Driving Under the Influence
Date Added: July 10, 2008 12:52:42 AM
While most states refer to the crime as DUI, others may call it driving while impaired (DWI), operating under the influence (OUI), driving while under the influence (DWUI), driving with an unlawful blood alcohol level (DUBAL) whereby the person arrested has given a blood, breath or urine sample.
Each of these states have per se laws defining it as a crime to operate a car, truck, motorcycle, or commercial vehicle on a road or highway if the driver is intoxicated with a blood alcohol concentration (BAC) at or above a proscribed level, usually 0.08 percent.
Whenever a vehicle is stopped by a law enforcement officer under suspicion that the driver is intoxicated, the officer will usually conduct a "field sobriety" test on the driver, and may ask for his or her consent to some form of chemical test for intoxication.
Field sobriety tests usually require the suspect to perform a number of tasks that are meant to assess any impairment of the driver's physical or cognitive ability.
Most times the driver is asked to walk a straight line, heel to toe; recite the alphabet backwards; and sometimes the officer performs the "horizontal gaze nystagmus" (eye and penlight) test.
During the vehicle stop, chemical tests may also be conducted to determine whether the driver has actually committed a crime. However, in some states the driver suspected of DUI is permitted to choose which type of chemical test is administered. Chemical tests include using a Breathalyzer that measures a driver's blood-alcohol concentration (BAC), or urine and blood tests performed at a hospital.
In most states, implied consent is assumed where a law enforcement officer conducts a chemical test to determine whether you’re intoxicated or not. The implied consent law stipulates that by driving a vehicle on state roads and highways, you have then given consent to submit to the approved test to find out if you’re driving under the influence of alcohol.
Under implied consent law, should you refuse to submit to such testing, the license sanction you face is likely to be harsher than that you will otherwise have had imposed on failing the DUI test. Your refusal to cooperate is actually used to increase the penalties imposed should you eventually be convicted for DUI. And this could mean a mandatory suspension of your driver's license, usually for six months to a year.
In order to be convicted of a drunk driving offense, the defendant must have been driving a vehicle or operating a vehicle or being in physical control of the vehicle.
However, this raises questions regarding the "driving" element of a drunk driving offense. For the sake of argument, it could be that the person was using the vehicle as a temporary shelter.
Determining whether a person was driving is a matter of jurisdiction but most courts across the United States use the following factors based on field evidence:
- Testimony outlining the defendant's unusual driving
- Testimony outlining the defendant's conduct or physical appearance
- Incriminating statements attributed to the defendant
- Testimony outlining the defendant's performance during a field sobriety test
- Tapes, video, and /or photographs from the scene where the defendant was driving and/or arrested
