FAQs And DWI
Please remember, if you have been drinking and get stopped, if the officer asks you to submit to field sobriety tests, he believes that you are driving under the influence of alcohol. Therefore, anything you tell him or do will be used against you in court. Therefore, the best thing for you to do is to not do any field sobriety tests or take the breath test. This includes not letting the officer look at your eyes while you follow a pen or other instrument (nystagmus test). All the tests are evidence against you in court. Please do not be intimidated into taking the tests. Remember, whether you take the tests or not, you will probably be arrested for DWI/DUI.
Common questions regarding DWI/DUI
If a police officer asks you whether you’ve been drinking, what should you say?
You are not required to answer this question. However, you do not have the right to an attorney until you have submitted to (or refused) blood, breath or urine testing. Nevertheless, this does not mean that you cannot ask for one.
What is the officer looking for during the initial detention at the scene?
Symptoms of intoxication taught at the police academies are:
- Flushed face
- Red, watery, glassy and/or bloodshot eyes
- Odor of alcohol on breath or and/or clothing
- Slurred speech
- Fumbling with wallet trying to get license
- Failure to comprehend the officer’s questions
- Staggering when exiting vehicle
- Swaying/instability on feet
- Leaning on car for support
- Combative, argumentative, jovial or other “inappropriate” demeanor
- Soiled, rumpled, disorderly clothing
- Stumbling while walking
- Disorientation as to time and place
- Inability to follow directions
What should I do if I’m asked to take field sobriety tests?
The field sobriety tests (FSTs) used in Louisiana are heel-to-toe walk, one-leg stand, horizontal gaze nystagmus (they look at your eyes while using a pen light). Most officers will use a set battery of three tests. You are not legally required to take any FSTs. Most police officers have made up their minds to arrest you when they give the FSTs; the tests are additional evidence to use against you in court. Your results on those tests are determined by the completely subjective interpretation of the officer. This is why it is usually best to refuse to do these tests if you have been drinking.
Should I represent myself or obtain the services of an attorney?
You can represent yourself — although it is not a good idea. “Drunk driving” is a very complex field with increasingly harsh consequences. In fact, the third DWI is a felony and the State can go back ten years on previous DWI convictions. Additionally, DWI’s affect your insurance and drivers license. A qualified attorney, however, can review the case for defects, suppress evidence, compel discovery of such things as calibration and maintenance records for the breath machine, have blood samples independently analyzed, negotiate for a lesser charge or reduced sentence, obtain expert witnesses for trial, contest the administrative license suspension, etc.
What defenses are there in a DWI/DUI case?
Potential defenses in a given drunk driving case are almost limitless due to the complexities of the offense. Roughly speaking, however, the majority can be broken down into the following areas:
- Driving. Intoxication is not enough: the prosecution must also prove that the defendant was driving. For instance, in the case of accidents, there are no witnesses to the suspect being the driver of the vehicle.
- 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 other legal 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 breath test, or gave it incorrectly, this could affect the admissibility of the breath test 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”. Additionally, witnesses can testify that you were not drinking and appeared to be sober.
- Blood-alcohol concentration (BAC). 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.
- 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 30 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.
The BAC must relate back in time from the test to the time of stop and arrest.
- Regulation of blood-alcohol testing. The prosecution must prove that the blood, breath or urine test and machine complied with state requirements as to calibration, maintenance, etc.
If you are charged with DWI for being under the influence of any controlled dangerous substances or under the influence of a combination of alcohol and one or more drugs which are not controlled dangerous substances and which are legally obtainable with or without a prescription, it shall be an affirmative defense that the label on the container of the prescription drug or the manufacturer’s package of the drug does not contain a warning against combining the medication with alcohol.
After Arrest: What should I do now?
Contact us as soon as possible and prior to your arraignment if possible.
You were probably given a 30 day temporary license. You have 15 days to request an administrative hearing regarding the suspension of your license.
If you are represented by an attorney at the arraignment, you probably will not have to attend. At an arraignment, the court will enter a plea of not guilty on your behalf and give a date to return to court for a pre-trial conference or trial.
Suspension of Drivers License
If you are stopped for suspicion of DWI/DUI and refuse the breath test, your license will be suspended for one hundred and eighty days; if you are stopped for suspicion of DWI/DUI and take the breath test and the results show a .08 percent or higher, your license will be suspended for ninety days.
If you refuse to submit to the test, your driving privileges shall be suspended for one hundred eighty days from the date of suspension on a first refusal. Additional refusals cause longer suspensions. The suspension is automatic unless you request an administrative hearing. The administrative hearing must be requested within 15 days from the date of your arrest. At the hearing, an administrative law judge will decide whether the police officer had probable cause to arrest you for driving while intoxicated. No matter what anyone tells you, it is possible to avoid the suspension and get your license back.
LOUISIANA PENALTIES FOR DWI/ DUI CONVICTION
- On a first conviction the offender shall be fined not less than three hundred dollars nor more than one thousand dollars, and shall be imprisoned for not less than ten days nor more than six months.
- If the offender had a blood alcohol concentration of 0.15 percent as determined by breath test or blood test, at least forty-eight hours of the sentence imposed pursuant to Paragraph (1) of this Section shall be served without the benefit of parole, probation, or suspension of sentence. Additionally, your license shall be suspended for one year.
- On a conviction of a second offense, regardless of whether the second offense occurred before or after the first conviction, the offender shall be fined not less than seven hundred fifty dollars, nor more than one thousand dollars, and shall be imprisoned for not less than thirty days nor more than six months. At least forty-eight hours of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence. Imposition of the remainder of the sentence shall not be suspended unless:
- The offender is placed on probation with a minimum condition that he serve fifteen days in jail and participate in a court-approved substance abuse program and participate in a court-approved driver improvement program; or
- The offender is placed on probation with a minimum condition that he perform thirty eight-hour days of court-approved community service activities, at least half of which shall consist of participation in a litter abatement or collection program, and participate in a court-approved substance abuse program, and participate in a court-approved driver improvement program.
- If the offender had a blood alcohol concentration of 0.15 percent as determined by breath test or blood test, at least ninety-six hours of the sentence imposed pursuant to Paragraph (2) of this Section shall be served without the benefit of parole, probation, or suspension of sentence. Imposition or execution of the remainder of the sentence shall not be suspended unless the offender complies with Subparagraph (a) or (b) of this Subsection.
- On a conviction of a third offense, regardless of whether the offense occurred before or after an earlier conviction, the offender shall be imprisoned with or without hard labor for not less than one year nor more than five years, and shall be fined two thousand dollars. At least six months of the sentence of imprisonment imposed shall be without benefit of probation, parole, or suspension of sentence. If a portion of the sentence is imposed with benefit of probation, parole, or suspension of sentence, the court shall require the offender to participate in a court-approved substance abuse program and participate in a court-approved driver improvement program.
- In addition, the court shall order that the vehicle being driven by the offender at the time of the offense shall be seized and impounded, and sold at auction.
- On a conviction of a fourth or subsequent offense, regardless of whether the fourth offense occurred before or after an earlier conviction, the offender shall be sentenced to imprisonment at hard labor for not less than ten nor more than thirty years, and shall be fined five thousand dollars.
- In addition, the court shall order that the vehicle being driven by the offender at the time of the offense be seized and impounded, and be sold at auction.