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Got arrested for DUI? Brace yourself.

November 1, 2011

2. Law, 4. Arrest

Got arrested for DUI?  Brace yourself.

Had a client that back in the 1970s got pulled over for speeding in upstate New York.  Cop did a sobriety test; said he was DUI.  “Here’s your speeding ticket.  Here’s you DUI ticket.  Drive safely.”  Those days are over.

About a third of roadway fatalities involve a vehicle operator at or over the legal limit – now 0.08% BAC nationwide.  The stats add another five points when you include the presence of alcohol (0.01% or more).  The drill with DUI, and why it’s gotten such huge attention, is that it’s preventable.  Auto accidents happen – mechanical failure, bad weather, inattention, etc.   All of these can result in an accident through marginal involvement of the operator.  There’s often no affirmative action by the driver before the accident cycle begins.  Ah, but pound down a few beers and get behind the wheel – and that pounding was an affirmative action.  In 2008, almost 12,000 people died in accidents where one or more vehicles involved was operated by someone with a 0.08 or higher BAC.  When you understand that just over 37,000 people died in all auto accidents, you can see the impact alcohol has on safe driving.

In fact, once a person hits 0.06 certain changes in abilities can be measured – depth perception, concentration, peripheral vision, and glare recovery.  It’s easy to understand how someone with these four compromised faculties can get into an accident.  Crack 0.10, BAC and you can add compromised reflexes and gross motor control to the list.

For a guy my size, three drinks puts me at or over the limit.  I’ll process out 0.01 every 40 minutes.  If I go to a bar to shoot pool or watch a game, I might have four or five beers.  There’s no way I can leave the bar at any reasonable time after I’m done socializing and not be impaired.  And eating food doesn’t decrease the amount of alcohol in my system, it just slows the absorption.  This is why designated drivers are a good idea.

All I’m trying to do immediately above is drive home the fact that no matter how harsh you think DUI penalties can be, there’s data and science behind them.  Avoiding a DUI is easy – don’t get behind the wheel when you’ve been drinking.

But you did anyway.  Now what?

First, we’re only talking alcohol here, but know that any mind-altering substance qualifies – weed and all the street drugs, and even prescription drugs.

When you get pulled over or waltz into a checkpoint, the cop is going to do a field sobriety test.  It’s mostly balance and perception issues.  On the witness stand, a cop is going to say, “So, therefore, in my professional opinion as a duly trained officer, I concluded that he was incapable of operating safely a motor vehicle due to his state of intoxication.”  The FSTs are a basis for that conclusion.

Cops often do a breath test.  You blow with everything you got into this tube.  You’ve got nothing to lose by doing that.  Breath tests are not admissible in court.  If you blow low, the cop may let you go.  If you blow high, chances are the FSTs were enough to have you going for a blood test anyway.

You know how your heart works?  It brings blood from your body, pushes it to the lungs where it gets fresh oxygen, and then sends it back out.  Since the alcohol is in your blood, a cop can measure the air in your lungs to determine the amount of alcohol in that blood.  It’s not admissible in court because bodies process alcohol differently.  The margin of error can be significant.  But if you blow 0.08% on the side of the road and perform less than admirably in the FSTs, chances are good your blood will test at or above the legal limit.

You can refuse a blood test.  Should you?  The answer gets dangerously close to legal advice, so I’m gonna back off a bit.  Let me write this:  Driving in Pennsylvania (and all other states) is a privilege – not a right.  As a part of that privilege, you agree to submit to a blood test to determine the amount of intoxicant in your system provided there’s an appropriate basis for the demand.  If you refuse, your license is automatically suspended for at least a year.  To add a little salt on that wound, when (not if) the DUI prosecution goes forward, you’ll be assumed to have had the top tier of intoxicant present.  Yes, they still have to prove your impaired driving, but when you get sentenced it will be the top (of three) tiers.  And that year-plus suspension will run consecutive to any additional suspension from the DUI.  Ouch.

Pennsylvania used to have a pretty simple sentencing approach:  48 hours, 30 days, 90 days, a year (1st through 4th+ DUIs).  They’ve added a few wrinkles over the past several years.  Here’s the current law.  BAC levels are now introduced.  You can do up to five years in prison … just because you decided to drive.  Ain’t worth it.  For the fines, attorneys’ fees, and everything else out of pocket, you could afford a limo drive to a nice hotel to sober up.  And what about your job?  They gonna take you back after you’ve been AWOL for six months?  How about increased insurance premiums?  The list just doesn’t end.  Dude, it ain’t worth it.

For the first-time whack, ARD may be available – Accelerated Rehabilitative Disposition.  ARD is not just for first-time DUIs.  It’s generally there for all first-time non-violent crimes.  The problem is that acceptance into ARD is in the absolute discretion of the DA.  The judge also has a say in the matter.  But if the DA declines an ARD request, then the issue is off the table.  One thing I always had DAs ask is whether there was any property damage, whether anyone besides the defendant got hurt, and – AND – whether the then-suspect was a dick during the traffic stop.

ARD gives a person two things – it takes incarceration off the table and sets up a procedure for the crime itself to be removed from the record.  Fines, costs, and all that happy stuff out of your pocket remain.  So it’s expensive.  And get nailed for a second DUI during the look-back period, then ARD is revoked, you’re re-sentenced for the first DUI, and then you get the second DUI proceeding crammed down your throat.

DUIs suck.  They nail you today with money and maybe jail time.  When the prosecution fades through time, you’re still dealing with money and job issues.

Priority #1:  Don’t drink and drive.

Priority #2:  If you get a DUI, get an attorney.

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About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

View all posts by Clyde

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