DWI Defenses

“DWI” stands for “driving while intoxicated,” which is driving under the influence of alcohol. In some states, it might refer to “driving while impaired.” This is the name that some states give to the crime of driving while impaired by alcohol or other substances as well. In some states, it is known as “driving under the influence,” (DUI).

The exact definition of the crime and the punishment for a conviction depends on the law in the state in which the crime is committed. For example, California defines a driver as “under the influence” (DUI) when any substance impairs them to the level that negatively impacts their ability to operate a vehicle safely. The substance could be alcohol, but it can also be a controlled, prescription, or over-the-counter medication.

The law in the majority of states does not distinguish between substances that are legally obtained and those that are obtained illegally. If any substance makes a person an unsafe driver, they can be guilty of DUI or DWI.

What Are the Penalties for DWI?

Again, the exact penalties for conviction of DUI or DWI depend on the law in the state where the person commits the crime and is charged. But they can include the following:

• A misdemeanor or felony criminal conviction on one’s record;
• Payment of money fines;
• Mandatory minimum jail time, ranging from 24 hours in some states to up to one year;
• Suspension of a person’s driver’s license;
• If the offense is a second or subsequent offense, a person might lose their right to drive permanently;
• Attendance at mandatory drunk driving classes, a drug or alcohol treatment program, or DWI school;
• Community service;
• Requirement that a person uses an ignition interlock device (IID) in their vehicle to prevent them from further DWI offenses.

Even a misdemeanor DWI conviction in most states requires a person to serve a mandatory minimum jail sentence, even for a few days. While states may differ on jail sentences, they virtually all suspend a person’s driver’s license for some time after conviction. However, depending on a person’s criminal and driving records, they may qualify for a hardship driver’s license or an occupational license to drive to school or work.

A person’s auto insurance rates are also likely to increase after they are convicted of DWI.

Penalties may increase with repeat offenses. In some cases, penalties may also increase if the person’s blood alcohol content (BAC) is above .08% or if the incident resulted in serious bodily injury or significant property damage to other people.

What Defenses Do I Have for a DWI Charge?

Defenses also depend to some extent on the state in which the person is charged with DWI. But some defenses are generally available in all states.

It is important to remember that the prosecution must prove the elements of the crime of DWI beyond a reasonable doubt to win a conviction for the person charged. The person on trial, the “defendant” in legal terminology, may attack the prosecution’s evidence to create doubt in the jury members’ minds. Or, the defendant can present an affirmative defense. The defendant has the burden of proving an affirmative defense.

Some common defenses to DWI charges include the following:

• Improper Stop: Law enforcement must have what is called “probable cause” to stop a person while they are driving. “Probable cause” is a set of facts that justify a suspicion that a person has committed a crime. In the case of DWI, for example, driving erratically or too slowly for conditions would be probable cause to pull the driver over. If the police did not have probable cause to stop the driver, then evidence collected as a result of the stop could be suppressed. The prosecution might not be able to use it at trial;
• Duress: The person driving while intoxicated had been forced to drive under threat of serious bodily injury, e.g., someone put a gun to their head;
• Necessity: The person had a very compelling reason to drive while impaired, e.g., they had to take someone to the Emergency Room immediately;
• Miranda Warning Violation: if the police question a person without giving them the Miranda warnings, then any evidence the police find as a result of the questioning might be suppressed. The prosecution would not be able to use it at trial;
• Involuntary intoxication: The person driving while intoxicated can prove that they become involuntarily. They were not aware that they were ingesting alcohol, e.g., they were at a party where someone “spiked” the punch bowl;
• Automatism: The defendant could show that the actions that led them to be impaired and then to drive happened while they were in a state of unconsciousness;
• Challenging a Field Sobriety Test: Field sobriety tests are a series of tests that law enforcement may administer to a person suspected of DWI at the scene where they are stopped. Law enforcement administers the tests to collect evidence that the person is too impaired to drive. A defendant might challenge the test results or whether the officer had reason to administer them. The field sobriety tests are as follows:
  • Alcohol/Horizontal Gaze Nystagmus: The officer holds either a pen or flashlight close to the driver’s face and asks them to follow it with their eyes as it moves; The officer is looking for an involuntary jerking of the eyeball when the pen is as far to the side as possible. The quality of movement indicates a driver’s blood alcohol concentration (BAC);
  • Counting While Standing on One Foot: The driver is asked to stand on one foot with their hands at their side and the other foot extended. They may also be asked to count to a specific number;
  • Walking in a Straight Line: The driver is told to walk a straight line while touching the heel of one foot to the toe of the other;
  • Finger To Nose: The driver is told to stand with their eyes closed and arms extended and then touch their nose with one of their index fingers;
  • Alternate Clapping: The officer tells the driver to clap the palms of their hands together, then to turn their hands and clap the backs of their hands together. They must count to a specific number at the same time;
  • Recite The Alphabet: The driver is asked to recite the alphabet, either in whole or in part;
  • Count Backwards: The officer asks the driver to count backward from a specified number;
  • Fingers To Thumb: The driver has to touch a specified finger, e.g., their index finger, to their thumb.

A person who has performed field sobriety tests might be able to show that they were conducted improperly. Or they may produce evidence to show that they had a physical condition that affected their performance;

• Errors in the Prosecution’s Evidence: Errors may include mishandling a chemical test kit or incorrect recording of the results. Or a breathalyzer test may not have functioned properly;
• Rising Blood Alcohol Concentration: This is where the defendant claims to have been driving while their BAC was under the legal limit, but it increased as the field sobriety tests were administered. This can sometimes happen as it takes time for alcohol (or another substance) to be absorbed into a person’s bloodstream. But proving this would be challenging at best.

The results of field sobriety tests may either help the person by showing that they are not impaired or hurt them by serving as evidence that they were impaired and should not have been driving.

Is It Possible to Get Charges Reduced?

In some cases, the consequences of a DWI might be reduced. This can happen if evidence comes to light that tends to show the defendant’s innocence. It is possible that a DWI charge would be reduced from a felony to a misdemeanor, depending on the circumstances. Lastly, getting a charge reduced is more likely for a first-time DWI charge and less so if the offense is a second or subsequent DWI.

It is possible that the prosecution in a DWI or DUI case would offer to arrange a plea deal. Plea deals would usually be one of three types as follows:

• Plead Guilty to a Lesser Offense: Pleading guilty to a lesser offense than the one with which the defendant is charged: For example, a defendant charged with DWI might be able to plead guilty to reckless driving or some other traffic violation;
• Plead Guilty for Reduction in Punishment: A defendant might agree to plead guilty on the condition that they would not be punished with the imposition of a large fine or suspension or loss of their driver’s license;
• Plead Guilty to One Charge So Another Is Dropped: A defendant might agree to plead guilty to one charge to have another or other charges dropped.

Can a Lawyer Help Me with My DWI Defense?

The crime of DWI can often involve some serious criminal penalties and other consequences as well. You should consult a qualified DUI/DWI defense lawyer to resolve any issues.

Your lawyer can review the facts of your case with you and help identify any defenses that may be available. Your lawyer can then advise as to what your best options may be. Also, if you need to appear before a judge or attend a court hearing, your lawyer can also guide you during those critical times.