DUI Arrests + Every drunk driving case begins with an arrest by a police officer, which follows a traffic stop and one or more sobriety tests. This section covers a range of topics pertaining to getting pulled over, tested for impairment and other procedures leading to a DUI arrest. Articles cover such topics as the legality of DUI checkpoints, what to expect when stopped by a police officer, how to assert your Fourth Amendment rights during a traffic stop, how field sobriety tests typically are conducted, FAQs about blood-alcohol concentration tests and more
DUI Traffic Stop + Here are the questions we get asked the most about drunk driving, legal limits, drunk driving defense, and finding the right attorney after you've been charged with DUI (driving under the influence):
What is the legal limit for blood toxicity?
In general, it is illegal for you to drive while you are "impaired" by drugs or alcohol. It should be clear at the outset that prescription drugs are not excluded from this list. Being impaired means that there must be enough of the alcohol or drug in your system to prevent you from thinking clearly and driving safely while on the road. According to many studies, impairment happens to many people well before they consider themselves drunk or stoned.
As for the numbers if you have a blood alcohol content of .08% or higher, that is considered "per se" Driving Under the Influence (DUI), or Driving While Intoxicated (DWI). For those under the legal drinking age of 21, in almost all states you will be considered to be driving under the influence if you have a blood alcohol content great than .01% or .02%, depending on the state you are in.
What methods do police use for detecting drivers under the influence?
In general, police have three different methods of figuring out whether or not a driver is under the influence:Observing erratic driving. In general, police officers will pull you over if they notice that you are showing any of the signs of driving under the influence. These signs include swerving, speeding, driving too slowly, failing to stop, failing to yield, and any other indications that signal to the officer that you are driving drunk. In general, if you actually have a good reason for driving the way you were driving, the officer may let you go with only a ticket or a warning. However, officers will be looking to see if your eyes are blurred or if they smell alcohol on your breath.Field Sobriety Tests. If, after stopping you, the police officer has a hunch that you may be driving under the influence, he will most likely get you out of the car in order to do some field sobriety tests. These tests can include walking in a straight line, standing on one leg, or a speech test. The officer will also carefully watch your eyes to look for any pupil dilation. If you fail these tests, the officer will likely ask you to take a chemical test.Chemical Blood Alcohol Level Tests. If you fail a field sobriety test, the police officer will likely take you in to perform a more accurate blood alcohol level test. These tests are normally taken by testing a blood, urine or breath sample. The blood test is very direct and measures the amount of alcohol in your system. The urine and breath tests work off of a mathematical formula to derive your blood alcohol level from the sample. If you test above a .08% blood alcohol level, you will be guilty of a DUI unless you can convince the judge that you were not impaired or being unsafe. Also, many attorneys base their drunk driving defense on challenging the mathematical formula used in the tests.
Do I have to take a test if the police direct me to do so?
In general, you are allowed to refuse to take a chemical blood alcohol level test, but if you do, you will invoke an "implied consent" law. This will likely result in a suspension of your driver's license for a period of time, even if you are found not guilty in court. In addition, if your case does go to trial, the prosecutor is free to tell the jury that you refused to take a chemical test, which may look bad for your drunk driving defense.
After I have been stopped for driving under the influence, can I consult with a lawyer before deciding which a chemical test to take?
This depends upon the laws of your state. For example, in Arizona, you may talk to a lawyer before deciding to take a chemical test. However, other states do not allow you to consult with an attorney before a test.
Can the police ask me questions after pulling me over but before reading me my rights?
It all depends on the circumstances and whether or not you are in the "custody" of the police. During a roadside traffic stop, you are not considered to be in police custody, and therefore the police can ask you questions without reading you your Miranda warning. Once you are in police custody, however, they must read you your rights before asking you any questions. If they don't, any answers you give may be inadmissible against you in court. To be in custody, you must feel that you are not free to leave a situation.
Should I get a lawyer if I have been charged with drunk driving?
If you are determined to put forth a great drunk driving defense, then it would be very wise to hire a drunk driving attorney. These attorneys are very skilled at challenging medical experts and scientists in order to put a great defense up for you.
It has become very hard to successfully fight a drunk driving charge these days, however. If the police have some evidence against you in the form of a failed chemical test, you have a tough fight in front of you. If you think that you are guilty, it may be your best bet is to try to get some kind of plea deal with the prosecutor assigned to your case.
I was stopped at a roadblock and asked to wait to answer some questions. Was this legal?
If the police used some sort of neutral policy for picking out which cars to stop, then it was legal. Police are allowed to single out automobiles at roadblocks if they have a good reason to do so, such as a suspicion that you are driving under the influence.
DUI Arrest + After a traffic stop and any field sobriety tests, the first stage of the criminal process in a DUI case begins when a police officer places the suspect under arrest. An "arrest" occurs when a person has been taken into police custody and is no longer free to leave or move about. The use of physical restraint or handcuffs is not necessary. An arrest can be complete when a police officer simply tells a crime suspect that he or she is "under arrest", and the suspect submits without the officer's use of any physical force. The key to an arrest is the exercise of police authority over a person, and that person's voluntary or involuntary submission.
A police officer may usually arrest a person in the following circumstances:
The Police Officer Personally Observed a Crime
If a police officer personally sees a person commit a crime, the officer may lawfully arrest that person. For example:A police officer pulls over a vehicle that is being driven erratically, and after administering a Breathalyzer test, sees that the driver's alcohol intoxication level is more than twice the state's legal limit for safe operation of a vehicle. The police officer can legally arrest the driver for DUI.
The Police Officer Has "Probable Cause" To Suspect Criminal Activity
When a police officer has a reasonable belief, based on facts and circumstances, that a person has committed (or is about to commit) a crime, the officer may arrest that person. This belief, known as "Probable Cause", may legally justify a DUI arrest in certain situations where strong indications of DUI are present, but administration of a chemical test is refused or is otherwise not possible. For example:A police officer sees someone throw a bottle out of a vehicle in a jurisdiction that makes it a crime to throw bottles out of a moving vehicle. The officer pulls the vehicle over and notices empty beer bottles in the back seat of the car. When the driver refuses to submit to a breath test, the officer may lawfully arrest the motorist based on probable cause that a DUI has been committed.
The Police Officer Made a Lawful Traffic Stop Which Led to a DUI Arrest
In a large number of cases, traffic stops for routine traffic violations lead to DUI arrests. This is because police officers must show that they were not acting randomly or in an arbitrary manner merely to harass or intimidate an individual.
Legal traffic stops by police officers can range from the obvious, such as speeding violations, to more subtle violations like broken tail lights or illegal u-turns. For example:A police officer notices a vehicle with an expired license. When the officer pulls the driver over, he smells alcohol coming from the vehicle, along with other indications that he or she has been drinking. The officer then asks the driver to submit to a breath test or field sobriety test, finding that the driver is over the legal limit. Most courts will find that is was reasonable for the officer to detain the driver long enough to determine whether he or she is, in fact, intoxicated.
An Arrest Warrant Has Been Issued
When a police officer has obtained a valid warrant to arrest a person, the arrest is lawful. An arrest warrant is a legal document issued by a judge or magistrate, usually after a police officer has submitted a sworn statement that sets out the basis for the arrest. When issued, an arrest warrant typically: Identifies the crime(s) committed;
Identifies the individual suspected of committing the crime;
Specifies the location(s) where the individual may be found; and
Gives a police officer permission to arrest the person(s) identified in the warrant.
Challenging An Unlawful Arrest
At all stages of the criminal process, including arrest, police officers must protect citizens' constitutional rights, such as the right to remain silent and the right to be free from unreasonable searches. If these rights are violated, a court may later deem the arrest unlawful, and certain evidence may be thrown out of the case. Click here to learn more about a defendant's legal rights at the arrest stage.
While a criminal suspect may question the lawfulness of an arrest when it is happening, including the basis for the arrest and the actions of the police officers, that battle is better fought in court than on the street.
BAC Test +
Q: What different methods are used to measure blood alcohol concentration (BAC)?
A: There are five different bodily samples that can be screend for a DUI suspect's BAC level: urine, saliva, hair follicles, blood and breath. However, only breath analysis (i.e. breathalyzer) and blood screening are broadly used by law enforcement for gathering evidence. As blood screening is considered more invasive, this method is used less often than breath analysis (mainly after a serious accident or where the suspect has refused a breath test).
Q: How do breathalyzer tests work?
A: There are different machines on the market used for analyzing a DUI suspect's blood alcohol concentration. Some, though rarely used today, employ what is called a "wet chemical" technique to compare one's breath to a sample. The most current generation of breath analysis machines (still commonly referred to as "breathalyzers"), analyze the alcohol content of exhaled vapor through a method called infrared spectroscopic analysis.
The latter method of analysis is based on the scientific principal that captured alcohol vapor absorbs light waves of a particular frequency in the presence of light, depending on the amount of alcohol present. A computer translates this data into the more familiar BAC measurement used to determine the level of alcohol in a person's bloodstream (for example, 0.08 percent BAC).
Q: How accurate are they?
A: While they are not as accurate as blood tests, breathalyzers have been considered acceptably accurate by most courts as tools for gathering evidence. However, some independent studies have determined that breath readings can vary by 15 percent from actual BAC levels (as measured by a blood draw). Some courts have even thrown out breathalyzer results, calling into question the reliability of the machines.
In 1988, a New Jersey court cited the following scientific evidence: (1) high readings for 14 percent of the population due to design flaws; (2) variance in results based on the temperature of the machine itself; (3) different results from the varying body temperatures of test subjects and (4) variances in the presence of hematocrit in the blood also affecting test results. Accuracy also can be hampered by the use of an improperly calibrated machine.
Q: Can you beat a breathalyzer test if you're intoxicated?
A: No. Some popular methods thought to help individuals fool a breathalyzer test, including the ingestion of breath mints, mouthwash, onions and even pennies, have been shown not to work. Mouthwash (which often contains alcohol) may actually have a tendency to raise a person's BAC.
Q: Is it possible to successfully challenge breathalyzer results in court?
A: Absolutely. Breathalyzer machines must be tested routinely to make sure they are properly calibrated. A skilled DUI lawyer will look into the maintenance records of the device used to test his or her client and otherwise determine the validity of the evidence.
Q: How accurate are those small, inexpensive BAC-testing devices sold to consumers?
A: It depends. There is a wide range of products available, some more accurate than others, but it's always best to assume they may be a little off (and they may not be used as as a defense to DUI charges). Saliva alcohol test strips are considered to be among the most accurate consumer BAC tests, since the amount of alcohol in one's bloodstream closely corresponds to the concentration of alcohol in the saliva.
Implied Consent Laws + After stopping a motorist on suspicion of DUI, the officer typically checks for signs of impairment and may ask the driver to submit to a breathalyzer test to determine his or her blood-alcohol concentration (BAC).
But not everyone willingly provides a breath sample and police officers cannot force DUI suspects to blow into a tube. More than 20 percent of drunk driving suspects in the U.S. refuse to take a breathalyzer or other BAC test when an officer suspects drunk driving, according to the National Highway Traffic Safety Administration (NHTSA). It varies greatly from state to state, from 2.4 percent in Delaware to 81 percent in New Hampshire (based on 2005 data cited by NHTSA).
DUI attorneys generally have more leverage defending their clients in the absence of breathalyzer test results. The act of refusal, though, comes with its own penalties.Implied Consent Laws
Under "implied consent" laws in all states, when they apply for a driver's license, motorists give consent to field sobriety tests and chemical tests to determine impairment. Should a driver refuse to submit to testing when an officer has reasonable suspicion that the driver is under the influence, the driver risks automatic license suspension along with possible further penalties.
Consequences for breathalyzer refusal vary by state, which may explain the wide variance in statewide refusal rates, but most states impose an automatic six- or 12-month driver's license suspension upon refusal of a BAC test. Suspensions usually increase for a refusing motorist with past DUI convictions, sometimes including jail time. License suspension following a refusal may also cause your car insurance company to cancel your policy. In many states, if the driver is found guilty of DUI, having refused the breathalyzer can result in enhanced penalties.Penalties for Refusing a Breathalyzer
Here is just a sample of state DUI laws with respect to breathalyzer test refusal:California: Can result in a citation for refusing a chemical BAC test; consenting to a blood draw after initially refusing a breathalyzer test exempts the suspect from a refusal chargeNew York: Automatic six-month license suspension plus a possible $500 fineMassachusetts: Six-month automatic license suspension, but refusal cannot be used to imply guilt in a DUI case; lifetime suspension for refusal after three prior DUI offensesOhio: Mandatory minimum 6-day jail sentence or three days in jail plus a 72-hour driver intervention program, and a fine, for those with a prior DUI conviction (20-day sentence if it's the second DUI charge in six years)
Ask a DUI attorney in your state for more specific information about refusing a breathalyzer test.
Field Sobriety Tests + Field sobriety tests, sometimes called roadside sobriety tests, are used to enforce DUI laws and usually precede breathalyzer tests. A police officer typically performs the three-part field sobriety test after a traffic stop in which there is suspicion that the motorist may be drunk or otherwise impaired. These tests allow an officer to observe a suspect's balance, physical ability, attention level or other factors that the officer may use to determine whether the suspect is driving under the influence.
Officers record the suspect's performance on a field sobriety test to be used as evidence in DUI cases; such tests generally have been upheld on appeal.
The Standardized Field Sobriety Test (SFST) endorsed by the National Highway Traffic and Safety Administration (NHTSA) consists of the horizontal gaze nystagmus (HGN), walk-and-turn (WAT) and one-leg stand (OLS):
Horizontal Gaze Nystagmus: This term refers to the involuntary jerking of the eye that occurs naturally when the eye gazes to the side. But this jerking (or nystagmus) is exaggerated when someone is impaired by alcohol. Officers look for three indicators of impairment in each eye: inability to follow a moving object smoothly; distinct eye jerking when eye is at maximum deviation; and eye-jerking within 45 degrees of center.
Walk and Turn: The purpose of this test, determined to be easily done by most unimpaired people, tests the suspect's ability to complete tasks with divided attention. This is administered by requiring the suspect to take nine steps, heel-to-toe, along a straight line; turn on one foot; and then return in the same manner in the opposite direction.
One-Leg Stand: Suspects are asked to stand with one foot about six inches off the ground and count for 30 seconds. Swaying while balancing, using arms to balance, hopping or putting the foot down indicate possible impairment.
Taken as a whole, the three components of the SFST accurately indicate alcohol impairment in 91 percent of all cases and 94 percent of cases if explanations for some of the false positives are accepted, according to a 1998 study cited by the NHTSA. Suspects who fail the field sobriety test usually are given a breathalyzer test to determine their blood-alcohol concentration before an arrest is made.
Other, non-standardized field sobriety tests may include one or more of the following: Standing with feet together and tipping the head backwards; counting the number of fingers an officer raises; reciting the alphabet; counting backwards; standing and leaning back to look up at the sky while holding arms to the side; or closing the eyes and touching nose with finger.
If you need more information about field sobriety tests, consider speaking with a DUI Attorney in your state.
No-Refusal DUI Enforcement + As more state and local law enforcement officials enact "no-refusal" DUI enforcement policies, it has become increasingly important for motorists to understand how the law deals with those who refuse blood alcohol tests.
Motorists suspected of drunk driving typically are asked to submit to a breathalyzer test to determine blood-alcohol concentration (BAC). A positive test result (0.08 percent or higher) triggers DUI charges and most often leads to a guilty plea or conviction, while refusal to take the test typically results in an automatic driver's license suspension.
Some drivers refuse testing, which cannot easily be done without the subject's cooperation, in order to sidestep a potentially serious DUI conviction. Prosecutors often decline to file charges in DUI cases that lack evidence of actual intoxication. The Rise of No-Refusal Policies
This problem theoretically could be overcome by obtaining a search warrant for the DUI suspect's breath or blood, which presents some logistical hurdles. Before advances in technology, paper warrants had to be brought to the judge's home or office; the process often would take hours. Meanwhile, the DUI suspect would sober up at a rate of about 0.01 percent (BAC) per hour.
All states have "implied consent" laws in place, which punish the refusal to take a blood alcohol test, however many states have found these laws insufficient to deter drunk driving. A 2003 NHTSA study found that implied consent laws fail to significantly reduce blood alcohol test refusals. The study also concluded that suspects who avoid testing often avoid serious DUI penalties.
By the time the officer obtained a warrant and secured a blood draw by a licensed health care professional, the suspect might already be sober or at least under the 0.08 percent BAC threshold.
Now, officers in many jurisdictions are able to contact on-call judges remotely and have an electronic warrant (PDF, NHTSA) sent directly to their smart phones or computers, solving the time delay issues. These are called no-refusal policies because refusal of a court-ordered BAC test (via warrant) can lead to more serious contempt charges.
You can still refuse a BAC test when no-refusal policies are in effect but you can't legally refuse a search warrant for a BAC test. Texas police are even authorized to use force to obtain a blood sample with a warrant. So technically you are free to refuse; but refusal is becoming a much less attractive option for suspected drunk drivers.
Currently, at least 30 states have the legal authority in place to conduct no-refusal initiatives, though not all of these states are actively putting them into practice, and many places use no-refusal policies during selective time periods. State and local jurisdictions often have high-profile no-refusal weekends during holidays and other periods of high alcohol consumption in order to deter drunk drivers in the first place.Criticism of No-Refusal Initiatives
The American Civil Liberties Union (ACLU) is one of the most vocal critics of no-refusal policies, claiming they violate drivers' rights against unreasonable search and seizure. The ACLU also claims no-refusal initiatives raise questions regarding medical privacy, specifically whether any additional data gathered from a blood draw is being used.
The policies also have been challenged in the courts but so far none have prevailed. Ask a DUI attorney in your state to find out more about DUI enforcement policies in your neighborhood.
Breathalyzer Calibration + "Per se" DUI laws establish a legal presumption that a driver was intoxicated if he or she has a blood alcohol concentration (BAC) above a certain limit usually .08 percent. In order to establish a DUI suspect's BAC, police officers will employ a chemical test of some kind. While a blood test produces the most exact results, police officers regularly use portable breath analyzers to estimate a suspect's BAC while at the scene of the initial DUI traffic stop.Commonly known as "breathalyzers," breath analysis testing devices offer strong evidence concerning a suspect's BAC, but they are not infallible. Courts regularly accept breathalyzer evidence as sufficient proof of a defendant's BAC, but the police department must demonstrate that the testing device in question can produce reliable results. Many DUI defendants have successfully challenged the breathalyzer evidence brought against them, thus putting a serious dent in the prosecution's case.
The most frequent challenges to breathalyzer evidence concern whether or not a testing device was in proper working order at the time of the test. Breathalyzers require regular calibration and maintenance to ensure that they deliver results with a sufficient level of accuracy. An improperly calibrated or poorly maintained machine will produce unreliable results that cannot form the basis of a presumption of intoxication under per se DUI laws.
If a defendant can show that the police department did not follow proper calibration procedures, or that the device in question consistently provided erroneous readings, then a court will likely declare the results of the breathalyzer test inadmissible as evidence of the defendant's intoxication. At that point, the onus will shift back to the government to prove the defendant's intoxication through some other type of evidence.
DUI Checkpoints + Law enforcement officials in most states occasionally set up DUI checkpoints, also called sobriety checkpoints or roadside safety checks, to question motorists and determine whether or not they are drunk or otherwise impaired. DUI checkpoints consist of police roadblocks at busy thoroughfares at which motorists are randomly selected for screening.
Some jurisdictions heavily publicize dates and times of DUI checkpoints, typically conducted at peak times of alcohol consumption such as New Year's Eve, in an effort to deter drunk driving. Sobriety checkpoints reduce alcohol-related crashes by about 20 percent, according to a U.S. Centers for Disease Control report combining the results of 23 scientific studies.
Although they tend to be controversial, DUI checkpoints have survived most legal challenges; even in some states where statutes require an officer to have reasonable suspicion of intoxication before initiating a traffic stop. The U.S. Supreme Court ruled in 1990 that sobriety checkpoints are legal under federal law (Michigan Dept. of State Police v. Sitz), leaving it up to the individual states to decide.
DUI checkpoints are not conducted in the following 11 states because they are either considered illegal by law or state constitution, or the state lacks authority to conduct them:AlaskaIdahoIowaMichiganMinnesotaOregonRhode IslandTexasWashingtonWisconsinWyoming
Although Montana statute allows so-called "safety spotchecks" by law enforcement, the code does not specifically refer to sobriety checkpoints (even though they have been conducted within the state). Texas prohibits checkpoints based on its interpretation of the U.S. Constitution.
Talk to a DUI Attorney in your area if you would like more detailed information about the legality of DUI checkpoints in your state.
Drunk Biking and Boating Etc. + Although most DUI and DWI cases involve automobiles, trucks, SUVs and sometimes motorcycles, there are a large number of DUI cases involving vehicles that may be quite unlike the standard car. Other times courts are faced with cases that don't even involve a motorized vehicle, such as drunk biking. Here is an overview of how drunk driving laws treat bicycles, as well as some examples of non-automobile DUI's.Bicycles and DUI Laws
States and courts are split on the subject of drunk biking. Some people automatically doubt the amount of harm a bicyclist can cause to others, considering the nature of a bicycle. However, some states and their laws acknowledge that, even assuming a bicyclist likely only harms themselves by drunk biking, an injury to a drunken rider can have a profound effect on others, especially their family members.
In any case involving an allegation of drunk bicycling, the first place to look to is the DUI / DWI Laws of that State. Some states exclude bicycles entirely from their definition of "vehicles." Other states limit the application of their DUI or DWI laws to "motor vehicles." But some states treat bicycles as just another vehicle on the road, regardless of the language used within their DUI laws. In these states, drunk bike riders face the same potential legal landmines as any other drunk driver.
In general, where a state law on drunk driving specifically prohibits the operation of a "motor vehicle," the chances are very high that the law will be interpreted by courts as not applying to bicycles or similar man-powered vehicles. On the other hand, where statutes apply more generally to all "vehicles," courts sometimes find that bicycles fall into this category. A local attorney can be of valuable assistance in finding out what, if any laws, apply in these circumstances, and can determine whether or not courts in the area have applied state DUI laws to cyclists.Non-Automobile DUI: Other "Motor Vehicles"
Falling into another grey area of DUI law are types of motorized transportation that don't fit into the typical view of an everyday automobile. Some common examples of these are ATVs, pocket bikes (minibikes), golf carts, and other vehicles that aren't designed or intended for use on public highways.
Similar to the laws surrounding drunk biking, a good place to start in a non-automobile DUI case is with the laws of the state at issue. Some states create lists of "motor vehicles" that fit the definition under DUI laws, while others create definitions for those motor vehicles. The rules vary widely and it is best to consult your state laws, but here are some examples of non-automobile vehicles which have been found to qualify as "motor vehicles" under various state DUI laws:all terrain vehicles (ATV's)riding lawn mowerspocket bikesgolf cartsgo-carts
The general take-away from these examples, is that a vehicle that a wide variety of vehicles that have motors, wheels, and are operated by human drivers can qualify as motor vehicles for purposes of drunk driving laws (including horses and horse-drawn wagons). Once sharing public streets and highways, the amount of horsepower, the speed, or the danger posed (or lack thereof) by the vehicles may play a very limited role as far as drunk driving laws are concerned.
Boating Under the Influence Basics + States have drunk driving laws that were enacted to help keep drivers, passengers, and the community safe. But did you know that every state and the federal government have laws against Boating Under the Influence ('BUI') that allow law enforcement officials to stop boats and other watercraft, and make sure that boat operators and their passengers are safe enough to be allowed on the water?
Being charged with BUI can put your legal freedom at stake, and have serious financial consequences. You could have a criminal record, face jail time, incur heavy monetary fines, and face increased boater and auto insurance rates.
A rise in alcohol and drug-related boating injuries and fatalities prompted state legislatures to enact BUI laws. Over half of all boating accidents involve alcohol or drugs, and alcohol is the leading contributing factor in fatal boating accidents, according to the Insurance Information Institute. The U.S. Guard reports that BUI incidents increase boating fatalities by approximately thirty-four (34%) percent.
Whether you operate a fishing boat, sailboat, yacht, personal watercraft, or sailboard, you could be charged with BUI. Just like driving under the influence ('DUI'), legal penalties can range from civil fines and the forfeiture of your boating license, to prison time in criminal cases for causing a death while boating under the influence of alcohol or drugs.
Since boating accidents and injuries rise dramatically when the weather is warmer, it is important to annually review boating safety requirements, and know how boating while intoxicated ('BWI') and BUI laws and regulations affect you.
BUI: The Basics
The U.S. Coast Guard warns that "alcohol is more hazardous on water than on land." The federal law enforcement agency cautions that BUI regulations exist to prevent and minimize the possibility that an intoxicated person will operate a vessel on the water, reduce the threat of harm to oneself and others, and use criminal and civil laws to discourage operating a boat or watercraft while drunk or under the influence of narcotics. Federal and statute authorities can pull the operator of a boat or other watercraft over, just like on the highway or street if you are suspected of drunk driving. Different factors can affect a boat operator's physical and mental abilities while on the water. These include heat, sun, noise, wind, glare, and the motion of a boat on the water for a long period of time. These factors are often referred to as 'boater's fatigue.' If alcohol and drugs are also involved, one's ability to safely operate a vessel on the water can be severely affected.
Law enforcement officials may also set up BUI checkpoints on the water, just like roadside DUI checkpoints, to question and check boat operators for Boating Under the Influence ('BUI'). Some states do not even require 'probable cause' before law enforcement officials can board your boat. In Delaware, they can just do it.
An experienced lawyer knowledgeable about defending DUI and BUI cases can help you know your rights and legal defenses to charges of boating while drunk.
Consequences of a BUI Conviction
Given the rise in boating injuries and fatalities by recreational and commercial boaters, convictions for boating under the influence can have severe consequences.
You could have a criminal record, not simply a fine like a traffic ticket.
Recreational boat operators could have their boating licenses suspended or revoked. Repeat offenders could face higher consequences, as do boaters convicted of BUI while minors were on board, or who gave alcohol or drugs to minors on the watercraft. Your driver's license may also be affected by a BUI conviction.
Commercial boat operators could lose not only their license, but their livelihood.BUI convictions can also generate monetary fines and affect your boat and car insurance rates. A court or administrative judge may also require people convicted of boating while drunk or under the influence to get alcohol and drug counseling.
A felony conviction could mean you lose your right to vote.
BUI: Elements of the Offense
Most state laws define crimes of drunk boating as follows: operating a watercraft on a body of water while under the influence of alcohol. Some state laws provide for a per se BUI offense, which a person commits when operating a boat or other watercraft on the with a blood-alcohol concentration ('BAC') of .08 percent. While most state BUI laws have BAC level requirements of .08 percent, some are slightly higher at .1 percent.
More than twenty states also have BUI laws relating minors. Some state laws make any amount of alcohol in a minor's blood a per se (i.e., automatic) BUI legal offense. In California, people younger than 21 years-old with BAC levels of at least .01 percent cannot even use water skis.
Boating Safety Tips
To avoid being coat in a legal situation that could affect not only your own freedom and safety, but that of friends, family, and other boaters, remember the following:Be extra careful on major holiday weekends. The weekends of Memorial Day, Fourth of July and Labor Day are considered the deadliest weekends both on the water and on the road for accidents involving alcohol. Take extra care to use defensive boat operating skills during these weekends, and be aware that local law enforcement officials will step up their efforts to identify boaters who are under the influence. Know your local boating regulations. If you trailer your boat to another state, or to Canada, read and clearly understand what the local regulations say about open containers of alcohol in a boat and BUI laws. Make sure that you and all passengers on the boat wear life vests. Because alcohol, combined with the elements, can impair your balance, wearing a life vest is a good idea. Many boating deaths and accidents could be avoided each year if boat operators and their passengers would simply wear their life vests. Most states also have laws requiring children to wear life vests at all times while on a boat. Get a lawyer. Because defending against a charge of operating a boat under the influence requires an understanding of scientific and medical concepts, it's best to hire an attorney who specializes in BUI and DUI law. FindLaw can help you quickly locate an attorney who is knowledgeable about DUI and BUI law.
Q: Can law enforcement pull me over in my boat, just like in a DUI case? A: Yes, state and federal law enforcement officials can pull a boat operator over on suspicion that the operator is driving a boat while under the influence, just like they can when you are driving a car.
Law enforcement officials may also set up BUI checkpoints on the water, just like roadside DUI checkpoints, to question and check boat operators for Boating Under the Influence ('BUI'). Some states do not even require 'probable cause' for law enforcement officials to be able to board your boat. In Delaware, they can just do it.
Even if they don't charge you with violating federal laws prohibiting boating while intoxicated, federal authorities like the U.S. Coast Guard can also hold and transfer you to state authorities for additional prosecution.
Q: Can I lose my boating license or permit from a BUI conviction? A: Perhaps. It depends on your state's boating regulations and other laws. A lawyer can help you with this important question.
Q: Do many people have criminal convictions for boating while drunk? A: Yes, and with more states focusing on BWI violations, the number doesn't appear likely to decrease.
Q: Do I have to go to jail for a BWI conviction, or do i only have to pay a fine? A: The answer depends on your state's boating and criminal laws, the particular violations that you are accused of, and the legal penalties for a particular conviction.
Q: Do I have to submit to a breathalyzer or blood test? A: Check with a lawyer. If you don't know, it might be wise to politely decline. Doing so in some states like Pennsylvania, however, could result in an automatic suspension of your boating privileges. In other states like Florida, your license cannot be automatically suspended for refusing to submit to a BAC test.
Q: Can I be subjected to a field sobriety test? A: Probably. State authorities may ask you to 'walk and turn,' recite a particular phrase, or other tasks. The general purpose of these tests is to help determine if you are able to perform basic functions required to safely operate a boat or other watercraft.
Q: Even if I'm convicted, can't I just perform 'community service'? A: Probably not. Many states require people convicted of BUI offenses to attend mandatory boater education classes, as well as alcohol and drug counseling. If this you are convicted of a criminal offense, you will have a criminal record. Depending on the severity of the conviction (i.e., if it is a felony or misdemeanor), you could face severe legal consequences and restrictions.
Underage DUI: Zero Tolerance Laws + It is illegal for people under the age of 21 to purchase and possess alcohol in all 50 states plus the District of Columbia. And while driving under the influence of alcohol (0.08 percent or higher blood-alcohol concentration) is illegal for all motorists, all states have so-called "zero-tolerance" laws for underage DUI offenses.
Zero-tolerance laws make it a criminal DUI offense for motorists under the age of 21 to drive with even a negligible amount of alcohol in their system, ranging from 0.00 to 0.02 percent BAC (depending on the state).
In light of such laws, even an innocent glass of wine with dinner could saddle a young motorist with a DUI charge. But the intent of these laws is to combat the very real dangers of underage drinking.
Nearly one-third of all deaths of 15- to 20-year-olds are the result of a motor vehicle crash and about 35 percent of those fatalities are alcohol-related, according to the National Highway Traffic Safety Administration. The alcohol involvement rate for young drivers is roughly twice that of over-21 drivers, according to the NHTSA, while underage drinking at even low levels presents a greater risk of fatal crashes.
The National Highway Systems Designation Act of 1995 mandated that states consider a 0.02 percent BAC (or lower) for under-21 drivers to be driving under the influence in order to qualify for Federal-Aid Highway Funds. To comply, as all states eventually have, they had to set 0.02 percent BAC as a per se offense. That means police don't have to prove intoxication as long as the driver is above the stated limit.
Beyond the obvious risks to health and safety posed by underage drinking and driving, DUI offenses can have long ranging implications which reach far into a young driver's future
DUI School and Alcohol Treatment + Mandatory alcohol education, assessment and treatment laws require attendance at DUI prevention programs geared toward alcohol education or therapy. Sometimes as part of a suspended sentencing arrangement or condition of probation a judge may order DUI/DWI offenders to attend such programs to teach them about alcohol dependency and the consequences of DUI.
Known sometimes as "DUI School," "Drunk-Driving Education" or "AEP," alcohol education programs can often replace, reduce or eliminate harsher DUI penalties in drunk-driving cases, such as court fines, license suspension and jail time.
DUI offenders who successfully complete the terms of their alcohol education or therapy program may often - but not always - have their driving privileges restored. Conversely, offenders who fail to comply with the terms of their program are not eligible for license reinstatement and may be returned to the courts for further action.State Alcohol Education, Assessment and Treatment Laws
Alcohol assessments are conducted before trial but after sentencing. Both state DUI criminal courts and the Department of Motor Vehicles (DMV) can order a DUI offender to attend alcohol education classes or treatment programs, the results of which are taken into consideration in final sentencing.
States with mandatory alcohol education laws require convicted offenders to complete an alcohol education program before their driving privileges can be reinstated. Likewise, mandatory alcohol assessment/treatment laws require convicted DUI offenders to undergo an assessment of alcohol abuse problems and participate in required treatment programs.
Of the states that require mandatory DUI prevention programs, 60% of those states require both alcohol education and treatment.
To find out if your state requires alcohol education and/or treatment for DUI offenders, see this breakdown of state DUI/DWI laws.DUI School Eligibility
Eligibility of alcohol education and treatment programs is not automatic, unless it is mandatory. Factors a judge may consider when deciding whether to allow alcohol education include:Whether you have any prior DUI charges (for example, as a first-time, repeat or multiple offender)Your blood alcohol content when you were arrestedWhether someone was seriously injured (or killed) during the accidentWhether you have previously participated in a similar program
Even if the judge does not order alcohol education as part of a DUI sentence, some states require you to attend alcohol education courses or therapy in order to get your driver's license reinstated after a DUI. In these states, you'll need to complete alcohol education or therapy in a state-approved behavioral health program and provide proof of attendance to the state's DMV office.Types of Alcohol Education and Therapy Programs
There are different levels of alcohol education and treatment programs with varying degrees for length of treatment and criteria, depending on the state. Most states, for example, allow minors under the age of 21 and DUI first-offenders to undergo "Level I" alcohol education courses -- typically consisting of 12 hours (or two days) of education about the effects of alcohol.
Conversely, some states may require adult drivers convicted of alcohol-related charges to participate in "Level II" alcohol education courses -- which typically include education but also therapy in a state-approved program. The length of the therapy increases depending on the severity of the violation and whether the offender has had multiple DUIs.
Generally, Level I alcohol education is not likely unless the blood-alcohol level (BAC) is below or very near .10 and there were no aggravating factors, regardless of a state's guidelines.Duration
Like other aspects of DUI/DWI cases, the duration of an alcohol education program depends on a number of factors, such as the number of prior DUI convictions a driver has within a certain time period or whether it is a first-time drunk-driving offense.
For instance, the standard first-offender alcohol education program might require attendance at a three-hour session for 12 weeks, or approximately 36 hours of course work. It may be possible to get a restricted driver's license to allow for driving to and from the program.
The standard program for second-offenders, however, may be divided into several phases, and typically begins with mandatory attendance at weekly sessions, gradually changing to every other week.
Finally, there is often up to a 30-month program for multiple offenders.
While alcohol education classes are mandatory in some states, the duration requirement can sometimes be reduced or eliminated through skilled negotiation and plea bargaining.Specific Alcohol Education and Treatment Programs
One of the most well-known alcohol education and treatment program in the country is Alcoholics Anonymous, frequently referred to as "A.A." There are A.A. chapters in every state of the country and in many local cities. In these classes, there is generally an open discussion centered upon the harmful effects of alcohol and consequences of drunk driving. Typically, there is open and frank discussion about a person's particular situation, as well as a discussion to help identify symptoms of (and treatments for) alcohol abuse.
Besides Alcoholics Anonymous, there are other schools and treatment programs designed to help DUI offenders to stop drunk driving, such as Mothers Against Drunk Driving (M.A.D.D.) -- which often partners with organizations to share personal stories of friends or family members who were victims of drunk driving -- and many others. Check with your state's National Highway Safety Commission's website for information and locations of alcohol education and treatment programs in your area.
Note: Persons arrested for DUI will be subject to additional criminal law penalties not addressed here -- including jail time, fines, and community service. Such criminal penalties are typically more discretionary than those identified in this chart, and are therefore more difficult to accurately predict. Generally speaking, first-time DUI offenders can expect to incur a fine, and face the possibility of jail time. Repeat DUI offenders will incur harsher fines, and will almost certainly be sentenced to a number of days in jail. Penalties will be harsher still if the DUI offender was involved in an accident in which someone else was injured or killed.
Administrative License Suspension/Revocation The Administrative License Suspension/Revocation penalties indicated here refer to minimum mandatory penalties imposed on drivers whose BAC is above the state limit for intoxication, or drivers who refuse to submit to BAC testing. Administrative suspension or revocation of a driver's license is usually carried out by a state agency (such as a Department of Motor Vehicles), distinct from any criminal court penalties. Most states impose harsher penalties for second or third DUI offenses, typically defined as those that occur within five years of a prior DUI offense.Note: the penalties identified here do not include variations for DUI offenders operating commercial vehicles, or drivers who have violated "zero tolerance" and "enhanced penalty" DUI laws. Most states recognize different sanctions for these types of DUI offenses.
Mandatory Alcohol Education and Assessment/Treatment Alcohol education and treatment/assessment penalties for DUI offenders can include mandatory attendance at DUI prevention programs, and assessment of potential alcohol dependency problems. Such programs are often made "conditions" of a suspended sentence or probation, meaning that a DUI offender can avoid jail time and payment of hefty fines if he or she completes participation in the program.
Vehicle Confiscation Vehicle confiscation penalties allow a motor vehicle department or law enforcement agency to seize a DUI offender's vehicle, either permanently or for a set period of time. Such penalties typically apply only to repeat DUI offenders, and often the return of the vehicle requires payment of fines and significant administrative costs.
Ignition Interlock A vehicle ignition interlock breath-testing device measures a vehicle operator's BAC, and will prevent operation of the vehicle if more than a minimal amount of alcohol is detected (i.e. BAC level of .02). DUI offenders will usually be required to pay the costs of installation, rental, and maintenance of an ignition interlock device.
Electronic Warrant Sample
SAMPLE STATE OF __________
[LIST LOCAL COUNTY/PARISH/CITY/ETC] SAMPLE AFFIDAVIT FOR SEARCH WARRANT BEFORE ME
Whole blood or alveolar lung air from the person of:
RACE/SEX _______________ DOB_____________DL#______________ who is currently under arrest for the offense of Operating a Vehicle While Intoxicated ______ Offense and in affiant’s custody within the territorial jurisdiction of this Court.
The facts and circumstances establishing the basis for the issuance of this Search Warrant are as follows: , the undersigned authority, personally came and appeared ____________________________________, a law enforcement officer in the [LOCATION], State of________, who requests that a search warrant issue for the following: Affiant is a full‐time law enforcement officer with _________________________________ and has been employed in law enforcement for ______ years. Affiant has successfully completed Police Officer Standardized Training (POST) and is trained to perform the Standardized Field Sobriety Test (SFST) and is/is not (circle appropriate response) certified to operate the [name of breath test equipment used]. This experience and education has trained affiant to detect impaired or intoxicated drivers by:
1) Observing their driving behavior which includes but is not limited to weaving in and/or out of their lane of travel, traffic signal violations, and speeding; 2) Observing their physical characteristics which include are but not limited to: blood‐shot eyes, unsteady balance, slurred speech, and/or odor of alcoholic beverage; and
3) The use of Standardized Field Sobriety Tests including but not limited to the horizontal gaze nystagmus, the one‐leg stand and the walk‐and‐turn tests. These tests are used by the law enforcement profession and affiant finds they are accurate and reliable indications of intoxication (or lack thereof). Affiant has arrested numerous people for DWI based upon their poor performance on these tests (as well as releasing many people based upon their satisfactory performance on these tests). Over the affiant’s law enforcement career, affiant has made approximately ______ arrests for Operating a Vehicle While Intoxicated and observed the same or similar driving behavior and physical characteristics of alcohol/drug impaired driver that are listed above. Affiant has also formed opinions on alcohol/drug impaired drivers on many occasions and his suspicions have been confirmed by breath, blood, or urine samples that were administered after he performed his investigation.
In this case, affiant or a fellow known law enforcement officer was on patrol on the ____ day of __________________, 20___, at _______ o’clock a.m./p.m., when affiant or said fellow known law enforcement officer noticed the suspect operating a motor vehicle in[City, State]. Affiant personally observed or was advised by a fellow known law enforcement officer of the following regarding suspect’s operation of the vehicle (be sure to include location of operation):
Upon contacting the suspect, affiant personally observed and/or was advised by a known fellow law enforcement officer of the following that tended to establish that the suspect was under the influence of an alcoholic beverage or drugs:
Affiant then conducted Standardized Field Sobriety Tests with the following results:
Based upon the totality of the circumstances, including the suspect’s actions, statements, and performance as stated above, affiant was of the opinion that the suspect was intoxicated or under the influence of an alcoholic beverage/controlled dangerous substance at which time the suspect was arrested for the offense of DWI under the provisions of [State statute here].
The suspect was transported to affiant’s office, advised of his/her rights pursuant to [State statute here] and interviewed by affiant. During the interview, the suspect told the affiant the following:
After the interview, the affiant directed the suspect to submit to a breath test to determine suspect’s blood alcohol concentration, which the suspect refused.
Based upon the observations of the suspect operating his/her automobile, suspect’s physical characteristics, his/her performance on the standardized field sobriety tests, suspect’s statements to affiant and the education, training and experience of the affiant in investigating and arresting intoxicated drivers, affiant has probable cause to believe that this suspect is under the influence of an alcoholic beverage or controlled dangerous substance while he/she was operating a motor vehicle, as stated above.
WHEREFORE, affiant respectfully requests that a search warrant be issued ordering the suspect to submit to a [name of equipment] breath test at the direction of the arresting officer, or in the alternative, authorizing the affiant or any other peace officer in [City, State], to search for and seize whole blood in an amount sufficient for testing and analysis from the suspect in an appropriate medical setting, as provided for by law.
AFFIANT Tel: (xxx) _______________ Fax: (xxx)_______________ SWORN TO AND SUBSCRIBED before me on this _____ day of ____________________, 20___, at _______ o’clock a.m./p.m.
there exists evidence of ethanol, an alcoholic beverage or a Controlled Dangerous Substance in the breath/blood of the above described person, which constitutes evidence tending to prove the commission of the offense of Operating a Vehicle While Intoxicated in violation of [List Statute here]. I am satisfied that there is probable cause to believe that the evidence so described is located in the breath/blood of the above described person and that legal grounds exist for the issuance of a search warrant; therefore, IT IS ORDERED THAT:
1) the affiant shall immediately and personally serve a copy of this search warrant on the suspect; 2) THE SUSPECT, PURSUANT TO THIS SEARCH WARRANT, IS ORDERED BY THE COURT TO SUBMIT TO A BREATH TEST AT THE DIRECTION OF THE ARRESTING OFFICER to test for evidence of ethanol or an alcoholic beverage; 3) if the suspect refuses to submit to the breath test as ordered by the Court, affiant (or any other peace officer) is ordered to seize the above described person and obtain a sample of whole blood in an appropriate medical setting in strict accord with medically acceptable practices by a physician, physician assistant, registered nurse, emergency medical technician, chemist, nurse practitioner or other qualified technician, as provided by law; 4) the affiant shall preserve the original executed affidavit for the search warrant and the faxed return of the affidavit and search warrant signed by the judge.
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