DUI Law Primer – Atlanta DUI Lawyer & DUI Book Author Explains America’s Drunk Driving Laws
By: William C. Head, Georgia DUI Attorney – Copyright 2015
What is a DUI?
To not know what is a “DUI” in America would mean that you do not speak the language, don’t watch TV, read newspapers or listen to the news on the radio, or that you are too young to appreciate the significance of this powerful acronym. DUI is the most common acronym for the very common criminal offense of drunk driving (or drugged driving). Each state determines the wording of its state DUI laws on intoxicated driving, and that wording usually leads to acceptance of the closest acronym.
Translating the letters D.U.I. into words, state drunken driving laws utilize “driving under the influence” more often than all other acronyms combined. In a nutshell, the criminal offense (misdemeanor dui or felony dui) of any impairing substance is how most state drunk driving laws and drugged driving statutes (DUI laws) are structured. To get an exact DUI definition, look to your state DUI laws. Here is a list of drunken driving acronyms of the 50 states and the District of Columbia that may facilitate that Internet search:
District of Columbia DWI
Hawaii DUI or Hawaii OVUII
Indiana DUI or Indiana OWI
Maryland DWI or Maryland DUI
Michigan OWI or Michigan UBAL
New Hampshire DWI
New Jersey DWI
New Mexico DWI
New York DWI
New York DWAI
North Carolina DWI
North Dakota DWI
Ohio OVI or Ohio OMVI
Oklahoma DUI (used to be called DWI)
Rhode Island OUI
South Carolina DUI
South Dakota OWI
Washington DUI (used to be called DWI)
West Virginia DWI
DUI vs DWI
Because Americans tend to regularly move from state to state far more than they did 50 years ago, DUI arrestees often come from another state where the acronym for driving impaired is different than DUI. Many new clients of the author ask, “What is a DUI? and “What is the difference between DUI and DWI”? In some states (like TX, NY, NC, NM and MD), you may see drunk driving referred to as Driving While Intoxicated (DWI). D.W.I. can also stand for Driving While Impaired (by drugs, alcohol or other impairing substances, as identified above). Numerous other acronyms (as laid out above) are also used in various states, with some states interchanging acronyms in their reported opinions.
DUI by impaired driving vs. DUI per se (or DWI per se)
The act of “drinking and driving” is no crime in ANY state. But, a drinking driver can become a DUI driver without having a clue or a sign that this is happening, during his or her consumption of alcoholic beverages. Many potential jurors that we see in current times have bought into a concept of “zero tolerance.” The DUI attorney’s job is to ferret out the hidden agenda that these people have when they get called for jury duty for a drunk driving prosecution.
All states have criminal statutes proscribing impaired driving (drinking and driving to excess), even if police never obtain a BAC level “number” of a specific quantity of alcohol in the person’s system. So, not agreeing to the blood test or breath test will not necessarily mean that you walk away from a drunken driving charge. Your bad driving actions (e.g., causing an accident, weaving across all lanes of traffic, or following too closely), your symptoms or manifestations of being too drunk to drive (e.g., slurred speech, unsteadiness on your feet, incoherent acts or words or both can lead to a DUI arrest. You can lose a DUI trial on the testimony of an officer alone describing drunken behavior, and no breath, blood or urine test will ever be mentioned. Usually, the culprit is failure to exercise your Constitutional Rights, and self-incrimination.
If you voluntarily and stupidly try to do field sobriety tests, a case can easily be made against a person who drove drunk. This type of DUI law is needed to be able to prosecute those who refuse to take a breathalyzer, or a blood test or a urine test at the request of a law enforcement officer who has arrested him or her. Also, a skilled DUI lawyer may be able to have a BAC test number excluded from the Prosecution’s case at trial, leaving only impaired driving, and not DUI per se.
What is DUI-alcohol per se? Being “over the limit” as an alternative type of DUI
Starting over 50 years ago, states sought to enact a DUI-alcohol alternative to the long-standing “drunken driving laws” that necessitated PROVING driving impairment in each case. Modern breath testing had evolved from the 1930s when Harger and Forrester invented the first two rudimentary breath testing devices. By 1955, Robert Borkenstein had invented and sold the Breathalyzer device, which became the most widely used breath test device in DUI-alcohol cases for over two decades. Borkenstein, an ex-cop from Indiana, later patented his device and obtained a trademark on the word “Breathalyzer.” However, like the word Kleenex, that word [Breathalyzer] is commonly used interchangeably with the phrase “breath test” today.
So, with more competing manufacturers of breath testing devices, state legislators could see that obtaining blood alcohol concentration (BAC) tests could be quicker and cheaper than seeking blood tests from suspected DUI drivers. Thus, the DUI per se (pronounced “DUI per say”) laws got passed in virtually every state.
The concept of these new per se alcohol drunken driving laws was to IGNORE the issue of impairment needing to be established, and to pass state DUI laws that criminalized driving under the influence when the driver took a state-administered test of breath, blood or urine and was shown to be “over the legal limit.” Mr. Head and others have written extensively on how to eliminate a breath test or blood test from a DUI case, but this takes the skills and training of top DUI lawyers. Go to this link to read more about Mr. Head’s first DUI book, 101 Ways to Avoid a Drunk Driving Conviction, from 1991: https://plus.google.com/112563421352241951097/posts/imXm4njxcgB.
Because DUI checkpoints are allowed in 38 states and the District of Columbia, a DUI alcohol per se law is extremely important, especially when no field sobriety test is voluntarily taken, and when no admission to drinking and driving is obtained. In addition to police roadblock stops for license checks or as sobriety checkpoints, many accident cases involve an injured driver, and no standardized field sobriety tests can be administered, even if the driver at a police checkpoint wanted to consent.
How the DUI-alcohol per se legal limit has been lowered
Back in the early days, the legal limit was 0.15 or more. That BAC level was recommended by the American Medical Association in 1946 to identify the BAC where most people became visibly impaired as being too drunk to drive. Soon, all states but Georgia dropped its blood alcohol level to 0.10 or more (Georgia once was set at 0.12 or more before lowering its BAC to 0.10 in 1991 and then to 0.08 in 2001). But, by September of 2005, every state dropped that per se DUI “number” to 0.08 grams percent or more, for adult drivers age 21 or over, who were not in a commercial motor vehicle. The same organization, the American Medical Association, in 1986 began calling on Congress to make the legal limit 0.05 grams percent, which is somewhat shocking in light of the fact that human beings did not change much in the intervening 40 years. Politics has strange bedfellows.
CDL drivers in commercial vehicles are held to a lower DUI alcohol per se of 0.04
Along the way, commercial truck drivers operating a big rig were mandated under federal interstate driving laws to have no alcohol on the driver’s breath at all, but that (if tested on a breathalyzer or blood tests) a lower standard of 0.04 grams percent would be applied to CDL drivers who were in their 18 wheelers. A CDL “endorsement” is an overlay of a regular driver’s license. So, this same driver’s license will be used by the commercial trucker when he or she is not in his or her big rig truck or school bus. Additionally, federal law mandates that any passenger van that accommodates 16 or more passengers must be driven by a CDL-licensed driver.
Underage drivers are held to zero tolerance (which does not always mean ZERO)
Furthermore, legislators all pushed for underage drivers to have a zero tolerance once the federal government sought to force states to go to a zero tolerance or lose federal highway funding. Many states now utilize a 0.00 BAC level as being their “zero tolerance” law, but others use 0.01 or 0.02 as the standard, because breath testing devices are not nearly as precise as blood testing instruments, and so state lawmakers permitted some machine variance to be built in for protection of the drinking drivers under age 21. The “official” reason given at government websites and published reports was that “some states use a .02 BAC standard to account for the alcohol that is in some permitted forms of cough syrup.” But just because you used Nyquil containing alcohol will not give ANY driver a “pass” if the BAC level is at or above the applicable per se limit.
So, across America, there are three DUI alcohol per se standards:
ADULT (age 21 and over) – 0.08
UNDERAGE – ZERO TOLERANCE – ranging from 0.00 to 0.02 in various states
COMMERCIAL Truck Driver in a Big Rig vehicle or School Bus – 0.04
Per se laws for DUI-Drugs are emerging across America
As you now know, DUI can be by ANY substance, with alcohol — far and away — being the most common. In the last two to three decades, the drug manufacturers have flooded the United States with every type and kind of drug. Many of these have a psycho-active effect on the brain, and this can definitely lead to driving impairment. Most medications, standing alone, do not have this effect on the brain, like cholesterol and blood pressure medications, and digestive drugs. But, when alcohol is added to the ingested substances, many unexpected, synergistic (additive) impairing effects can occur.
Following the pattern of DUI-alcohol “per se laws,” a trend has started for passing DUI-drugs per se laws for some drugs. No consistency exists on this type of law similar to DUI alcohol, but the number of states with such laws is growing to about half of the 50 states. As medical marijuana laws have been passed, states with such weed laws have had to modify their laws to accommodate what is and what is not a “legal” level of marijuana or THC in the driver’s system, and what would be DUI per se marijuana.
Because these laws are in flux, and some state legislators meet every month of the year, you should keep up with changes in your state’s drugged driving laws. For now, the following states have SOME form of DUI-drugs per se law on their books and/or a medical marijuana cut-off level before a person will be deemed to have “too much” in his or her system to safely drive:
DUI alcohol or DUI drugs – Illegal drugs, prescription drugs, or non-prescribed drugs
The impairing substance or substances leading to an intoxicated driving arrest can be paint fumes, glue fumes, aerosols, over-the-counter pills or liquids (e.g., Benadryl or Nyquil). Plus, DWI-DUI may include any prescription medications authorized by a doctor that cause mental impairment sufficient to impair a driver’s abilities to operate a vehicle safely. All states have laws that accommodate driving after taking prescribed medications selected for a medical condition by a physician SO LONG AS the prescribed drugs are taken within the dosage guidelines on the vial.
Plus, if a person has obtained prescribed drugs from one doctor and (without informing doctor #1 about the other doctor’s prescribed medications) then gets one or more other psychoactive drugs to be prescribed to him or her from a different physician, this can lead to a DUI-drugs impaired driving case. Plus, some states have been smart enough to make it a crime to procure drugs by misleading doctors as to what medications you are already taking to get more drugs to either abuse or sell on the street. These offenses are almost always a felony offense.
Although it should be apparent without saying, taking ANY controlled substance (prescribed drug) for which you do not have a prescription is illegal. This can lead to felony drug possession charges. Plus, if blood or urine or both are collected from you, and these appear in your bloodstream, a DUI could be just one crime that you are trying to keep off your criminal record.
The risk of having prescribed drugs in your possession, but not in a marked vial
Another important legal tip should be added here. If you have prescribed (Rx) medications, do NOT take a few pills out and place them in your pocket, or in your SUV console, or in the zippered side pocket of your purse. Many states’ controlled substances laws make this a crime, to not have these drugs in a marked container from your pharmacy. My practical advice is to save the last empty Rx bottle of that specific drug, and put one or two in that container, inside your storage place. Then, you are protected. This is also a good plan when taking a trip out of town. Don’t take the whole prescription drug container or containers, beyond the number of pills you need to carry to stay medicated on your trip. To answer your next question, yes, you do need to segregate prescribed meds into separate bottles and not commingle them.
Impaired driving by any substance or chemical or plant material
It is not at all uncommon for a driver to have what is called a “poly-drug” impaired driving offense (impairment being caused by multiple impairing substances) or a “DUI-drugs” or “DUI alcohol and drugs” offense. Anytime various central nervous system depressants have been taken (ingested, injected, inhaled, swallowed, or snorted) and the combined substances slow down and obtund the driver’s reflexes and motor skills, this type of drunken driving criminal charge is maintainable by a prosecutor when the “substance” causing impairment is an illegal substance like PCP, a prescribed substance like hydrocodone, plant material like marijuana or psilocybin mushrooms, or an aerosol with a gaseous propellant that can cause a person to become impaired or even pass out while driving. Regardless of HOW the driver got impaired, a DUI arrest will be forthcoming after the officer conducts his or her “investigation” into the person’s driving impairment.
The DUI arrest comes AFTER the implied consent (or informed consent) warning
A driver’s DUI arrest is almost always followed by the arresting officer giving the detained DUI suspect an implied consent “warning” or advisement, (in written form or verbally given to the handcuffed driver or both, as set by your state’s DUI laws) wherein the driver is told that state DUI law requires the person to submit to the requested alcohol test or drug test, for purposes of determining if the person has an impairing level of any substance (including alcohol) in his or her blood system. A few states call this “informed consent,” but a substantial majority of states call their state statutes authorizing this post-DUI arrest process “implied consent.” In a nutshell, non-compliance can mean being dry-docked from driving for a refusal. Repeat offenders may find that having a per se alcohol number after being previously suspended for a prior DUI triggers loss of all driving privileges, potentially requiring an ignition interlock device to be installed, or issuance of a route-restricted “work” license.
Implied consent penalties vary – Loss of License, Fines and/or Jail Time
This implied consent legal admonishment also lays out the penalties and loss of entitlements for saying “NO” to an implied consent test or simply not verbally giving your consent for DUI testing in most states, and the usual penalties include the loss of all driving privileges for some period of time (Georgia is a full year with no limited permit), a possible monetary fine and loss of license (Idaho has a monetary fine and total loss of driving privileges), or a state’s implied consent law may even mandate JAIL time added to the loss of license or privilege to drive (Hawaii calls for 30 days in jail for refusing the drunk driving test even if the driver is acquitted of the impaired driving charge). In other states (e.g., Nebraska and Alaska), a refusal can trigger being charged with an ADDITIONAL crime of refusal, plus a total loss of the ability to drive for a lengthy period of time.
Taking the implied consent test is supposed to be the driver’s choice
A recent Wisconsin case explained implied consent this way: “The implied consent law is explicitly designed to allow the driver, and not the police officer, to make the choice as to whether the driver will give or decline to give actual consent to a blood draw when put to the choice between consent or automatic sanctions for refusal.” (The use of the word automatic in the Wisconsin opinion is not necessarily the law in all states, inasmuch as “refusals” can be contested and won at administrative hearings prior to the DUI criminal case in many states, at an administrative license suspension or administrative license revocation hearing, if timely requested). The quoted text was taken from the Wisconsin OWI cases of State v. Padley, 354 Wis.2d 545, 564, 849 N.W.2d 867, 876 (Wis. App. 2014).
In some states, a person who first refuses to blow into a breathalyzer under the requirements of the implied consent law but later wants to change his or her mind cannot change that decision and be allowed to blow into the forensic device (e.g., Iowa). In other states, so long as the arresting officer is still present with the DUI suspect and a legally relevant test (taken within 3 hours of driving ending, under state DUI laws) can be obtained, then the driver can change his or her mind and submit to an implied consent test (e.g., Georgia).
Likewise, in most states, a person who first agrees to be tested under a state implied consent law can change his or her mind and withdraw that consent. (e.g., South Carolina, Georgia, and many others). So, the availability of the right to change your actual consent or refusal to consent to implied consent testing in a driving under the influence case depends upon the state DUI-DWAI-OUI-OVI-OWI-OMVI-DWI-DUII-DWUI law where the person is arrested.
If I don’t blow or allow blood to be drawn, is it over? Forcible Blood Draws
Starting a couple of decades ago, several states began telling their officers to obtain forcible blood draws (or even urine catheterization) from DUI suspects who had refused to be tested. The methods employed to get this done varied from state to state, but these three methods were the ones most commonly seen:
1. Just DO It – Some states, like Missouri, took the position that this was within the inherent power of a police officer to demand and authorize hospital personnel to perform. These misguided states cited South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) and earlier U.S. Supreme Court cases about drunk driving laws for the proposition that DUI was creating carnage on our highways. This practice (at least for simple DUI cases not involving an accident or a felony of any type) has now been abandoned across America as being in violation of the Fourth Amendment of the United States Constitution, since Missouri v. McNeely was decided in 2013. Missouri v. McNeely, ––– U.S. ––––,133 S.Ct. 1552 185 L.Ed.2d 696 (2013).
2. By enacting laws – Other states, like Arizona, passed unreasonable, Draconian laws that seem to authorize police officers to draw blood forcibly, on the hood of a patrol car, with minimal medical or phlebotomy training. Plus, AZ DUI law states that the officer cannot be sued for injuring you, maiming you or killing you while trying to collect blood.
3. By Warrant – Some states (like Georgia) – at the behest of state prosecutors wanting more evidence – passed new laws that seem to authorize an officer who has been thwarted by a reluctant participant for implied consent to seek a judicial warrant from a judge, such as a magistrate judge. These are now possible via electronic means and can be printed off by an officer with the proper impact or thermal printer in his or her patrol car. The whole process can take minutes, instead of hours, as before. So, in one sentence of your state implied consent law, a right to refuse is stated, followed by another sentence that says an officer can apply for and receive a warrant in a garden-variety DUI case, with no accident or exigent circumstances.
Is a DUI a felony? One of our firm’s most common questions about DUI laws
In a nutshell, if your first DUI-DWI arrest occurs, and you have not been declared an habitual offender for bad prior driving acts like attempting to elude, hit and run, or other serious driving offenses (even when no DUI offenses have occurred) and no underage children are in your car, and no accident has occurred that caused a death or bodily injury of any type, you are almost always assured of this being a misdemeanor drunk driving offense.
On the flip side of this coin, if you have had ANY prior DUI-DWI arrests or convictions, fully disclose this to your DUI lawyer. Don’t risk walking into court for your arraignment and being blindsided by a Prosecutor holding documents showing prior convictions in another state or states, or possibly under a different or prior name.
Mr. Head has written about this topic extensively and has a great overview DUI video, which can be found in the links below. Also, learn how to get a PDF copy of his FREE book at this link: http://www.theduibook.com.
For Mr. Head’s Georgia DUI penalties chart, go to this site: http://www.dui.tv/galaws.pdf
https://youtu.be/g-KZrRhqhLs Mr. Head discusses this topic on YouTube.
Interested in seeing what occurs to your life IF you get convicted of DUI? Go to this link: http://www.dui.tv/97consequencesofaduiconviction.pdf
Call us and learn what is a DUI with a top-reviewed DUI attorney who can be in court for you Monday morning. 844-832-6384 day or night