When an officer makes a traffic stop and has reason to believe you are driving under the influence (DUI) or driving while intoxicated (DWI), the officer will talk to you to assess whether you are impaired. The officer may ask if you have had anything to drink or where you were earlier in the night. You do not have to answer these questions. In fact, answering these types of questions can give the officer reason to believe you are intoxicated. Whereas, answering these questions may do little to stop an officer from continuing his assessment as to whether or not you are impaired.
If the officer believes that you are impaired, the officer will ask you to perform a variety of tests. These include field sobriety test exercises, such as walking toe to heel in a straight line or standing with one foot raised off the ground, saying the ABCs backwards, counting backwards, and an eye examination. These tests are administered to establish whether you are impaired. However, you do not have to take any of the field sobriety tests. While refusing to take these tests will limit the amount of evidence the state has against you in a criminal proceeding, the officer still has the right to arrest you for suspicion of drunk driving.
After administering the field sobriety tests, but prior to arresting you, an officer may ask you to take a preliminary breath test (PBT). For the PBT, you blow into a portable hand-held breath test device that calculates your blood alcohol content. You are not compelled to take a PBT and the PBT cannot be used against you in a criminal or civil proceeding.
Once at the station, you will be subjected to one or two chemical tests to determine your alcohol and/or drug concentration. You can refuse to take the chemical test(s) until you speak with your attorney. (For more information on refusing to take the breath test at the police station click here.) Meeting with an attorney can give you additional information to help you decide whether it is in your best interest to breathe into a chemical test. In fact, an attorney can even give you a breath test to determine if you should take the police’s chemical breath test. You have up to two hours to take the chemical breath test, so long as you are not delaying taking the test to sober up. Waiting for an attorney to arrive at the station is not considered delaying the test to sober up.
Blowing above a 0.08 on the in-station chemical breath test results in a (DUI) citation and subjects you to criminal and administrative penalties. The penalties are worse if you have a blood alcohol content of 0.15 or higher or if there was a child in the car. (If you are pulled over for driving erratically and have ablood alcohol content of 0.07 or less, you could be charged with driving while impaired.) If driving while impaired or under the influence, the police officer will confiscate your license and issue you a temporary license. The license is only good for 45 days. On the 46th day your license will be suspended. You can fight your suspension in an administrative hearing or enter the ignition interlock system to continue driving. You can extend the length of your temporary license to the date of your administrative hearing, by asking for a hearing within 10 days of being charged. You have 30 days to request an administrative hearing, but the 45 day time limit of your temporary license will not be extended if you request your hearing after the 10th day. (For more information on the administrative hearing click here.)
Criminally, you will have to go to court for a preliminary inquiry about 30 days after your arrest. This hearing advises you of your rights as a result of being charged. You must attend the preliminary hearing, unless you hire a lawyer and the lawyer notifies the court in writing that he or she is representing you. After the preliminary inquiry, (often a few months after) there will be a criminal hearing to determine whether you are guilty of a DUI or DWI. A guilty finding in the criminal system is separate from the administrative penalties. Judges have the ability to incarcerate you, fine you, or find you innocent. You can also enter into a plea deal with the states attorney. A common plea deal is probation before judgment (PBJ). A PBJ is not a guilty finding. In addition to these criminal sanctions, if the court finds you guilty, the Motor Vehicle Administration will put points on your record. Insurance companies will often increase your rates when you have points on your record.
