Depending upon the laws of an individual’s state, they are typically considered to be legally intoxicated if they have a blood alcohol content (“BAC”) of 0.08% or 0.10%. If an individual chooses to operate a motor vehicle after drinking alcohol or consuming drugs which impair their senses may face consequences, including:
Drunk driving is much more serious than a traffic citation and is considered to be a criminal offense. An individual who is charged with drunk driving typically only faces misdemeanor charges for their first offense.
They can, however, still be charged with a felony if they have injured another individual or have caused damage to property. Although most states charge drunk drivers with DUIs, each state has its own criteria for what is categorized as a drunk driving offense.
In addition, there are numerous varieties of potential charges which may apply. If an individual is convicted of a drunk driving offense it will appear on their criminal record.
If law enforcement suspects that an individual is driving drunk, they will have probable cause to pull the driver over. For example, if a driver is speeding, swerving all of the roadway, or if alcohol or drug paraphernalia is observed in the vehicle.
After pulling over a driver, the law enforcement officer may request that they step out of their vehicle and take one of the following tests to determine if they are sober or not:
- Breathalyzer: This is a handheld device that measures the concentration of alcohol in an individual’s system by having them blow air into the device. This test can be administered either at the scene where the vehicle was pulled over or at a police station;
- Blood or urine testing: These tests require a medical professional to conduct and produce lab results. In addition, law enforcement must first obtain a search warrant. As such, this test is not generally administered at the scene; or
- Field sobriety tests: These are commonly administered at the scene and include a variety of different activities which are designed to test an individual’s balance and agility. Examples include:
- touching a finger to the individual’s nose;
- reciting the alphabet; or
- standing on one foot while counting.
If the driver fails any of these tests, an officer will have grounds to ticket them and arrest them for drunk driving. In addition, if the individual refuses to perform any of the tests which may be administered at the scene, the officer may still arrest the individual if they suspect they were driving drunk.
It is important to note that the smell of alcohol from the driver’s breath or from open containers in a vehicle, even if they are empty, can be used as evidence to arrest an individual for drunk driving.
What are the Various DUI Tests?
There are three types of tests which are used to determine an individual’s blood alcohol level, or blood alcohol concentration (BAC). In certain states, a driver may be permitted to choose which test they would prefer to take.
There are some jurisdictions which do not offer all of the three tests. The three tests which may be available include:
- The breath test: This is the most common test. It measures an individual’s blood alcohol by having the suspect breathe into a machine;
- These tests rely on how much alcohol is absorbed into sacs in the lungs, and are highly inaccurate because they may actually measure alcohol residue in the mouth, esophagus, or digestive system, rather than the blood;
- In addition, bodily functions or using mouthwash, breath spray, or eating a breath mint may skew the results;
- Because of these issues, a breath test really only measures the presence of alcohol in the system, and does not necessarily produce an accurate figure of how much;
- The blood test: This test is the most accurate. It is highly specific and measures the presence of alcohol and drugs in an individual’s blood;
- It requires the police to draw a sample of blood for testing; and
- The urine test: This test is the least reliable and the least accurate. The time between an individual’s last drink and when they were tested can have a significant impact on the test;
- This test also measures the presence of drugs as well as alcohol;
- Some departments, however, have stopped using the urine test because of how inaccurate it is.
What are the Pros and Cons: Which Test Should I Take?
If an individual is provided with the option of choosing which test to take, it is important to note that the blood test is the most accurate test. Because the blood test is the most precise and accurate, it also shows the presence of other substances which are in the body.
If an individual submits to a blood test, it may result in them being exposed to more criminal liability. On the other hand, it may also demonstrate that there is nothing in the individual’s system.
The breath and urine tests are considerably less accurate. This means that even if an individual was not over the legal limit, the breach or urine test may indicate otherwise.
Because of these issues, the breath test and urine test may be more susceptible to a challenge in court.
How are Chemical Tests Different from Field Sobriety Tests?
If an individual is pulled over for suspicion of drunk driving, the law enforcement officer will typically ask the individual to submit to a field sobriety test which often includes:
- Reciting the alphabet backwards;
- Walking in a line;
- Moving a finger-to-nose test; and
- Following a light or pen with their eyes.
These are voluntary tests and an individual is not required to submit to them. It is important to note that, in some states, if an individual refuses to submit to a handheld breathalyzer may result in an automatic, temporary suspension of the individual’s license.
Can I Refuse to Take a DUI or DWI Test?
If an individual is arrested for a DUI or DWI, law enforcement may request they submit to a test to determine their blood alcohol level. As noted above, an individual may be able to refuse the tests, but it may result in consequences.
In some jurisdictions, law enforcement may physically restrain an individual in order to draw blood. It is more common for the refusal to take the test to result in an individual’s license being automatically suspended for a certain period of time.
In some jurisdictions, a prosecutor may be able to introduce the individual’s refusal as evidence at trial.
Do I Need a Lawyer?
If you have been arrested for DUI or DWI, it may be helpful to consult with a DUI/DWI lawyer. It is important to consult with your lawyer immediately to learn about your rights and available defenses.
It is important to remember that you are permitted to contact an attorney prior to submitting to certain tests. Having an attorney on your case may result in your charges being reduced, dropped, or negotiating a lesser sentence with the prosecution.
A DUI or DWI can have effects on all areas of your life, including employment and child visitation, so it is important to ensure your rights are protected by having an attorney.
