Total DUI

Blogs, local newspapers, and people in line at grocery stores across the country are repeating the same words--or versions of them.  "How can she deny it?"  It's a question that arises every time a high-profile actress or musician or sports figure gets arrested for DUI and then enters a not guilty plea.  It's a question that's often asked with a lot of passion and indignance.  But it's also a question that betrays a serious misunderstanding about the workings of our criminal justice system.

When a person is charged with a crime, that person is required to "enter a plea".  Although there are some minor variations and alternatives in some states, the basic options are "guilty" and "not guilty".  Remember, the defendant has to make that call early in the process, sometimes even before he or she has consulted an attorney.  In some states, if the defendant hasn't had the opportunity to consult with an attorney, the judge automatically enters a not guilty plea for him.

That's because when a guilty plea is entered, it puts an end to some very important options.  It relieves the state of the obligation to present evidence and prove its case.  It also removes any incentive for the state to negotiate for a more favorable sentence.

Many defendants who enter initial not guilty pleas ultimately plead guilty, after consulting with an attorney and working out a plea agreement with the prosecuting attorney.  But entering a guilty plea right off the bat would foreclose that process.  If a defendant pleads not guilty, she can later change her plea to guilty, but it's very difficult and sometimes impossible to change a guilty plea to not guilty. 

So what does an initial not guilty plea mean in a criminal case?  Here are just a few possibilities:

• I didn't do it
• I did it, but I don't think you can prove it, so I'm going to go to trial
• I don't even know whether or not what I did meets the statutory elements of the crime (in short, I don't know whether or not I'm guilty under the law)
• I'd like time to talk to an attorney about my options before I make a decision
  
• My attorney needs time to talk to investigate the evidence against me and advise me on how to proceed
• My attorney needs time to talk with the prosecuting attorney and try to arrange a plea agreement

The bottom line is that a not guilty plea is often no more than a means of keeping options open until more information can be gathered, an attorney can get involved and conduct some investigation, or plea negotiations are completed.  In fact, the prosecuting attorney is often right on board with the defendant entering a not guilty plea at that stage so that both sides have more time to consider and. negotiate.

Bayonne New Jersey police spotted a man slumped over the wheel of his Volvo, Tuesday afternoon. The officers charged him with DUI. The 45 year old, Fair Lawn New Jersey man, was sound asleep. When they woke him, he had bloodshot eyes, his breath smelled of alcohol, and when he stepped out of the vehicle he was unsteady on his feet. The man failed a field sobriety test and had a BAC of 0.13, well over New Jersey’s DUI limit.

The police report did not indicate whether the car's ignition was on. So, was the man DUI? New Jersey statutes define Driving While Intoxicated (DWI or DUI) as operating a motor vehicle while under the influence of liquor. The question for the court, here, is whether the ‘driver’ was operating a vehicle. He was asleep at the time. To be operating a vehicle, some states require that the motor be running, some that the key be in the ignition. It is unclear whether any state requires actual movement of the car.

MSN Money reports that the total cost of a DUI could run into five figures. Your fine is just the beginning. Costs for a DUI may include: Bail ($150 - $2,500), Towing ($100 - $1,200), High-risk insurance ($4,500 or more), Legal fees ($2,000 - $25,000), Fines ($300 - $1,200), Alcohol evaluation ($181 in Colorado for example), Alcohol evaluation and treatment ($250 - $2,000 for basic treatment), License reinstatement fee ($60 - $250), Miscellaneous fees ($200 and up). You may also suffer penalties outside of the legal system, like losing your job.

Legal fees reported by MSN Money represent fighting your DUI charge. Simply pleading guilty can cost as little as $500 in attorney fees. Pleading guilty, however, may not save you from bail, towing, fines, and alcohol evaluation and treatment costs. If a conviction would amount to a repeat DUI offense, hiring an experienced DUI lawyer may be important.

The questions arise all the time: How could I be arrested if my BAC was below .08? How could I get suspended from work for being under the influence if my BAC was below .08? How could I have gotten arrested? How could I have gotten kicked out of the high school basketball game?

These questions reflect a common but serious misunderstanding of the meaning of the .08 "legal limit". In every state, a person can be convicted of a crime for operating a motor vehicle "with a blood alcohol concentration of .08% or greater" (language varies from state to state).

That means it's a crime to drive with a BAC of .08% or greater. And that's all it means. States are free to write statutes that also make driving under the influence a crime, and allow for conviction with a BAC lower than .08% if you show signs of impairment. States are free to make it a crime to drive with a lower BAC if you're a minor. States are free to make it a crime to drive with a lower BAC if you're driving a commercial vehicle. And many do all three.

Outside the legal arena, the .08% "limit" has no application at all unless specifically adopted for some other purpose. Employers aren't bound by it. Schools aren't bound by it. And even the criminal justice system isn't bound by it outside the specific statutes that refer to it. For instance, the crime of "public intoxication" is not, in most states, dependent upon a BAC of .08% or greater.

Questions often arise as to how long the "look back" period is for purposes of enhancing DUI penalties or elevating DUI charges to felony status. There's no easy answer to that question, and not only because state laws vary. The number of DUI convictions and the time period considered for enhanced penalties or felony status does vary from state to state. However, the realities are even more complex.

In some states, the period runs from date of charge to date of charge--in others, from date of conviction to date of charge. Further, some states have alternate time periods during which a different number of prior convictions qualifies for enhanced penalties or felony treatment. For instance, in Ohio a drunk driver can be charged with a felony based on four offenses in six years or six offenses in twenty years, meaning that two separate calculations apply to every case.

If you've been charged with DUI and have one or more prior convications, make sure that you talk to a local DUI lawyer and fully understand how the repeat offender statutes apply in your case.

More than one question has been posed about what constitutes "driving" under DUI law. The answer, of course, is that it varies from state to state. However, the one thing that is clear and consistent is that you can't count on "driving" meaning what we typically think of as driving. That is to say, "driving" doesn't necessarily mean steering a car that's moving down the road under its own power.

For instance, in at least one state, steering a car in tow has been held to be "driving" for purposes of a DUI conviction.

Many states consider a person "in control of" a motor vehicle if the person is sitting in the driver's seat and the car is running--or even, in some states, if the keys are in the ignition and the car isn't running.

In fact, there's been at least one case in which the "driver" was convicted of a DUI committed while his keys were in his pocket.

There are too many variations in statutory language and in the interpretations of various courts to attempt to advance any kind of blanket definition. The bottom line is that "driving" doesn't necessarily mean what you think it does, and it's best to find out how it's defined in your state before it becomes an issue--or a criminal conviction.

Recently, a visitor to the site asked how it was possible to be charged with a DUI with a blood alcohol content reading far below the "legal limit".

Specific DUI laws vary from state to state, but there are at least two possible reasons that someone could be charged with a DUI despite a blood alcohol content of less than .08%.

One is that the driver might be under the age of 21. In many states, the "legal limit" for a driver under the age of 21 is significantly lower than .08%. In fact, in some states any trace of alcohol is sufficient to convict an underage drinker of driving under the influence.

Another possibility is that the driver had a blood alcohol content (BAC) reading somewhat lower than .08%, but also showed signs of impairment. The "legal limit" is simply the number above which a driver is automatically guilty of driving under the influence (or some related statute) without any other evidence. However, many states also allow for DUI charges and conviction when a driver has a slightly lower BAC reading but also fails field sobriety tests, drives erratically, or otherwise shows signs of being impaired.