The Firm
DWI FAQs
- What do police officers look for when searching for drunk drivers on the highways?
The following is a list of observations which police officers look for which indicate to them that the person observed is driving while intoxicated.
- Weaving within the lane
- Weaving across lane lines
- Straddling a lane line
- Driving on the shoulder
- Driving on the center line or lane marker line (lane divider or white fog line)
- Driving in opposing lanes
- Driving wrong way on one way street
- Drifting back and forth within the lane
- Swerving
- Almost striking object or vehicle
- Improper or unsafe lane change
- Turning with a wide radius
- Turning abruptly or illegally
- Varying speed – unnecessary acceleration or deceleration
- Driving 10 mph or more under the speed limit for no apparent reason
- Accelerating or decelerating rapidly
- Braking erratically (e.g., constantly touching brakes for no apparent reason)
- Stopping to far or too short from intersection or another vehicle
- Stopping in lane for no apparent reason
- Failure to signal or signal inconsistent with action
- Delay in deactivating turn signal until lane change or turn initiated
- Slow response to traffic signals
- Slow or failure to respond to officer’s signals
- Following too closely
- Slow response to traffic signals (e.g., sitting at intersection after light turns green)
- Driving with headlights off
- Following too closely (tailgating)
- Inappropriate or unusual behavior (throwing objects, arguing, etc.)
- Driving without headlights at night
- If I’m stopped by a police officer and he asks me if I’ve been drinking, what should I say?
You are not required to answer potentially incriminating questions. A polite “I would like to speak with an attorney before I answer any questions” is a good reply. On the other hand, admitting 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.
- What is the officer looking for when first contacting the driver at the window?
- Slurred, mumbled, incoherent, and/or confused speech
- Odor of alcoholic beverage coming from vehicle and/or breath
- Attempts to mask the odor of alcoholic beverages with chewing gum, mints, cigarette smoke, etc.
- Red, watery, glassy and/or bloodshot eyes
- Intentionally avoiding eye contact with officer
- Staring past the officer
- Fumbling with wallet trying to retrieve license
- Passing over driver’s license in wallet
- Dropping license or forgetting to produce license after being asked.
- Handing the officer something other than the driver’s license, such as a credit card
- Difficulty comprehending officer’s questions and/or following instructions
- Soiled, rumpled, disorderly clothing
- Combative, argumentative, jovial or other “inappropriate” attitude
- Disorientation as to time and place
- What is the officer looking for immediately after asking the driver to exit his or her vehicle?
- Trouble placing vehicle in park
- Forgetting to place vehicle in park
- Delay in exiting vehicle
- Forgetting to unbuckle seat belt before attempting to exit
- Trouble locating the door handle or door lock switch
- Forgetting to unlock door before attempting to exit
- Using the door for balance upon exiting
- Leaving driver’s door open after exiting
- Staggering upon when exiting vehicle
- Swaying/instability on feet
- Leaning on side of car for support
- Stumbling, staggering, and swaying while walking from vehicle
- Do I have a right to an attorney when I’m stopped by an officer and asked to take a field sobriety test?
No. However, you are not required by Missouri law to submit to field sobriety exercises. A polite “I would like to consult with an attorney before agreeing to take any field test” is a good answer.
- Why did the officer make me follow a penlight (or finger or pencil) with my eyes to the left and right?
This is the “horizontal gaze nystagmus” test. The officer is checking for the smoothness of the eye’s tracking the penlight (or finger or pencil), distinct jerking when the eye is as far to the side as it can go, and the angle at which the eyeballs begin to jerk.
- Should I agree to take a chemical test? What happens if I don’t?
There are two consequences of refusing to submit to a blood, breath or urine test in Missouri:
- Your driver’s license will be revoked for one year. This may be true even if you are found not guilty of the DWI charge. However, in order to revoke your license for a year, the Department of Revenue must prove by a preponderance of the evidence that there were reasonable grounds to believe you were intoxicated (i.e. probable cause) and that you actually refused to take the test (or did not cooperate). These are complex issues, but a good DWI attorney knows how to address them and give you an opportunity to avoid losing your license.
- The fact of refusal can be introduced into evidence 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. You should request the opportunity to consult with a lawyer before making this decision. In Missouri, you must be allowed 20 minutes to call an attorney. Request it. Use it. You don’t get the time unless you specifically ask.
- Do I have a choice of chemical tests?
No, you do not.
- The officer never gave me a “Miranda” Warning… can I get my case dismissed?
No. The officer is supposed to give a 5th Amendment warning after he arrests you, and before any questioning. Often, however, the officer does not. The only consequence is that the prosecution cannot use any of your answers to questions asked by the police after the arrest.
Of more consequence in most cases is the failure to advise you of the state’s “Implied Consent” law – that is, your legal obligation to take a chemical test and the results if you refuse. This can affect the suspension of your license and the admissibility of your refusal at trial.
- Can I represent myself? What can a lawyer do for me?
You can represent yourself — although it is not a good idea. “Drunk driving” is a very complex field 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 technical field – no more than a family doctor could help with brain surgery. A qualified attorney, however, can review the case for defects, suppress unlawfully obtained or inadmissible 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, etc.
- How can I find a qualified drunk driving lawyer?
The best way to find a good DUI/DWI lawyer is by reputation. There are a few attorneys who have national reputations; they, of course, are expensive. Thus, the best approach is to ask other attorneys in the jurisdiction: Who is the best in the area? If you do not know any attorneys, go to the local courthouse and ask bailiffs, clerks and public defenders: Who would THEY go to if arrested for drunk driving?
Contrary to popular belief, it is not a wise idea to obtain a referral from the local Bar Association or referral service. There are rarely any qualifications required for an attorney to be on a referral list; he usually only has to ask to be placed on it. When you call, you are simply given the next name on that list.
An excellent indication of the quality and experience of a lawyer in handling DWI cases includes such things as membership in the National College for DUI Defense, being a frequent lecturer on DWI law within the State, and recognition from other groups who acknowledge the attorney’s accomplishments.
When you meet with the attorney, make sure of three things:
- He has extensive experience in DUI/DWI litigation;
- He has a reputation for going to trial in appropriate cases, rather than just “copping out” his clients; and
- The financial terms of representation are clear.
- What will it cost to get a lawyer?
This varies, of course, by the reputation and experience of the lawyer and by 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 fewer clients, spending more hours on each.
The range of fees is huge. A general practitioner in a small community may charge only $500 for a first offense; a DUI specialist with a national reputation may charge up to $15,000 or more for a third offense, depending on the facts. In addition, the fee may vary by such other factors as:
- Is the offense a misdemeanor or is it a felony?
- 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 fee, or he may ask for a 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.
Whatever the fee quoted, you can ask for a written agreement. And make sure you understand all the terms.
- What is a “rising BAC defense”?
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 fully absorbed into the system, an individual’s BAC may continue to rise for some time after he or she is stopped and arrested.
Commonly, it is up to an hour or more after the stop when the blood, breath or urine test is given to the suspect. Assume that the result is .11%. If the suspect has continued to absorb alcohol since the traffic stop, his or her BAC at the time of driving may have been only .07%. In other words, the test result shows a blood-alcohol concentration above the legal limit — but the actual BAC AT THE TIME OF DRIVING was below.
- What is “mouth alcohol?”
“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 may be falsely high. This is because the breath machine assumes that the breath is from the lungs; for complex physiological reasons, its internal computer multiplies the amount of alcohol by 2100. Thus, even a tiny amount of alcohol breathed directly into the machine from the mouth or throat rather than from the lungs can have a significant impact.
Mouth alcohol can be caused in many ways. Belching, burping, hiccuping or vomiting within 20 minutes before taking the test can bring vapor from 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 Binaca and Listerine have alcohol in them); cough syrups and other products also contain alcohol. Dental bridges and dentures can trap alcohol. Blood in 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 esophageal reflux disease (“GERDS”) or a hiatal hernia can cause elevated BAC readings.
- What defenses are there in a DWI case?
Potential defenses in a 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:
- Intoxication is not enough: the prosecution must also prove that the defendant was driving. This may be difficult if, as in the case of accidents, there are no witnesses to the defendant being the driver of the vehicle.
- Probable cause. Evidence in a criminal case 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.
- Incriminating statements may be suppressed if warnings were not given at the appropriate time.
- Implied consent warnings. If the officer did not advise you of the consequences of refusing to take a chemical test, or gave it incorrectly, this may affect the admissibility of the refusal, or the actual test results.
- “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 testify that you appeared to be sober.
- Blood-alcohol concentration. There exists a wide range of potential problems with blood, breath or urine testing. “Non-specific” analysis, for example: most breath machines will register many chemical compounds found on the human breath as alcohol. And 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. Radio frequency interference can result in inaccurate readings. These and other defects in analysis can be brought out during cross-examination of the state’s expert witness, and/or the defense can hire its own breath test expert.
- Testing during the absorptive phase. The blood, breath or urine test will 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 driving. 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 to 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 Revenue.