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Just because you have been charged with DWUI does not mean you are guilty. Police officers are human, and they make mistakes. I have been defending people accused of DWUI for the last 25 years, and it can be a very defensible charge. Just because you have been arrested it does not mean it is all over, but it does mean you are facing two legal issues.
The first is the drunk driving case. Driving While Under The Influence is a misdemeanor criminal charge and can result in a fine of up to $750 and or 6 months in the county jail for the first offense if you are convicted. The penalties go up for subsequent DWUI violations within a 10-year period. Some WWUI violations can rise to the felony level. See Wyoming Statute §31-5-233.
The second problem is the Implied Consent violation. See Wyoming Statute §31-6-102. Implied consent concerns your driving privileges. This is a civil action where the State can suspend your driver’s license for some alcohol-related violations. It is called “implied consent” because the law says that if you drive a vehicle on a Wyoming public street or highway, you have impliedly consented to a test of your blood, breath or urine under specific circumstances.
The Constitution requires that a police officer must have some reason to stop a motorist — he need not have full-blown probable cause, but he must have a reasonable suspicion based upon objective facts which suggest that the person is not capable of safely operating a motor vehicle. Some police officers stop people for no reason, or for reasons that would not justify a stop. When this happens, the arrest resulting from an unauthorized stop may be unconstitutional. If that happens, a DWUI arrest could be completely invalid. Recently we were able to obtain a complete dismissal of a DWUI charge because the police officer did not have a valid reason for conducting the stop.
FIELD SOBRIETY MANEUVERS
After the stop, if the police officer has reason to believe that the driver is impaired, he can ask that the driver perform field sobriety maneuvers. These tests usually include things like counting backward, reciting the ABCs, standing on one leg, walking a straight line, and the horizontal gaze nystagmus test, where the officer has the driver watch his flashlight move from side to side. Field sobriety tests are hard to perform correctly completely sober, so if you are trying to do these tests at a time when you are scared and embarrassed, you may not do that well. This does not necessarily mean you were too intoxicated to drive safely. Still, the officer has a great deal of latitude in interpreting the tests, and they usually conclude that the driver is impaired. However, most arrests today are video and audio recorded, so it is possible for a trained lawyer to see whether the police officer conducted the tests correctly. If he didn’t, the arrest may be invalid.
If the police officer has probable cause to believe that you are too intoxicated to safely operate a motor vehicle and has placed you under arrest for drunk driving, he can request a test of your blood, breath or urine. In a DWUI arrest situation the police officer must follow the procedures for conducting this testing exactly or it may be inadmissible in court. Usually, the officer will request a breath test if he thinks you have been drinking; he may ask for a blood test or urine test if he suspects that you have consumed drugs of some kind. The fact that you have a valid prescription for a drug that you have taken is not a defense to driving under the influence of that drug. You can no longer refuse the test, and the police can obtain a warrant to take a sample of your blood without your consent.
If the test shows that you have an alcohol concentration of 0.08% or greater, you are in violation of the implied consent law. You can then also be charged with a DWUI. Use this tool to get an idea of how much alcohol it takes to reach a blood alcohol level of 0.08%. This is called a per se violation, and is punishable by losing your driver’s license for 90 days.
Under a per se violation, you may be able to get a conditional driver’s permit, or what some call a “work permit,” that allows you to drive while working or going to school. You are only entitled to one conditional driving privilege in any 5 year period. If you have already had conditional driving privileges from some prior violation you cannot get them again unless it has been more than 5 years since the last time. However, there are restrictions placed on where and when you are permitted to drive during the suspension period.
When you are arrested for drunk driving, the police will keep your driver’s license. They give you a document which acts as your driver’s license, but it is also an advisement of your rights concerning implied consent. You have the right to request a hearing to challenge the implied consent violation, but you must do so within 20 days of your arrest or your suspension begins automatically 30 days after the arrest. If you request a hearing, the suspension action is stayed until the hearing. The hearings are conducted by State Hearing Examiners and they are generally telephone hearings. If you lose at the hearing you have a right to appeal to the district court.
THE CRIMINAL CASE
In addition to the implied consent problem, you also must deal with the criminal charge of DWUI. The circumstances of your arrest will be very important in this proceeding. If you fight with the police officer, if you have been in a wreck while driving under the influence or you have a blood alcohol level over .15% your chances of negotiating a plea bargain short of a DWUI conviction are quite limited.
If you have already been convicted of a prior DWUI charge within 10 years, a second conviction will require that you serve at least 7 days in jail. A third conviction in 10 years has a mandatory 30 day jail sentence. You may be able to reduce the jail time by attending an inpatient alcohol treatment program.
Your case will usually be set for trial within two or three months of your arrest. You have a right to a jury trial, and you should never waive that right without talking to a lawyer first.
If you are convicted or plead guilty the court will order that you pay a fine, make a contribution to the crime victims compensation fund and pay court costs. Depending upon the facts, you may also be sentenced to serve time in the county jail. You will likely be placed on probation for an extended period of time. The court will order an Addiction Severity Index (ASI) evaluation. This evaluation will determine the level of treatment you will be required to obtain as a consequence of the conviction. You will also be ordered not to consume any alcohol or controlled substances during your probationary period and you may also be ordered to register with one of the day reporting facilities which require you to provide random urine samples. These tests can tell whether you have consumed alcohol within the last 72 hours. Any violation of your probation conditions can trigger a probation revocation.
There are a number of potential defenses to DWUI and implied consent violations. Each case is different and must be evaluated on its own merits. You should always consult a lawyer to advise you before you make any decisions in your case. You should know that when your attorney is negotiating a drunk driving case with the prosecutor, one of the first things they look for is the test result. If this is your first arrest for DUI and your blood alcohol is just slightly over the limit, most prosecutors will agree to some kind of first offender treatment that may allow you to keep the DWUI off your record.
If you have been charged with Drunk Driving, it does not have to be the end of the world. Contact the Whitaker Law Office today to learn your rights.