DUI/DWI Terms

The rate at which alcohol enters the blood stream. This can be affected by the amount of food consumed, biological factors, and type of beverage.

Confiscation of driver's license immediately upon a refusal of a breath/blood test, or arrest. More than 40 states have some form of Administrative License Revocation, which may be automatic or at the discretion of the arresting officer.

At this time, the court will provide counsel (and defendant, if present) with a formal complaint, a police report, blood test results (if available), pre-trial or trial dates will be established, bail status reviewed (if applicable) and unless there is a motion to dismiss, a plea will be entered.

Under certain circumstances, such as when a person is sitting behind the wheel of a vehicle that is not moving, courts have upheld convictions.

Blood Alcohol Concentration. Often mistaken as Blood Alcohol Content.

The amount of alcohol in the bloodstream measured as a percentage. BAC can be measured by either breath, blood or urine testing and is often used by law enforcement to determine whether a motorist is drunk. All 50 states have a limit of .08 grams of alcohol per 100 ml, and many states have lower limits for commercial vehicle drivers or those under 21.

Generally regarded as the most accurate method of determining BAC levels and typically employing either gas chromatography, dichromate or enzymatic reaction.

There are numerous issues confronting defense counsel and prosecutors in this arena - including (but not limited to), the type of equipment used, procedures employed by law enforcement and lab personnel, the physical condition of the test subject, chain of custody and numerous scientific criteria. Breathalyzer 900, 900A, 1000 and 2000 - one of the most common breath test machines which utilize a wet chemical method of breath analysis rather than infrared spectrophotometry. Although this machine has long been discontinued, it is still in use in many jurisdictions, particularly rural areas. One of the chief problems with the Breathalyzer is that it is nonspecific to alcohol. In other words, any volatile organic substance, such as turpentine, may register as blood alcohol. In addition, all Breathalyzer models but the 900 are susceptible to radio frequency interference.

Typically, a drunk driving conviction constitutes negligence per se and as such, civil liability automatically applies for any damages caused by such unlawful conduct. In some instances, punitive damages may also be applied if it can be proved the driver had wanton and reckless disregard for human life.

BAC standards are lower, plus additional criminal penalties or license suspensions often apply. The Commercial Motor Vehicle Safety Act mandates a six-month license suspension, a one-year commercial vehicle suspension and a lifetime prohibition upon a second conviction. Employers must also be notified of any convictions or suspensions.

Driving under the influence. Generally, refers to alcohol intoxication, but DUI can also apply to the influence of legal or illegal drugs, or toxic vapors.

Driving while intoxicated or Driving While Impaired. Generally synonymous with DUI, but some states have a lesser DWI charge for certain BAC.

Drug and alcohol education programs designed to teach drivers the dangers of drinking and driving and reduce the chance of repeat offenses. Also called Risk Reduction.

Many states have rules governing the time limitations for chemical testing and set forth consequences for noncompliance. The longer the period that passes between the time the suspect is observed driving and the time he is given an evidentiary chemical test, the less reliable the projected estimate of his blood-alcohol concentration when driving.

Prohibits a second prosecution on the same charges after either acquittal or conviction and prevents multiple punishments for the same offense. Criminal prosecution for driving under the influence of alcohol following an administrative license suspension (or vice versa) traditionally does not constitute double jeopardy.

Prohibits the dissemination of personal information obtained by the state in connection with a motor vehicle record except under specified circumstances. This Act has been duplicated in the legislation of most states.

Some state statutes have adopted "driving while impaired" as a lesser degree of the offense of driving under the influence of alcohol, affording leeway to law enforcement agencies in making arrests in those cases where there may be some doubt about convicting the defendant of the most serious charge.

Similar to the necessity defense but requires, in addition to other elements, that the defendant had a reasonable and good faith belief that he had to commit the offense in order to avoid serious injury or death.

Sentence enhancements refer to statutes that provide for additional penalties, usually when a drunk driving offense is combined with reckless behavior; such as, when BAC is over a certain percentage, refusal to take a chemical test, speeding, causing an accident/injury or when minor children are passengers, as examples.

Under certain circumstances, the misdemeanor offense of driving under the influence of alcohol will be treated as a felony (e.g., when drunk driving results in substantial bodily harm or death).

A test of physical or mental coordination used to provide an initial assessment of sobriety. Field Sobriety tests are usually performed roadside shortly after an officer stops a driver. Field sobriety tests include walking in a straight line heel-to-toe, tilting the head back with eyes closed and touching the tip of the nose with the index finger (Rhomberg test), standing on one foot, reciting the alphabet, finger exercises, and horizontal gaze nystagmus (jerking of eyes when following a stimulus to the side).

Neither the intent to become intoxicated nor the intent to operate a motor vehicle need be established to convict an individual of drunk driving.

Prior juvenile convictions may be used to enhance punishment for a subsequent DUI conviction. Depending upon the laws of the jurisdiction, an alleged juvenile conviction may not legally constitute a prior conviction.

Or "vehicular homicide" is a serious felony that occurs when there is a death that is caused by driving under the influence of alcohol. Depending on the circumstances, some states may treat manslaughter as a misdemeanor.

Usually occurs when the offense, or at least the driving element, was not committed in the officer's presence (e.g., the officer arrives at the scene of an accident and arrests the driver). Counsel may argue that this arrest was without lawful authority and seek suppression of evidence obtained thereafter.

More severe punishments are commonly imposed for repeat offenders which may result in elevation of the offense to a felony or state prison status where the requisite number of prior convictions exist.

A single act that is concurrently prosecuted and punished as two or more separate criminal offenses (e.g., driving while intoxicated, speeding, reckless driving, etc.).

A scoring system often used by officers conducting a field sobriety test whereby the officer subtracts points for mistakes the suspect makes but fails to add points when the suspect does something right. This approach may unfairly place the subject in a "no win" situation.

Most states have a statutory scheme for regulating the chemical testing of drunk driving suspects and statutory noncompliance may result in suppression of evidence.

A process during which counsel for the defendant has informal discussions with the prosecutor regarding the strengths and weaknesses of the case to arrive at a mutually acceptable disposal of the case, subject to final approval by the judge. Often a defendant will obtain a less severe punishment for pleading guilty early on as opposed to that which would result from a finding of guilty at trial.

Used by police officers in the field to obtain initial indications of blood-alcohol levels. While some of these devices simply detect the presence of alcohol in the subject, others indicate specific levels of blood-alcohol concentration. The two types of PBT's used today are fuel cell devices and Taguchi gas sensor devices.

All 50 states have laws establishing statutory presumptions from the results of chemical tests given to drunk driving suspects (.08 or .10 percent). In other words, an individual is presumed intoxicated at .10 percent or more of alcohol in the blood by weight.

Evidence of a subject's refusal to submit to a chemical test can affect the trial because of the jury's tendency to view the refusal as an inference of consciousness of guilt. Wherever possible, counsel should move to suppress evidence of the refusal.

Only five states do not permit jury trials for drunk driving cases which involve maximum sentences of six months incarceration: Nevada, Louisiana, Mississippi, New Jersey and New Mexico.

A defense to DUI charges based upon the claim that a driver was not under the influence when he or she was driving, but that their BAC rose to that level after arrest because alcohol was still being absorbed.

In most drunk driving cases, the provisions of a sentence will involve at least some or all of the following: fine; jail time; suspension; restriction or revocation of license; attendance at drunk driving classes; and probation (supervised or informal).

Related to but distinct from the issue of probable cause to arrest. An unlawful arrest may occur, for example, when the officer may be out of his jurisdiction or the offense may not have been committed in his presence. However, some state statutes may permit the officer, under certain circumstances, to make an arrest where the offense was committed outside of his presence.

A basic problem inherent in urinalysis is the underlying presumption that the concentration of alcohol in the urine at the time of secretion is 1.33 times greater that the concentration in the blood. However, any given individual's ratio can vary from as little as 0.8:1 to as much as 2.0:1 or even more used mouthpieces may contain particles or vapors from the previous user, thus falsely elevating the reading. The failure to replace the mouthpiece should be argued as grounds for suppression of the results.

A drunk driving suspect cannot, after being placed in custody and without a Miranda advisement and waiver, be asked any questions to test his mental state. Such a test may be self-incriminating because it forces the suspect to disclose information that would reveal whether his mental processes were confused.

Commonly used to describe laws that make it illegal to operate a vehicle with any detectable amount of alcohol. Zero Tolerance typically applies to minors that have not reached the age for legally consuming alcohol. Although in Georgia the limit for persons under 21 is actually 0.02 grams.)