may use other tests than the three standardized ones listed above, including asking the suspect to count, recite the alphabet, standing and tipping feet according to certain instructions or asking the suspect to touch his or her nose while having his or her eyes closed.

Breathalyzer Test
A law enforcement officer may conduct a Breathalyzer test at the scene of the traffic stop or at a police station. If the defendant’s blood alcohol content is shown as being over the legal limit, the suspect will likely be arrested and the Breathalyzer results may be used against him or her as evidence in the defendant’s criminal case.

Elements of DUI


The specific elements of DUI that the prosecution has the burden of proving are based on the criminal statute in question. However, for most DUI cases, the prosecutor must first prove that the defendant was driving. Then, he or she must prove that the defendant was under the influence, which means that the person’s ability to drive was affected by a chemical such as alcohol or a drug.

DUI Defenses


There are several defenses that a defendant may make through his or her attorney. Sometimes these defenses are presented at trial in order to receive a “not guilty” verdict. In other instances, the defense may be used in support of a motion to exclude evidence or have the case dismissed. If you would like to know what potential defenses may be available in your case, discuss it with your DUI attorney.

Not Driving
In some cases, the defendant was not actually driving at the time the initial investigation started. For example, he or she may have been sitting in a parked car or passed out in the vehicle.

Invalid Stop
A law enforcement officer must have a reasonable suspicion that a suspect is committing a crime before he or she has the legal right to stop the vehicle.

Innocent Reasons for Poor Field Sobriety Tests
A criminal defense lawyer may present evidence to refute the law enforcement officer’s observations that ultimately led to the arrest. There are a number of reasons why a sober person can fail a field sobriety test. For example, tests that assess balance or walking may be unreliable when administered to older individuals, overweight individuals, individuals with certain medical conditions or external factors such as the shoes the defendant is wearing, the conditions on the roadway or weather conditions. For observations concerning a suspect’s appearance, other legitimate reasons may apply, such as the suspect being tired, having allergies, having literacy problems or having difficulty understanding the questions.

Breath, Blood or Urine Test Defenses
In some cases, a defendant may perform poorly on a Breathalyzer test, blood test or urine test that shows that his or her blood alcohol level was above the legal limit. However, a DUI defense lawyer may raise a number of defenses to these types of tests. Regarding Breathalyzer tests, the lawyer may question whether the machine was calibrated correctly and whether the test administrator used the machine properly. Chemical tests may also be impacted on a number of other factors, including consumption of certain food or medication. The chain of custody of a blood or urine sample may have been compromised, calling into question the legitimacy of the test results. Another potential defense is whether the person who performed the test was not competent.

Not Being Made Aware of Rights


DUI laws are based on state law. Many states require officers to give the defendant specific warnings before participating in certain tests or being asked to consent to a chemical test. For instance, a person may have his or her license automatically suspended if he or she refuses to take a chemical test. If the officer failed to provide this information to the defendant, the results of the test may be found inadmissible. Another defense is if the suspect was interrogated and not provided his or her Miranda rights before this interrogation.

Another way that the results of a chemical test may be called into question is if the defense attorney alleges that the defendant had not completely absorbed the alcohol at the time that he or she was stopped. Under this theory, the defendant was not impaired at the time that he or she was driving and the test only shows that the defendant’s BAC was higher by the time the test was actually administered.

A criminal defense lawyer can also investigate whether police followed the proper procedures before ordering such tests and in administering such tests.

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