I wrote this book out of necessity. After representing thousands of citizens accused of “drunken driving,” I know that no other book has ever been written that comprehensively addresses an accused citizen’s questions about what happens during the typical DUI-DWI case, especially one that will be contested and will be prepared for trial. Because my practice over the past 30 years has focused upon contested cases involving people arrested for drinking and driving (or driving after having used drugs), I realized that only a handful of attorneys in America would have sufficient trial experience to be able to write this book. I also knew that most of them probably would not undertake the endeavor.
I have interviewed nearly 10,000 potential clients over my career. I have handled more than 1000 successful trials, and an even larger number of successful pre-trial motion hearings and negotiations for non-DUI-DWI dispositions for my clients. Many of these frightened and confused citizens have expressed the same or similar concerns about what happens to their driver’s license, whether they would go to jail, and how a DUI-DWI conviction would impact their jobs, their ability to travel, or their ability to maintain or pay for automobile insurance. This book addresses those issues as well as hundreds of other issues relating to how to choose a qualified, experienced trial attorney and what to expect from each stage of a DUI-DWI case as it proceeds to trial and even beyond trial.
A person charged with a drunk or drugged driving offense faces an assortment of criminal and administrative court proceedings and potential penalties. On the criminal side, the defendant is usually charged with a traditional impaired driving offense (DUI, DWI, OWI, OUI, etc.) and may also be charged with a so-called "per se" alcohol offense [driving while having an illegal amount of alcohol in his or her system based on a breath, blood, or urine test], wherein it is not necessary for the prosecution to prove that the defendant was affected or influenced by the alcohol he or she consumed. On the legislative horizon are new presumptive “impairment” levels for contraband drugs, as America addresses an increasing problem with drivers impaired either by drugs alone, or in combination with alcohol. Plus, many states are now making refusal of a driver to submit to testing a crime, and putting these drivers in jail for up to one year (or possibly longer), simply because they refused testing.
If the person accused of DUI-DWI has one or more prior alcohol-related or drug-related impaired driving convictions during a specified period (the so-called “lookback” period), the severity of the criminal charge may be enhanced to a higher misdemeanor or even upgraded to a felony. Many states have dropped the “lookback” period and now consider ANY DUI-DWI in the person’s LIFETIME in meting out harsh punishment. If the defendant was involved in an automobile accident that resulted in injury of or death to another person, he or she is likely to be charged with an aggravated driving under the influence offense, which is usually a felony. In several states, this type of offense can be accused and prosecuted as a MURDER charge.
The administrative penalties for either refusing to submit to testing requested by a police officer who believes that the person was drunk or submitting to testing and producing a test card “number” showing an unlawful blood or breath alcohol level can cripple a person’s right to drive. Additionally, in the states that have passed laws calling for heavy monetary fines or even jail penalties of up to one full year for a person who refuses to submit to testing, these punishments are added to the administrative license suspension or revocation sanctions. Other states are using whatever force is required to collect a sample from accused drinking drivers who try to refuse testing, with several reported cases of DUI-DWI suspects being killed by police as they try to obtain a blood sample.
A defendant who refuses chemical testing is normally subjected to an administrative license revocation or suspension. In many states a defendant who submits to chemical testing and is found to have a blood or breath alcohol level above a specified limit (presently 0.08% for drivers age 21 and older in all American jurisdictions) is also subject to an administrative license revocation or suspension. These administrative penalties (which typically come before any criminal trial) are normally imposed after a cursory administrative hearing that barely affords many licensees the chance to address many issues concerning the legitimacy of the pullover or the arrest.
Public campaigns pursued and financed by MADD and other political activists seek to wipe out drunk driving and drugged driving, or (as some writers have stated) possibly seek to reinstitute Prohibition. These efforts have caused state legislatures to make our national DUI-DWI laws more punitive each year, changing the DUI-DWI laws in virtually every legislative session. In addition, the American courts, from the United States Supreme Court down, are generally unsympathetic to those accused of drinking and driving (or drugged driving) offenses.
Because these laws change constantly, the reader will need to go on-line to get current information about his or her state’s laws on drinking and driving and drugged driving. A summary of the key provisions and code sections from the DUI-DWI laws of each American jurisdiction can be found here: http://www.theduibook.com/stateDUIDWIsummaries.htm.
In most states driving while intoxicated cases are being investigated, filed, and documented by police officers who specialize in such cases. Special training courses for prosecutors have been developed to try to assure that each DUI-DWI case concludes with a conviction. Armed with presumptively correct breath or blood test evidence, statutory presumptions (inferences) of impairment, the financial resources of the state, and a judge either sympathetic with (or whose campaign was largely funded by) MADD supporters, modern prosecutors do not take drinking and driving or drug-related impaired driving cases lightly. This fact complicates trials and makes the job of the criminal defense lawyer who undertakes the defense of these cases more difficult.
If nothing else, this book will assist the person accused of America’s most common crime to learn more about the legal landscape in order to be prepared for what lies ahead of him or her. This book should provide most accused DUI-DWI suspects some peace of mind. Being able to read about how things work within the court system provides a valuable and calming advantage as opposed to not knowing what to expect next.
For criminal defense attorneys who are busy defending DUI-DWI clients on a daily basis, this book will act as a silent partner to them as their clients read the book to supplement the interviews and briefings that the attorney and his or her staff provide to their clients. This book will be a time-saver for the attorneys who discover it, and a valuable source of client comfort to those attorneys and their staff members who are typically deluged with questions about the topics covered in this book.
I have attempted to support each theory or tactic with a citation of legal authority or an authoritative article or research study, but the reader should understand that drunk driving is essentially a local matter, and that the statutes and appellate court decisions in each state are unique to that state, in many instances. Due to this situation, it is impossible to cite every applicable legal principle or authority or case on every issue discussed in this book.
William C. Head Attorney at Law
DISCLAIMER
This book makes no claim to provide authoritative guidance in all criminal counts and every state. It is an overview of common procedures, tactics and stages of a DUI-DWI criminal prosecution. No person charged with impaired driving should rely upon this book as a do-it-yourself manual. This book is intended to be a written resource for accused drunken (or drugged) drivers to help supplement the readers’ comprehension of the complexities of criminal litigation. Although every effort has been made to assure accuracy in these chapters, no warranty that every maxim or strategy will work in any particular case is claimed by the author. The reader should always defer to his or her local DUI-DWI specialist for the final word on how the reader’s case should be handled.