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I just got arrested for a DUI / DWI / OWI / OVI / OUI / DUII offense. What happens now?
There is almost always two aspects to a DWI / DUI / OWI / OVI / OUI charge. (1) The penalty for failing or refusing a chemical test (a breath test; a blood test; and / or a urine test); and (2) the criminal charge of DWI / DUI / OVI / OWI / OUI. These are separate and distinct proceedings.
ISSUE ONE: The Implied Consent / Express Consent / Administrative License Suspension / Administrative License Revocation Proceeding: If you refused a breath, blood, or urine test, you likely face some type of license suspension under your state's implied consent law. Virtually every state imposes penalties (typically a license suspension or revocation) for refusing a chemical (breath / blood / urine) test. Additionally, 44 states impose penalties (either a suspension or revocation) for failing a breath or blood test (typically showing a BAC of 0.08 % or greater). If you're under 21 years of age, you typically "fail" a breath or blood test with a BAC of as little as 0.01% to 0.02%. Persons driving a commercial motor vehicle typically fail a breath or blood test with a BAC of 0.04% or more.
Read your paperwork carefully. You generally have a right to appeal / challenge any implied consent / administrative license sanction imposed. This proceeding is often referred to as a "DMV Hearing." Keep in mind that strict deadlines apply. Speak to a DUI attorney in your state for more information about your right to contest the implied consent suspension / revocation.
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ISSUE TWO: The DUI / DWI / OWI / OUI / OVI etc. Criminal Case: Separate from any suspension or revocation received for failing or refusing a breath, blood, or urine test is the criminal charge for operating / driving a vehicle under the influence / impaired / intoxicated. While laws vary from state to state, typically it is unlawful for any person who:
to drive or operate or be in actual physical control of a vehicle. Some states have additional charges such as driving while ability impaired, aggravated DUI's, and extreme DUI's and the like. In 41 states, there is some type of additional penalty for a high BAC. In nearly every state, a first non-injury DUI / DWI is a misdemeanor crime. Click on the links on the right side of this page for individual state information.
Important: The implied consent / express consent / statutory summary suspension proceeding and the criminal DUI / DWI / OVI / OWI case are completely separate from one another. Picture two separate boxes:
Will my license to drive be revoked / suspended?
RELATED TO ISSUE ONE ABOVE: Your driver license (or your right to drive if you do not have a valid license) may be suspended or revoked for refusing (and often for failing) a chemical (breath / blood / urine) test for alcohol and / or drugs. Again, you may challenge this revocation / suspension by filing a timely appeal. Keep in mind though that requesting an appeal will not necessarily overturn the suspension / revocation; rather, it merely provides with a chance to overturn the suspension / revocation. If you lose your appeal or do not appeal at all, the suspension takes effect.
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RELATED TO ISSUE TWO ABOVE: In most states, if you are convicted of the DUI / DWI / OWI charge, you will also typically lose your license (or your right to drive license) for a period of time. This suspension / revocation is generally separate and distinct from the implied consent / statutory summary suspension / revocation. Talk to your attorney for possible suspension and revocation lengths that you might face.
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Also keep in mind that your license can be suspended or revoked for a variety of reasons unrelated to any DWI / DUI arrest e.g. excessive tickets, excessive points, convictions for hit and run, drug charges, reckless driving, etc.
What happens if I get caught driving / operating while my license is suspended / revoked?
It is illegal to drive on a suspended or revoked license in every state. If you are on probation for a DUI / DWI conviction, you will also violate your probation by driving on a suspended or revoked license. Penalties for a driving / operating while your license is suspended / revoked vary from state to state but generally include fines, jail time, and an often an additional license suspension / revocation.
I really need to drive. Will I be able to get a restricted / occupational / conditional / probationary license or permit?
Most states offer some type of occupational type license that allows individuals to drive for limited purposes while serving a DUI / DWI related suspension. There is often a significant waiting period before you may be eligible for a restricted license. Also, you may have to install an ignition interlock device and / or file an SR-22 before qualifying. Your DUI lawyer can explain whether and when you may be eligible for this type of license.
A restricted license of this type generally only allows for driving to and from work, to treatment, and often not much else. No state issues restricted / occupational licenses that allow operation of a commercial vehicle.
What is the difference between a DUI, DWI, OWI, OVI, DAI, OVUII, DWAI, OUI, OUIL, DWUI etc.
These terms are all acronyms that refer to the offense commonly known as "drunk driving." Different states have different names for the crime. Typically those acronyms are based on the following abbreviations:
For example, in Texas, New York, New Mexico, North Carolina and New Jersey the charge is known as driving while intoxicated / impaired (DWI); likewise Illinois, Idaho, Florida, Montana, Alaska, Washington, and California use the term driving under the influence (DUI). Oregon uses the term DUII; Wyoming uses the term DWUI. Some states refer to "operating" instead of driving and use terms such as OWI (Wisconsin, Iowa, Michigan) or OVI (Ohio) or OUI (Maine / Massachusetts).
Some states have a two-tier drunk driving system. For example in New York, the standard charge is a DWI but they also have a lesser type charge called driving while ability impaired. The DWAI is usually seen when law enforcement believes you to be impaired by alcohol or drugs but your BAC is something less than 0.08 percent. Colorado is another two-tier state with a DUI and a DWAI. Maryland is similar but it uses the term DUI for the standard charge and driving while impaired (DWI) for the lesser type offense.
Other states, such as Arizona, have a different charge for high BAC (blood / breath alcohol content) DUI's. Arizona uses the term Extreme DUI for a BAC of 0.15% or greater and Super Extreme DUI for a BAC of 0.20% or more. Some states use the term "high tier" to refer to an elevated blood alcohol content.
Sometimes the term "Aggravated DUI" or "Aggravated DWI" is used. This might refer to a DWI / DUI with a suspended license, with a child in the car, or with prior DWI / DUI convictions.
I refused the breath test. That means I can beat the charges because they don't have any evidence to use against me. Right?
Not necessarily. Often times, the state has ample evidence to convict even if a suspect refuses a breath test. Depending on the circumstances, the state may be able to present a number of the following pieces of evidence:
Additionally, the prosecution can often use the test refusal itself as evidence that a suspect is trying to hide their level of impairment.
I took / refused to take field sobriety tests. How will this effect my case?
Field sobriety tests (commonly referred to as FST's) are tests generally performed at the traffic stop that are designed to assist an officer in his or her determination of a person's impairment if any. Unlike a breath or blood test refusal, drivers generally do not face any type of suspension or revocation for refusing FST's. Sometimes the refusal to perform these tests can be used against you at a trial. Likewise, if you take the tests, your performance may be used against you at trial.
The most commonly used field sobriety tests are the horizontal gaze nystagmus; the nine step walk and turn; nad the one leg stand.
Is a DUI / DWI / OWI / OVI / OUI a misdemeanor or felony offense?
In most states, a first-time, standard drunk driving offense is a misdemeanor crime. [In a small number of jurisdictions (Wisconsin and New Jersey), a first DUI / DWI arrest is not a crime; rather it is a traffic violation / offense.]
In many states, DUI / DWI charges can become felonies offenses if certain aggravating factors are present. These include: multiple prior DUI convictions; injuries to others; having a child in the car; etc. Talk to your attorney for more information about the level of offense you face.
What goes on at my first court appearance?
Your first court appearance is commonly called an arraignment or an initial appearance. At the arraignment you receive formal notice of charge or charges against you. This document is commonly called a complaint; an information; or an indictment. At the arraignment, you may apply for a court appointed attorney if you cannot afford to hire your own DUI lawyer. A second court date will then be scheduled for you.
What type of penalties might I face if I am convicted of a DWI / DUI offense?
Upon conviction of an DWI / DUI offense, a defendant can receive a variety of penalties including probation; alcohol treatment / education; attendance at a victims impact panel class; fines, jail time, and a license suspension or revocation. Additionally, in order to reinstate your license, you may have to install an ignition interlock device for some time; maintain an SR-22; pay a fee; and / or show proof of treatment completion.
What is a SCRAM device?
A Secure Continuous Remote Alcohol Monitoring (SCRAM) device is an ankle bracelet that periodically measures a person's BAC through perspiration (trans-dermal). A competing product working in a similar manner is known as BI TAD (Tansdermal Alcohol Detection).
Courts are increasingly ordering the wearing of the devices as a condition of probation. As you might expect, the devices are more commonly used for offenders with multiple drunk driving convictions. Will my defense attorney be able to plea bargain / negotiate my DWI / DUI offense down to another (lesser) offense? Possibly. Plea bargaining and charge reduction are two areas that any experienced DUI attorney would discuss with the prosecutor on the client's behalf. A few states like Oregon have anti-plea bargaining laws that prohibit reducing or changing a DUI / DWI offense to another charge under any circumstances. While many states allow plea bargaining this does not mean that the prosecutor will agree to lower or reduce the charge in every instance. Your best chance to get a reduction is with a low BAC and no prior offenses and no collision and no child passenger(s). Will a DUI / DWI conviction go on "my driving record?" Typically, yes. A DUI / DWI conviction will go on your driving record for some period of time. The implied consent suspension or revocation will usually appear on your driving record as well. Talk to your attorney about your state's individual procedures. Just how much jail / prison time will I have to do if I am convicted of a DUI / DWI offense? Most persons convicted of a DUI / DWI are placed on probation with a variety of conditions including some custody (jail) time. The amount of incarceration (jail or prison) received will depend on a number of factors, including (but not limited to) the following:
In some states, you will face minimal or no jail time for a first DUI / DWI / OWI offense. However, a second offense within the past five to ten years will result in at least some jail in most every state.
Will an out of state drunk driving conviction be counted against me for a DWI / DUI / OWI / OUI / OVI I received in a new state?
Typically, yes. Assuming that the new state identifies your prior out of state drunk driving conviction, it will generally count against you as if it had occurred in the new state. Your lawyer may be able to argue that the prior conviction is not similar enough to be treated as a prior conviction.
How old do my prior DUI's / DWI's have to be before they stop counting against me as "prior convictions."
It varies from state to state. Some states count prior drunk driving convictions no matter how old. Other states enhance penalties for subsequent convictions that are within five, seven, ten, or fifteen years of a prior drunk driving offense. Your attorney will let you know what you can expect if you have prior convictions.
I am licensed to drive in a state other than the state where I received my DUI / DWI offense. Will my license be suspended? The state that you're charged in only has the authority to suspend / revoke your right to drive in that state. However, 45 states and the District of Columbia have adopted an agreement known as the "Driver License Compact." Those states will report a DUI / DWI conviction to the home state of the driver (assuming the home state has also adopted the Compact). [Wisconsin, Tennessee, Georgia, Massachusetts, and Michigan are non-compact states.] The home state will then generally take action to suspend your license. Keep in mind that even if your state is not a compact state, the state may still learn of the conviction and suspend or revoke your license.
Are there other concerns if I live in state other than the state where I was arrested for my drunk driving charge?
If this is your second DWI / OWI / DUI conviction you will be subject to the Interstate Compact for Adult Offender Supervision. Once convicted, you will have to go through certain steps to return to your home state. You will be allowed to return however. If you are on probation for a second or greater DUI / DWI and you want to move out of state you will also have to go through the rules outlined in the Compact. Speak to your lawyer for more information.
Will I have to install an Ignition Interlock Device on my car?
An ignition interlock device (IID) also known as a breath alcohol ignition interlock device (BAIID) is a breath alcohol measurement device that is connected to a motor vehicle ignition. In order to start the motor vehicle, a driver must blow a breath sample into the device which then measures alcohol concentration. If the alcohol concentration exceeds the startup set point on the interlock device (e.g. 0.02 percent), the motor vehicle will not start. The devices also often require you to periodically provide a breath sample while driving.
Many states require the installation of an ignition interlock device during the period of time for any occupational / hardship license and / or for a specified period of time after you're eligible for reinstatement of your drivers license. An increasing number of states require an IID for a first DUI / DWI conviction: Alaska, Arizona, Arkansas, Colorado, Hawaii (beginning in 2011), Illinois, Louisiana, Nebraska, New Mexico, Oregon, Utah, and Washington. New York state has pending legislation that would require IID's for first DWI convictions.
Talk to your DUI / DWI lawyer about whether this requirement applies to your situation.
What happens if I was already on probation when I got arrested for a new DWI / DUI / OWI / OVI / OUI offense? Committing a new offense while you're on probation for a previous crime creates two problems. First, you face the new DWI / DUI charge. Second, you face a probation violation hearing for failing to obey all laws (a standard condition of any probation). The most serious scenario is when you receive a new DWI / DUI offense when you're already on probation for a previous DWI / DUI. When this happens, its in your best interest to speak to a criminal defense attorney as soon as possible. I was also arrested for a Hit and Run offense. What can I expect from that charge? Leaving the scene of an accident without providing / exchanging information is unlawful in every state. The offense has a variety of names: hit and run; hit - skip; failure to perform the duties of a driver; leaving the scene of an accident; failure to stop at the scene of an accident. Often times, the offense is a misdemeanor if only property is damaged. The offense is usually a felony if someone is killed or at least seriously injured. In some states, any injury in a hit and run results in a felony offense. Penalties include possible jail times, fines, and usually a license suspension or revocation of varying lengths. I'm not a United States citizen. Will a DWI / DUI conviction result in my removal from this country? Probably not. Typical, run of the mill DUI / DWI / OWI offenses (no priors; no injury; no child in car) are not considered crimes of moral turpitude or aggravated felonies resulting in removal. However, it is important to consult an experienced immigration lawyer about your situation just as you should consult with an experienced criminal defense lawyer about your pending DUI / DWI charge. Keep two points in mind. First, it is very important to answer honestly all questions about prior arrests / convictions on immigration and Visa applications and other forms. Lying on these documents is often considered more serious than any drunk driving conviction. Second, non-citizens (aliens) must take extra care not to drive on a suspended or revoked license. I am seeking a Visa to enter the United States. Will a drunk driving conviction result in a denial of my application? Not necessarily. A drunk driving conviction is not a statutory bar to receiving a Visa. However, a DUI / DWI conviction may require further investigation to determine whether the applicant has a physical or mental disorder and demonstrates behavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others. Typically, consular officers will refer applicants to panel physicians in two circumstances: (1) an applicant has a single drunk driving arrest or conviction within the last three years; or (2) two or more drunk driving arrests or convictions in any time period. What will a DUI / DWI / OWI / OVI conviction do to my ability to enter Canada? Having a DUI / DWI / OWI / OVI conviction generally makes you criminally inadmissible to Canada for at least five (sometimes 10) years from the time your sentence was completed. You will also likely be denied entry while your charge is pending. If your drunk driving charge is dismissed or reduced to a non-DUI charge, you may be able to travel freely to Canada. The following information is from the US State Department's website: Anyone with a criminal record (including misdemeanors or DUI / DWI / OVI / OUI / OWI) may be barred from entering Canada and must obtain a special waiver well in advance of any planned travel. To determine whether you may be inadmissible and how to overcome this finding, please refer to the Canadian citizenship and immigration website. For further information on entry requirements, travelers may contact the Canadian Embassy at 501 Pennsylvania Avenue NW, Washington D.C. 20001; (202) 682-1740; or the Canadian consulates in Atlanta, Boston, Buffalo, Chicago, Dallas, Detroit, Los Angeles, Miami, Minneapolis, New York, San Juan or Seattle. Consult Canada's Citizen and Immigration website to learn more. What will a DWI / DUI / OWI do to my ability obtain / maintain car insurance? If your insurance company finds out about your DUI / DWI one of two things typically happen. Either your insurer will raise your insurance rates or your insurance carrier may cancel your policy or simply choose not to renew your coverage. Your insurance company absolutely will learn of your drunk driving conviction if you have to file an SR-22 or an FR-44 (Virginia / Florida). What is an SR-22 / FR-44 / Certificate of Financial Responsibility? Many states require the filing of an SR-22 or an FR-44 following a drunk driving conviction. An SR-22 is a form from a licensed insurance company certifying that you have purchased liability insurance that meets the State's minimum required coverage limits. The SR-22 provides proof to your state's DMV that you are insured. If you cancel your insurance or your insurance company cancels your policy before your suspension period is over, the company must notify the DMV that the certificate is canceled. The SR-22 requirement must be maintained for a specified time period (often three years). Your DUI attorney will explain more about this requirement. An FR-44 is similar to an SR-22 but it generally requires drivers to purchase coverage that is at least twice the minimum required liability coverage limits for other drivers. Virginia and Florida require an FR-44 filing following a DUI conviction. Will the DMV or the court notify my insurance company that I got a DUI / DWI? Typically no. If your insurance company requests a copy of your driving record, your state DMV will supply it of course. However, state DMV's generally do not affirmatively notify insurance companies about drunk driving offenses on their own initiative. Neither does the court. How might my insurance company find out about my DUI / DWI / OWI / OUI / OVI? As noted above, if you have to file an SR-22 or an FR-44 your insurance company will learn about your conviction. Insurance companies also order your driving record when you first sign up for service and periodically thereafter. Also, your insurance company may ask you about your ticket history (often in the last three years) if you contact the company to report a claim or to add or delete coverage. If your insurance company asks you whether you have gotten a DUI / OWI etc., you must answer honestly. If you lie, you can expect the company to later deny coverage when you really need it. Are there special concerns for licensed pilots who get a DWI / DUI offense?
Yes. The FAA has special reporting requirements for certain Motor Vehicle Actions. A Motor Vehicle Action is any alcohol or drug related administrative action taken against your driver's license including suspensions, revocations, cancellations, or denials of a license to operate a motor vehicle (implied / express consent suspensions and revocations). A Motor Vehicle Action also includes a conviction for any alcohol / drug related motor vehicle offense (DUI / DWI / OVI / OWI etc. convictions). Learn more about reporting requirements here.
Are there special concerns for license professionals that receive a DWI / DUI / OWI / OUI / OVI?
Sometimes. Many states require licensed professionals self-report misdemeanor and felony convictions including drunk driving offenses. Sometimes mere arrests must be reported. Sometimes you must report arrests / convictions immediately and sometimes only upon license renewal. These requirements often apply to the following occupations:
Contact your state licensing authority for specific information. Your DUI attorney may also be able to advise you. I missed my appearance in court. What do I do now? Failing to appear (FTA) for court is to be avoided. When you miss a court appearance, bad things happen. At a minimum, the court typically issues a warrant for your arrest (known as a bench warrant). Sometimes, failing to appear on a traffic related crime / offense will result in an indefinite suspension of your drivers license (until the FTA is cleared). Sometimes, failing to appear / bail jumping is a new crime itself often referred to as "failure to appear." Talk to your attorney as soon as possible. Your only option may be to turn yourself in on the outstanding warrant. A new court date will then be scheduled. I failed to appear on my DUI / DWI charge, and I live in another state. Will I be extradited back to the charging state? While the law allows a state to extradite a person on a misdemeanor charge, often states decline to extradite persons on misdemeanor warrants due to the cost involved. Most states will extradite persons wanted for a felony DUI / DWI / OWI offense. My suspension / revocation is nearly up. How do I go about getting my license reinstated? Contact your state DMV to determine what you need to do to complete your reinstatement. Nearly every state requires some sort of reinstatement fee. Many states require you to install an ignition interlock device for some period of time. Some states also require the filing of an SR-22 or FR-44. If you were revoked (as opposed to suspended) you may also have to re-take a driving test. Can I represent myself in court on my DWI / DUI or other criminal charge(s)? Yes. You have a constitutional right to represent yourself on any criminal charge no matter how serious including a DWI / DUI charge. Keep in mind that DWI / DUI defense is a complex area of the law as shown by the information in this website. If you cannot afford to hire your own DWI / DUI attorney, you definitely should apply for court appointed counsel (a public defender) to represent you. An attorney can be helpful in a number of ways including:
You have no right to a court appointed attorney at any implied consent / administrative appeal proceeding. Copyright 2010, 2009 |
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Drunk driving criminal defense websites, including this one, provide general information about DUI attorneys and lawyers but do not provide legal advice or create an attorney / client relationship. General information cannot replace experienced legal advice specific to your charge, case, problem, or situation. Consult licensed Drunk Driving - DUI - DWI - OWI - OVI - DWUI lawyers / attorneys for advice about any specific problem or DWI / DUI charge that you have. Attorneys are governed by the Rules of Professional Conduct in their State or Commonwealth. This website may be considered an advertisement for services under these Rules. Information contained in this website is believed to be accurate but is not warranted or guaranteed in any way. No attorney associated with this website is specialized or certified in any way.
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