Driving under the influence of intoxicating liquors (DUI) or any other substance which has impaired a person's ability to safely operate his motor vehicle, or operating a vehicle with a blood alcohol content greater than .10%, may be the most commonly committed crime in the United States.
Over the past 10-15 years, numerous State Legislatures have significantly increased both the criminal and civil penalties associated with a DUI conviction. The defense of a DUI for the businessman is not necessarily any different than the defense provided to a non-businessman. However, a DUI conviction for a businessman may prove more harmful to his career and reputation in the community.
Years before the public and State Legislatures focused attention on DUI offenses, it was relatively easy for an attorney or prominent person to plea bargain a DWI or DUI down to a lesser offense. Presently, it is illegal for the prosecutor or judge to plea bargain or reduce any charge brought under the DUI law to a lesser charge.
Many attorneys have been slow to respond and come to the aid of individuals charged with DUI, believing either that it was just a misdemeanor and not worthy of a zealous defense, or that there were no good defenses to these charges. To the contrary, a considerable body of specific law has developed in the area of DUI defense. Additionally, the Mississippi Rules of Evidence, The Uniform Circuit & County Court Rules, and most Constitutional rights apply to DUI offenses. A number of lawyers across Mississippi have focused on this area of the law and have developed considerable expertise.
In almost every major city in Mississippi, there is at least one police officer (and usually more) who is attempting to join the Governor's 100 Club. This Club is made up of police officers who obtain at least 100 DUI arrests during the course of a year. It was recently reported in the Clarion Ledger that a police officer in Hattiesburg, Mississippi recorded approximately 511 DUI arrests in one year! Numerous letters to the editor followed a few days later applauding and congratulating this officer for his arrests. Due to the prestige and glamour associated with DUI arrests, some police officers creatively hunt for persons driving on the roads that they can arrest for DUI.
No one should object to a police officer arresting an individual who is posing a danger to society by driving under the influence of intoxicating liquors or other substances. However, there are officers who travel the highways and roads looking for reasons to stop an automobile and check the occupant for DUI.
A minor traffic infraction occurring during the day may go unnoticed by a nearby police officer. At night, especially after 10:00 p.m. or near an area where alcoholic beverages are sold, that same infraction may provide the officer the probable cause necessary to stop and conduct field sobriety tests (FST). As a result of the heightened awareness by the public and MADD, the misdemeanor offense of DUI has become increasingly important to everyone - especially the businessman.
When an individual asks my advice on how to avoid getting a DUI, I can provide a very simple and guaranteed method - DO NOT DRINK AND DRIVE. Unfortunately, this advice is often given too late. By the time I give this advice, the person is usually already sitting in my office horrified by the arrest, the hours in jail, the treatment by either the officers or jail personnel, the humiliation, the fear of having his/her name published in the paper, the insurance consequences, the suspension of the driver's license, and lastly, my fee.
An individual charged with a DUI is entitled to a zealous attorney and a vigorous defense, notwithstanding the public clamor to the contrary. Our system of justice is adversarial and any DUI lawyer who accepts a DUI and does not provide a vigorous defense simply fails the system.Technical Aspects
As of July 1, 1996, new changes made in the DUI law went into effect. A DUI can occur in one of several ways:
In almost 30 years of law practice I have only seen and/or defended a handful of individuals charged with driving under the influence of any other substance. For many years, the majority of offenses involved persons who took the Intoxilyzer® test and registered .08% or greater. Lately, the majority of individuals coming into my office have been charged with what lawyers call "common law DUI" and breath test refusal.
The rise in the number of people who have refused to take the Intoxilyzer® test probably results from the increased public awareness and education. People are beginning to realize that in some geographical areas, there are officers who are making massive DUI arrests with little or no probable cause. People are also beginning to realize that there are geographical areas where you will be pulled over if you are out driving late at night, regardless of how well you are operating your automobile. People have also begun to realize that the Intoxilyzer® machines can malfunction, they are not as accurate and foolproof as alleged, and the Intoxilyzer® machines are designed to measure the "average person."Punishment
The punishment for a DUI conviction seems to get more severe every few years. Effective July 2, 1996, an offender may be punished as follows:
A fine range of less than two hundred fifty dollars to one thousand dollars.
The punishment for a second offense DUI increases dramatically. A person who receives a second offense within a five year period can receive the following:
Third or Subsequent Offender
A third or subsequent DUI committed within a five year period can result in:
In additional to these penalties, most major insurance companies will drop coverage on persons convicted of even a first offense DUI. Health insurance policies and disability policies also have special ratings for persons with DUI convictions.Practical Pointer
It is important to understand that Mississippi does not have a DWI (Driving While Intoxicated) and a DUI (Driving Under the Influence) law. We only have a DUI law. Driving while drunk (DWI) is simply not a separate offense any more, nor has it been for many years.
Too often I hear people who have come to my office seeking help with a DUI arrest say, "But I wasn't drunk!" While not being drunk is certainly a positive factor in a person's defense, it does not guarantee an acquittal. Driving under the influence or driving with a BAC level of .08% is an easy offense to commit even though the individual may not be drunk or show any outward signs of impairment.
Due to the varying absorption and elimination rate of alcohol in the human body, it is not possible to accurately predict when a person is going to be "under the influence" or above a .08% when he operates a vehicle after drinking. Perhaps car manufactures could install Intoxilyzer® machines in automobiles. When you get into your automobile you could blow into a tube and if you were above .08% the automobile would not start.
Would this stop people from driving while having a BAC above .08%? Absolutely not. For example, an individual could have several drinks with a meal and leave for home. Upon entering the car the person may not have a BAC of .10%. Also, during the drive home the person's BAC level may not reach .08% or greater. But if the individual is stopped and administered an Intoxilyzer® test much later, the blood alcohol content may have risen to .08% or greater. This could result in a person being charged with DUI even though at the time of driving he did not have a BAC of .08% or greater.
Due to the individual rate of absorption and the numerous factors that effect absorption and elimination, an individual may be DUI at the police station but not DUI while operating his/her vehicle. Instances such as this happen every day across Mississippi and the United States.
Over the course of almost 30 years, I have had two clients arrested for DUI when they were on the street where they lived. Another was arrested after he pulled into his driveway and a few others were arrested in their neighborhood on their way home. It made no difference to the police officers that these people had safely driven home or were within one minute of their homes.
Also, countless people have been arrested for DUI when the probable cause for the stop was an extremely minor infraction, often not even resulting in the issuance of a traffic ticket.
Businessmen should and must appreciate that DUI is a thriving business. The odds often favor the business (Government). The business has the additional threat of imprisonment to collect their money. Simply put, DUI is the local government's new cash crop. While a DUI may not seem serious to many, the suspension of the right to drive nowadays cannot be ignored.
This brief paper cannot outline all of the defenses available to persons charged with DUI. A DUI charge that may seem hopeless can have several factual or constitutional defenses. For example, the officer may have made an improper stop, a brief investigatory detention to check a driver's license may exceed its lawful scope, an improper roadblock may have been conducted, field sobriety tests may have been administered improperly, or the officer may have not been certified to administer the tests.Advice
One of the most common questions asked and debated among lawyers is whether a person who is stopped should submit to the field sobriety tests, the portable breath test or the Intoxilyzer® test. It is generally agreed among lawyers that an individual should at all times be polite and courteous to a law enforcement officer who initiates a stop. However, a person is not required to perform field sobriety tests or blow into a portable breath test (PBT). There is no criminal or civil punishment for this refusal.
The refusal to provide a breath sample for the Intoxilyzer® machine does carry a civil penalty. A refusal results in a 90 day suspension of the driver's license and this suspension must be consecutive to any suspension given if a DUI conviction results. Also, anyone who refuses to provide a breath sample is ineligible to take advantage of the hardship driver's license provisions. While these are negative consequences, the opportunities for a successful defense increase in refusal cases and the insurance company cannot deny you insurance due to the refusal.
Our DUI laws will probably become harsher at some later point in time. Whether these harsher penalties are justified or not is left to the politicians and special interest groups. Preventing accidents and deaths by drunken drivers is a goal I wholeheartedly support. No lawyer who regularly represents persons charged with DUI's believes in drunk driving though the media and the public seem to form the opposite impression.
Frequently, a middle or upper-middle class businessman will sit in my office and complain about how he was treated during his DUI arrest. He will often complain about how the officer ignored all of his constitutional rights and even failed to read him his rights. During these times, I often wonder how often this same person complained about "criminals having all the rights" or about "all the drunks on the road."
It is easy to complain about the freedoms we enjoy when nobody threatens those freedoms. It is easy to forget that men and women died so we could live "free," and for Americans that freedom is often both cherished and taken for granted at the same time.
There is a thin line between a businessman and the next convicted DUI offender. The best advice is not to drink and drive. If that advice comes too late and your client is caught in the "business of DUI," provide a vigorous defense or advise him to seek advice from someone who has knowledge of this area. A person charged with a DUI often has a credible and completely reasonable explanation for the various reasons given by the law enforcement officer to justify the conclusion that he/she is driving under the influence. These explanations can be supported through your independent review of the scene, as well as other factual, scientific or medical research. The result of a guilty plea to DUI is always the same – guilty. The results of a trial quite often can result in the verdict of not guilty.
Please contact the DUI lawyers of Coxwell & Associates today for your free case evaluation.