- Drunk driving, sometimes called driving
while intoxicated (DWI) or driving under the influence (DUI),
has two meanings:
- Driving with a blood alcohol level over
the state’s maximum permissible blood alcohol limit. The
limit varies from state to state, from 0.08% (in 15 states, including
California) to 0.10%. The limit is even lower in many European
countries, and in the United States, some states have imposed
"zero tolerance" limits for young drivers. You may
be considered "legally drunk" even though you do not
"feel" or look as though you are under any "influence"
from the alcohol. or
- Driving when your physical abilities are
impaired by drugs or a combination of drugs and alcohol. In the
eyes of the law, it makes no difference that the drug is legal
or illegal, prescription or over-the-counter. If taking that
drug impacts your senses of seeing, hearing, talking, walking
and/or judging distances, you may be guilty of a drunk driving
offense.
- Generally speaking, there are three kinds
of evidence that a police officer will consider and gather in
the investigation:
- gross observations of behavior in general;
- specific observations of balance tests
and the like (usually called "field sobriety tests");
and
- chemical test results of the motorist's
blood, breath or urine.
- A police officer may arrest a motorist
if the cumulative effect of the evidence convinces the officer
that he has "probable cause" or "reasonable cause"
to make an arrest. This is a far lower standard than the one
the state must prove at trial. There the case must be proven
"beyond a reasonable doubt." Although this is a high
standard, it is met every day in courts all over the country.
-
- In most states, there are three ways of
determining how much alcohol you have in your system: breath
or blood (and in 8 states, including California, urine). Usually,
you can choose which test you want to take.
-
- If you choose breath, you will blow into
a machine called a Breathalyzer that will determine the blood
alcohol in your breath. Many jurisdictions permit you to have
a second test and/or a blood or urine test. This is because a
breath sample is not saved and so cannot later be re-analyzed
by the defense.
- Breath tests are the least accurate in
determining the amount of alcohol you have in your system. This
is because the breath machine assumes that the breath is from
the lungs when it may be the alcohol residue still lingering
from the mouth, esophagus, or the digestive system. If you belch,
burp, hiccup, or vomit shortly before testing, or take a "breath
freshener" (e.g., Binaca, Listerine), or cough syrups, you
can bring vapor from alcoholic beverages still in the stomach
up into the mouth and throat, registering an inaccurately high
reading that would be used against you. Dental bridges and dental
caps can also trap alcohol.
-
- Analysis of a blood sample is potentially
the most accurate, since it shows the presence of both alcohol
and drugs. The least accurate and least reliable, by far, however,
is urinalysis.
-
- Thus, if you are confident that you are
sober, a blood sample is the wise choice; urine, being least
accurate and most easily impeached, is the best option if you
believe your blood-alcohol concentration is above the legal limit.
-
- There are a number of potential defenses
that can be raised in a given drunk driving case. Roughly speaking,
however, the majority can be broken down into the following areas:
- "He wasn’t driving". Intoxication
is not enough: the prosecution must also prove that the defendant
was driving. This may be difficult if, as in the case of accidents,
there are no witnesses to you being the driver of the vehicle.
Most drivers quickly admit they were driving, although they had
the right to remain silent.
- Probable cause. Evidence will be suppressed
if the officer did not have legal cause to (a) stop, (b) detain,
and (c) arrest. Sobriety roadblocks present particularly complex
issues.
- Miranda. Incriminating statements may
be suppressed if warnings were not given at the appropriate time.
- Implied consent warnings. If the officer
did not advise you of the consequences of refusing to take a
chemical test, or gave it incorrectly, this may affect admissibility
of the test results -- as well as the license suspension imposed
by the motor vehicle department.
- "Under the influence". The officer's
observations and opinions as to intoxication can be questioned
-- the circumstances under which the field sobriety tests were
given, for example, or the subjective (and predisposed) nature
of what the officer considers as "failing". Witnesses
can testify that you appeared to be sober.
- Blood-alcohol concentration. There exists
a wide range of potential problems with blood, breath, or urine
testing. "Non-specific" analysis, for example: most
breath machines will register many chemical compounds found on
the human breath as alcohol. And breath machines assume a 2100-to-1
ratio in converting alcohol in the breath into alcohol in the
blood; in fact, this ratio varies widely from person to person
(and within a person from one moment to another). Radio frequency
interference can result in inaccurate readings. These and other
defects in analysis can be brought out in cross-examination of
the state's expert witness, and/or the defense can hire its own
forensic chemist.
Testing during the absorptive phase. The blood, breath or urine
test will be unreliable if done while you are still actively
absorbing alcohol (it takes 45 minutes to three hours to complete
absorption; this can be delayed if food is present in the stomach).
Thus, drinking "one for the road" can cause inaccurate
test results.
- Retrograde extrapolation. This refers
to the requirement that the blood-alcohol concentration be "related
back" in time from the test to the driving (see following
discussion on "BAC defense"). Again, a number of complex
physiological problems are involved here.
- Regulation of blood-alcohol testing. The
prosecution must prove that the blood, breath, or urine test
complied with state requirements as to calibration, maintenance,
etc.
- License suspension hearings. A number
of issues can be raised in the context of an administrative hearing
before the state's department of motor vehicles.
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