FREQUENTLY ASKED QUESTIONS ABOUT DRUNK DRIVING

What do police officers look for when searching for drunk drivers on the highways?

If I’m stopped by a police officer and he asks me if I’ve been drinking, what should I say?

Do I have a right to an attorney when I’m stopped by an officer and asked to take a field sobriety test?

What is the officer looking for during the initial detention at the scene?

What should I do if I’m asked to take field sobriety tests?

Why did the officer make me follow a penlight with my eyes to the left and right?
Should I agree to take a chemical test? What happens if I don’t?
Do I have a choice of chemical tests? Which should I choose?
The officer never gave me a “Miranda” warning: Can I get my case dismissed?
Why am I being charged with TWO crimes?
The officer took my license and served me with a notice of intent to revoke after the breath test: How can he do that if I’m presumed innocent?
Can I represent myself? What can a lawyer do for me?
How can I find a qualified drunk driving lawyer?
What will it cost to get a lawyer?
What is the punishment for drunk driving?
What is a sentence enhancement?
What is a “rising BAC defense”?
What is “mouth alcohol” or “residual mouth alcohol”?
What defenses are there in an OWI case?
 

Q: What do police officers look for when searching for drunk drivers on the highways?

A: The following is a list of symptoms in descending order of probability that a person observed is driving while intoxicated. The list is based upon research conducted by the National Highway Traffic Safety Administration: Turning with a wide radius, straddling center of lane marker, “appearing to be drunk”, almost striking object or vehicle, weaving, driving on other than designated highway, swerving, speed more than 10 mph below limit, stopping without cause in traffic lane, following too closely, drifting, tires on center or lane marker, braking erratically, driving into opposing or crossing traffic, signaling inconsistent with driving actions, slow response to traffic signals, stopping inappropriately (other than in lane), turning abruptly or illegally, accelerating or decelerating rapidly, headlights off. Speeding, incidentally, is not a symptom of DUI; because of quicker judgment and reflexes, it may indicate sobriety.

Q: If I’m stopped by a police officer and he asks me if I’ve been drinking, what should I say?

A: You are not required to answer potentially incriminating questions-Don’t; A polite “I would like to speak with an attorney before I answer any questions” is an appropriate reply although you are not entitled to counsel during a roadside stop unless you are in custody and questioned. On the other hand, saying that you had one or two beers is not incriminating: it is not sufficient to cause intoxication–and it may explain the odor of alcohol on the breath.

Q: Do I have a right to an attorney when I’m stopped by an officer and asked to take a field sobriety test?

A: The law varies on this issue from state to state. In Wisconsin, there is no right to an attorney until you have submitted to (or refused) blood, breath, or urine testing once you are in custody and subject to questioning.

You are not legally required to submit to Field Sobriety Tests (FSTs) and it is not in your best interest to do so. Your license can not be revoked nor can you be cited for a refusal if you politely refuse to do FSTs.

Q: What is the officer looking for during the initial detention at the scene?

A: The traditional symptoms of intoxication taught at the police academy are:

Flushed face; red, watery, glassy and/or bloodshot eyes; odor of alcohol on breath; slurred speech; fumbling with wallet trying to get license; failure to comprehend the officer’s questions; staggering when exiting vehicle; swaying/instability on feet; leaning on car for support; combative, argumentative, jovial or other “inappropriate” attitude; soiled, rumpled, disorderly clothing; stumbling while walking; disorientation as to time and place; inability to follow directions.

Q: What should I do if I’m asked to take field sobriety tests?

A: There are a wide range of field sobriety tests (FSTs), including heel-to-toe, finger-to-nose, one-leg stand, horizontal gaze nystagmus, alphabet recital, modified position of attention (Rhomberg), fingers-to-thumb, hand pat, etc. Most officers will use a set battery of three to five such tests.

Unlike the chemical test, where refusal to submit may have serious consequences, you are not legally required to take any FSTs. The reality is that officers have usually made up their minds to arrest when they give the FSTs; the tests are simply additional evidence which the suspect inevitably “fails”. Politely refuse to do any and all FSTs whether at the roadside or some other place like the police station. In Wisconsin, the police want you to submit to FSTs for two (2) reasons. First, by submitting to the tests you are giving the officers facts to support a legal basis for arrest. This legal standard is probable cause. Secondly, the FSTs are used as evidence to prove the OWI charge. A chemical test result is not necessary to prove the elements of the OWI offense. That is why politely refusing all FSTs and not blowing into a hand held breath testing device in the field called a preliminary breath test or PBT is your best initial defense.

Q: Why did the officer make me follow a penlight with my eyes to the left and right?

A: This is the “horizontal gaze nystagmus” test, a relatively recent development in OWI investigation. The officer attempts to estimate the angle at which the eye begins to jerk (“nystagmus” is medical jargon for a distinctive eye movement or oscillation); if this occurs sooner than 45 degrees, it theoretically indicates blood-alcohol concentration over .05%. The smoothness of the eye’s tracking the penlight (or finger or pencil) is also a factor, as is the type of jerking when the eye is as far to the side as it can go.

This field sobriety test has proven to be subject to a number of different problems, not the least of which is the non-medically trained officer’s ability to recognize nystagmus and estimate the angle of onset. Because of this, the fact that the test is not accepted by the medical community, it is not admissible as evidence in many states; it continues, however, to be widely used by law enforcement. It is admissible in Wisconsin and is subject to what weight the fact finder either the court or jury, is willing to give it subject to cross examination.

Q: Should I agree to take a chemical test? What happens if I don’t?

A: The consequences of refusing to submit to a blood, breath or urine test varies according to the state. In Wisconsin, there are three adverse consequences:

Your driver’s license will be revoked for at least one year and up to two years depending on whether you have any prior convictions. A refusal violation, at this time, is a civil proceeding and is not a crime. Thus you can not be sent to jail for a refusal. However, a refusal can be counted as a prior conviction for purposes of charging you with a subsequent enhanced offense. For example, if you had a refusal violation in 1995 and are cited for an OWI or PAC violation in 2004 it will be charged as a second offense which is a crime.

Finally, the fact of refusal may be introduced into evidence at trial on the OWI charge as “consciousness of guilt”. Of course, the defense is free to offer other reasons for the refusal. Thus, the decision is one of weighing the likelihood of a high blood-alcohol reading against the consequences for refusing.

Q: Do I have a choice of chemical tests? Which should I choose?

A: In Wisconsin, you do not have a choice of a blood, breath or urine test. Rather, the arresting agency determines what their primary test will be, as a practical matter either blood or breath. While the law allows for urine tests, due to their unreliability, they are not used in Wisconsin. Since you don’t have a choice of tests the question becomes the chance of registering a high BAC-Blood/Breath Alcohol Concentration against the consequences for refusing. If you submit to the primary test offered by the arresting agency you have the absolute right to the alternative test free of charge. The officer can not interfere with your right to that alternative test or it can lead to suppression of the test results.

Q: The officer never gave me a “Miranda” warning: Can I get my case dismissed?

A: No. The officer is supposed to give a 5th Amendment warning once you are in custody and questioned, often, however, they do not. The only consequence is that the prosecution cannot use any of your answers to questions asked by the police after the arrest in its case in chief at trial.

Of much greater consequence is the failure to advise you of the standard “implied consent” law - that is, your legal obligation to take a chemical test and the results if you refuse. In Wisconsin this information is contained on a pink sheet which is called “The Informing the Accused.” This can effect the suspension and revocation of your license.

Q: Why am I being charged with TWO crimes?

A: In Wisconsin the traditional offense is “operating under the influence of an intoxicant (OWI). In recent years, however, 49 states have also enacted second, so-called “per se” offense: driving with an excessive blood alcohol concentration (either .08%–as in Wisconsin–or .10% in some other states). In Wisconsin BOTH offenses are charged unless a person refuses the chemical test however forcible blood draws are permissible under certain circumstances in Wisconsin and can still result in a PAC charge even if you initially refuse. The defendant can even be convicted of both but can be punished for only one.

Q: The officer took my license and served me with a notice of intent to revoke after the breath test: How can he do that if I’m presumed innocent?

A: Agreed, it is blatantly unfair. But the law in most states (including Wisconsin) having a “per se” statute (see question #10) provides for immediate suspension and confiscation of the license if the breath test result is above the legal limit (or, in the case of a blood test once the result shows a prohibited concentration.) Warning: Be aware of the 10-day deadline for requesting a hearing on the suspension. Once a prohibited concentration is registered you should receive a yellow sheet of paper which needs to be filled out to request an administrative hearing. We may be able to get your license reinstated pending the resolution of the charges.

Q: Can I represent myself? What can a lawyer do for me?

A: You can represent yourself–although it is not a good idea. “Drunk driving is a very complex area of the law with increasingly harsh consequences. There is a minefield of complicated procedural, evidentiary, constitutional, sentencing, and administrative license issues.

What can a lawyer do? Nothing (or worse) if he is not qualified in this highly specialized field–no more than a family doctor could help with brain surgery. A qualified attorney, like Attorney Stangl, can review the case for defects, suppress evidence, compel discovery of such things as calibration and maintenance records for the breath machine, have blood samples independently analyzed, negotiate for a lesser charge or reduced sentence, obtain expert witnesses for trial, contest the administrative license suspension, win trials and refusal hearings.

Q: How can I find a qualified drunk driving lawyer?

A: The best way to find a good DUI/DWI lawyer is by reputation. There are attorneys who have state and national reputations; these, of course, are expensive.

An excellent indication of quality and experience is membership in the National College for DUI Defense. Completion of that organization’s interactive three-day seminar presented at Harvard Law School every year is another clear sign of expertise

When you meet with the attorney, make sure of three things:

He has extensive experience in OWI and criminal litigation;

He has a reputation for going to trial in appropriate cases and winning, rather than just “pleading out” his clients; and

The financial terms of representation are clear.

Q: What will it cost to get a lawyer?

A: This varies, of course, by the reputation and experience of the lawyer and the geographic location. As with doctors, generally, the more skilled the attorney and the larger the city, the higher the fee. A related factor is the amount of time a lawyer devotes to his cases: the better lawyers take few clients, spending more hours on each.

The range of fees is significant. An OWI specialist with a statewide reputation for winning may charge five to ten thousand dollars or more depending on the facts. In addition, the fee may vary by such other factors as:

Is the offense a misdemeanor or felony?

If prior convictions are alleged, the procedures for attacking them may add to the cost.

The fee may or may not include trial or appeals.

Administrative license suspension procedures may also be extra.

The lawyer may charge a comprehensive fixed flat fee, or he may ask for the retainer in advance–to be applied against hourly charges.

Costs such as expert witness fees, independent blood analysis, service of subpoenas, etc. may be extra.

See-FAQ-Question #9, on Criminal Cases for general information on our fee structure.

Q: What is the punishment for drunk driving?

A: This varies according to the laws of the state and the customs of the local jurisdiction. In Wisconsin, a conviction for a first offense is a civil violation and involves a forfeiture, revocation, mandatory AODA Assessment and perhaps attendance at a Victim Impact Panel.

For a second offense the penalties upon conviction range from a minimum mandatory penalty of five (5) days and up to six (6) months in jail. A fine range from a minimum of $350.00 to $1,100.00 plus costs and administrative surcharge; mandatory AODA Assessment. Ignition interlock devices can also be ordered.

The greater the number of prior convictions the greater the jail and/or prison term that can be imposed, as well as fines and harsher penalties.

In Wisconsin, for purposes of evaluating prior convictions a ten year window is used but this window will not extend before January 1, 1989 for second offenses. However, for purposes of evaluating prior convictions for a third or greater offense the prosecution can go back lifetime.

If convicted of an OWI offense in Wisconsin that conviction now remains on your driving record abstract for life.

Q: What is a sentence enhancement?

A: Most states including Wisconsin increase the punishment in drunk driving cases if certain facts exist. The most common of these is an earlier conviction for the same or similar offense–usually within ten years for a second offense or lifetime for a third or greater offense. Other commonly encountered enhancements (which must usually be alleged in the complaint) include:

A child under the age of 16 was in the car at the time.

The blood-alcohol concentration was over. 20%.

The defendant refused to submit to a chemical test.

There was property damage or bodily injury.

In Wisconsin, the existence of significant personal injury or bodily harm caused by drunk driving elevates the offense to a serious felony. A death in Wisconsin while intoxicated can result in vehicular homicide charges.

Q: What is a “rising BAC defense”?

A: It is unlawful to have an excessive blood-alcohol concentration (BAC) at the time of DRIVING–not at the time of being TESTED. Since it takes between 30 minutes and 3 hours for alcohol to be absorbed into the system, an individual’s BAC may continue to rise for some time after he is stopped and arrested.

Commonly, it is an hour or more after the stop when the blood, breath, or urine test is given to the suspect. Assume that the result is .10%. If the suspect has continued to absorb alcohol since he was stopped, his BAC at the time he was driving may have been only .07%. In other words, the test shows a blood-alcohol concentration above the legal limit–BUT his actual BAC AT THE TIME OF DRIVING which is what must be proved was BELOW the legal limit.

Q: What is “mouth alcohol” or “residual mouth alcohol”?

A: “Mouth alcohol” refers to the existence of any alcohol in the mouth or esophagus. If this is present during a breath test, then the results will be falsely high. This is because the breath machine assumes that the breath from the lungs; for complex physiological reasons, its internal computer multiplies the amount of alcohol by 2100. This is known as a “portion ratio.” Thus, even a tiny amount of alcohol breathed directly into the machine from the mouth or throat rather than the lungs can have a significant impact.

Mouth alcohol can be caused in many ways. Belching, burping, hiccupping, or vomiting within 20 minutes before taking the test can bring vapor from the alcoholic beverages still in the stomach up into the mouth and throat. Taking a breath freshener can send a machine’s reading way up (such products as Bianca and Listerine have alcohol in them); cough syrups and other products also contain alcohol. Dental bridges and dental caps can trap alcohol. Blood from the mouth from an injury is yet another source of inaccurate breath test results: breathed into the mouthpiece, any alcohol in the blood will be multiplied 2100 times. A chronic “reflux” condition from gastric distress or hiatal hernia can cause elevated BAC readings.

Q: What defenses are there in an OWI case?

A: Potential defenses in any given drunk driving case are almost limitless due to the complexities of the offense. Roughly speaking, however, the majority can be broken down into the following areas:

Driving. Intoxication is not enough: the prosecution must also prove that the defendant was driving. This may be difficult if, as in the case of some accidents, there are no witnesses to his being the driver of the vehicle.

Probable cause. Evidence will be suppressed if the officer did not have legal cause to (a) stop, (b) detain, and (c) arrest. Sobriety roadblocks present particularly complex issues.

Miranda. Incriminating statements may be suppressed if warnings were not given at the appropriate time.

Implied consent warnings. If the officer did not properly advise you of the consequences of refusing to take a chemical test, or gave it incorrectly, in some states (including Wisconsin) this may invalidate a DMV license suspension based upon a refusal to provide a breath/blood sample.

“Under the influence”. The officer’s observations and opinions as to intoxication can be questioned–the circumstances under which the field sobriety tests were given, for example, or the subjective (and predisposed) nature of what the officer considers as “failing”. Also, witnesses can offer their opinion that you appeared to be sober.

Blood-alcohol concentration. There exists a wide range of potential problems with blood, breath, or urine testing. For example, a non-specific analysis: most breath machines will register many chemical compounds found on the human breath as alcohol. Breath machines assume a 2100-to-1 ratio in converting alcohol in the breath into alcohol in the blood; in fact, this ratio varies widely from person to person (and with a person from one moment to another). Radio frequency interference can result in inaccurate readings. These and other defects in analysis can be brought out in cross-examination of the state’s expert witnesses and/or the defense can hire its own forensic chemist.

Testing during the absorptive phase. The blood, breath, or urine tests can be unreliable if done while you are still actively absorbing alcohol (it takes 30 minutes to three hours to complete absorption; this can be delayed if food is present in the stomach). Thus, drinking “one for the road” can cause inaccurate test results.

Retrograde extrapolation. This refers to the requirement that the BAC be “related back” in time from the test to the actual driving (see question #17). Again, a number of complex physiological problems are involved here.

Regulation of blood-alcohol testing. The prosecution must prove that the blood, breath, or urine test complied with state requirements as for calibration, maintenance, etc.

License suspension hearings. A number of issues can be raised in the context of an administrative hearing before the state’s department of motor vehicles.