Ten basic questions and answers you need to know From KPIX Legal Analyst Peter Keane.
Certain features of the laws relating to drunk driving differ from state to state. Some of the main differences are: the amount of alcohol in a person's bloodstream that constitutes being under the influence, the exact length of jail sentences and the amount of fines that may be imposed. This article is based on California law which is similar to the laws of many other states.
1. Q: Do you have to be drunk to be guilty of drunk driving
2. Q: Legally, just what is drunk driving
3. Q: What amount of alcohol will put me at .08 or higher?
A: No. Years ago, a drunk driving charge meant someone was "drunk" in the way all of us commonly understand the word - intoxicated. But today, intoxication as we know it is not required for one to be guilty of drunk driving. During the last ten years public outcry against the toll of injury and death which drinking drivers inflict has changed the laws against drunk driving radically and made them much more severe. So the criminal laws against drinking and driving now mean operating a vehicle with considerably less alcohol in your system than what we customarily recognize as being enough to make a person drunk.
You may not think you are drunk. Those around you may not think you are drunk. Indeed, for the purpose of every other situation except driving, you may not even be considered drunk. But your condition may be enough for you to be found guilty of a drunk driving offense under the current definition of the law. And if you are convicted, you will suffer some very harsh penalties.
2. Q: Legally, just what is "drunk driving?"
A: A drunk driving offense, sometimes called driving while intoxicated (DWI) or driving under the influence (DUI), really has three general meanings:
(1) Driving with any amount of alcohol in your system which causes your physical abilities to be impaired in any way.
(2) Driving with a level of alcohol in your system which amounts to a measurement of.08 of blood alcohol content. To be guilty of this offense, absolutely no impairment of any of your physical abilities is necessary. You may well be the world's most talented, careful and safest driver, but if your blood alcohol content registers .08 or above you are guilty of a criminal offense.
(3) Driving with drugs in your system or with a combination of drugs and alcohol, no matter what the amounts of those substances may be, where your physical abilities have become impaired in any way. It does not matter if the drugs are legal , over the counter medications like antihistamines, nor does it matter if you have a prescription to take the drugs. If you are impaired as a result of taking them, then you are guilty of a criminal offense.
3. Q: What amount of alcohol do I need to drink to have a blood alcohol content of .08 or higher?
A: Each person's blood alcohol content from drinking certain amounts of alcohol will vary, depending upon a number of factors. The main factor is your weight. To calculate your blood alcohol content based upon having normal drinks such as a 12 oz. beer, a 4 ounce glass of wine, or a single mixed drink containing a one ounce shot of 100 proof liquor, the following rule of thumb is an illustration:
120 lbs: one drink in one hour -- .032
two drinks in one hour -- .064
three drinks in one hour -- .096
180 lbs: one drink in one hour -- .021
two drinks in one hour -- .042
three drinks in one hour -- .063
four drinks in one hour -- .084
4. Q: What kind of reason does a police officer or highway patrolman need to have in order to stop me to investigate whether or not I am driving under the influence?
A: The officer must have what is legally termed a "reasonable suspicion," based on something unusual that is actually observed about the way a person is driving. This is a very low standard and it can be satisfied by virtually anything which appears out of the ordinary and that might be a sign of a driver being under the influence. In addition, during holiday seasons, police officers typically set up field sobriety checkpoints where they routinely stop every driver who passes through the checkpoint. These checkpoints do not require the officer to observe anything suspicious about a person before stopping and investigating someone.
5. Q: What happens to me if I am pulled over by the police or the highway patrol for investigation of drunk driving?
A: If you are stopped, always be courteous and cooperative with the officer even if you are 100% clean of any type of alcohol or drugs, and even if you are certain that your driving did not show anything unusual. Never argue with the officer. Law enforcement is a tough, often nerve wracking job and the "attitude" you show to the officer can often make all the difference as to whether or not the encounter will be an unpleasant one for you.
6. Q: What will happen if the officer who pulls me over suspects that I have been driving under the influence?
A: The officer will ask you to get out of the car and will instruct you to perform a series of "field sobriety tests." These are standard physical ability measures and they include:
(1) Reciting the alphabet from A to Z;
(2) Closing your eyes and bringing both index fingers together;
(3) Walking along a straight line;
(4) Standing on one foot for a few seconds;
(5) Picking up a coin dropped on the ground; In addition to these tests, some officers typically have certain field sobriety testing devices which they use. One such device is a breath meter which you blow into. another is a light to shine in your eyes in order to test your pupil reaction. It is very important that if you suffer from any chronic physical problems, such as difficulty with your balance, problems walking or with your legs or feet, that you inform the officer of these things before you go through the field sobriety tests.
7. Q: What happens if the officer believes that I have not performed the field sobriety tests satisfactorily?
A: At that point you will be told that you are under arrest for driving under the influence. You will be hand cuffed, searched for weapons, placed in the back of the officer's car and taken to a jail for further tests. At the jail you will also be booked and held there until you post bail or until a judge releases you on your own recognizance without bail. Once again, as upsetting and as stressful as being arrested is, it is essential that you continue to act courteously and cooperatively with the officer. Do not argue, threaten or become belligerent in any way. This type of behavior will only make the experience even more unpleasant for you.
8. Q: What is a blood alcohol test?
A: This is a physical procedure to determine how much alcohol you actually have in your system. There are three ways of doing this test:
(1) Drawing a sample of blood from your arm;
(2) Obtaining a urine sample;
(3) Obtaining a breath sample by having you blow into a machine called a breathalyzer; (This is different from the field sobriety breath device described above. The breathalyzer is much more sophisticated and exact.
You have the choice of which one of these three tests you will take. The only time your ability to choose which test you take can legally be restricted is if you are in a locality that simply does not have a breathalyzer. The officer is required to tell you that the option as to which test you take is up to you. But quite often officers will try to pressure or browbeat a person into taking the blood test because this is the most effective procedure for the prosecution to use against a person in court. You do not have the right to refuse to take any test. Legally, the officer could hold you down and forcibly draw a blood sample from your veins. In practice this rarely happens except where an accident is involved which caused death or serious bodily injury. Instead, if you refuse to take a test, your driver's license is automatically suspended for one year. Also, in your trial, the jury will be told that you refused to take the test and the judge will instruct the jury that they can consider your refusal as evidence of your guilt.
9. Q: What should I know in order to make an intelligent choice about which blood alcohol test I should take?
A: As mentioned above, from the standpoint of the police and prosecution they will always prefer to have the more accurate sample of your actual blood to use against you as evidence in court. The least accurate and least reliable test is of a urine sample. However, if it has been some period of time from when you had your last drink to when you give the urine sample, the sample may test out to your disadvantage with an inaccurately high reading against you. This is because in such a situation, the alcohol content in your excreted urine is actually greater than the amount of alcohol you have remaining in your system.
On the other hand, a breath test may show an inaccurately high reading against you if you take the breath test shortly after your last drink. This is because of the high alcohol content lingering in the mouth, esophagus, and the upper digestive system. If you have used any kind of breath spray, mouthwash or even should you burp shortly before the breath test, then the reading could be inaccurately high against you. Both the blood and the urine samples will also show the presence of drugs as well as alcohol. However a breath test can only determine alcohol content and nothing about drugs. Whichever test you take must be given to you within 3 hours of when you were driving.
10. Q: What are the penalties for driving while under the influence?
A: Drunk driving penalties have become very severe in the past few years. For a first offense, the maximum possible penalties the court could impose are:
(1) 6 months in the county jail:
(2) $1,000 fine plus up to an additional $1,950 in penalty assessments;
(3) 6 months driver's license suspension;
(4) Your car impounded for 30 days.
Second, third and fourth offenses within 7 years are punished by increasingly more harsh penalties. For third and fourth convictions, your license must be revoked for 3 and 4 years respectively. A fourth offense can even be prosecuted against you as a felony carrying a maximum term of 3 years in state prison along with your car being ordered sold and the proceeds going to the state. In addition to all of the above penalties, the price of auto insurance increases drastically after any conviction for a driving under the influence offense.
The bottom line legal and practical advice to draw from all of all of the above is very clear:
Its never worth it to drink and drive.
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