DUI Lawyers,,DUI Laws,Penalties

Archive for June, 2006

Driving under the influence is a rapidly growing problem in the United States. Many states have enacted tougher DUI laws to prevent the problem from growing further and to help people understand the serious consequences of driving under the influence. A major problem for many people is that they don’t know the laws or don’t understand how serious DUI is if they are convicted.

A Review of DUI – DUI is a criminal offense in all 50 states. It’s often a misdemeanor offense, but can be a felony under certain conditions. Several prior convictions can mean a felony charge in most states and some states have terms that outline aggravating factors that can result in a misdemeanor charge being elevated to a felony charge. Some of the more prevalent aggravating factors are having an extremely high level of blood alcohol concentration, driving under the influence with a child in the vehicle, or causing property damage or serious bodily injuries while driving under the influence.

Many states have two ways in which a DUI case can be prosecuted. One of these is based on the physical impairment of the arrested individual. In this instance, the prosecutor focuses on trying to prove that you were too impaired to safely operate a vehicle at the time of the arrest. Testimony may come from law enforcement officials and focus on your appearance, performance of sobriety tests, driving behavior, and other factors that may show you should n’t have been driving. The second way is often known as the per se DUI theory. This is where the prosecutor will base his case on the results of chemical testing done at the time of your arrest. If the test results show that your BAC exceeded the state’s legal BAC limit, then the prosecutor can show that your were guilty of DUI even if you didn’t appear to be impaired.

Reviewing Administrative Penalties – In most states, you’ll lose your driving privileges if you are arrested for driving under the influence, even if you are eventually found not guilty of the charge. That doesn’t seem fair, does it?

Some states have an appeals process where you can appeal your suspension in writing and then get a hearing to determine the status of your driving privileges. If you don’t have a qualified, experienced DUI lawyer to represent you during your appeal hearing, you may lose out on the opportunity to get a temporary license that you can use to drive until your trial date. This means you won’t be able to get to work, drive yourself to medical and dental appointments, pick up your kids from school, or do any of your normal daily activities that require driving.

Reviewing Criminal Penalties – Since DUI is a criminal offense, there’s a wide range of criminal penalties available. In most states, these penalties can include jail time, fines, court costs, alcohol and drug education, alcohol treatment, ignition interlock device installation, community service and probation. The sentencing will depend on a variety of factors, including the number of prior convictions, aggravating circumstances present in your case, and other circumstances. If you have a qualified DUI attorney, he can speak on your behalf prior to your sentencing and ask that the court be as lenient as possible. If you have accumulated several convictions, however, it is unlikely that you will be sentenced to anything other than the maximum penalties allowed by law since you have broken the law several times.

Reviewing Benefits of DUI Attorneys – You’ll gain many benefits when working with an attorney who specializes in DUI defense. These benefits include better access to expert witnesses, more specialized knowledge of DUI law, and more experience defending people charged with DUI offenses. Going it alone or working with a public defender or non-specialist lawyer can mean you may not be getting the best possible defense. Choose to work with a DUI attorney and you’ll have a much better chance of winning your case and being able to move on with your life.

Drink Driving Law In Scotland

Drink Driving In Scotland

This is a complex and serious area of law therefore we offer FREE online advice in relation to such cases. Ask us about your own case by going to our website at roadtrafficlaw.com

Post Incident Drinking Defence

Expert evidence on post incident drinking

Information required by your expert

Failing to provide a specimen

Procedures blood or urine samples at police stations

Requests for blood or urine samples at hospital

The breath testing equipment

Back calculations and how they operate

The Lord Advocates Directive

 

 

Post Incident Drinking Defence

There is a legal  presumption taken from section 15(2) Road Traffic Offenders Act 1988 that the proportion of alcohol in a drivers breath, blood or urine at the time of the alleged offence was not less than in the specimen.

This means that the defence require to establish the defence if the driver claims that he/she had been drinking after the incident but prior to giving a sample. Check section 15(3) – if the driver establishes the matters set out at section 15(3) on a balance of probabilities then the defence is made out and must be rebutted by the Crown case. This type of defence is common in practise but uncommon in success. It is often referred to as “The hip flask defence” coming from the term used in a case where the accused claimed that after a crash he had taken a few drinks from his hip flask to calm his nerves. Sheriffs tend to take the view nowadays that anyone who has been involved in a road traffic accident will expect to be tested and would be extremely unwise to consume any more alcohol in these circumstances. It is therefore VERY difficult to establish such a defence.

It is not impossible but will usually require the evidence of an independent forensic toxicologist  who can provide a detailed report that will hopefully support the accuseds’ explanation of the amount of alcohol consumed  and when.

The defence must call scientific evidence on the point unless it is obvious to a layperson that the post offence consumption of alcohol explained the excess. Never assume that it would be obvious, you would generally always be wise to seek out a report and to forward a copy of same to the Crown well in advance of the trial to have it agreed wherever possible. Reports normally cost in the region of £250+Vat to prepare however if you require your expert to come to court to give evidence this can be very expensive. It will depend upon the time taken for the witness to be called and to give evidence.

If a driver provides a specimen a long time after the driving offence and this proves to be below the limit the forensic experts acting for the Crown may provide a report indicating that at time of offence the blood alcohol was over the limit and therefore the driver may still be prosecuted. This is  not something that happens very often probably due to the evidential issues and difficulties n presenting the case in a fair manner.

 

The Expert evidence on post incident drinking

The expert will provide a report setting out his presumptions and the mathematical calculations used in coming to any conclusion.

To be successful you really need to provide the expert with as much accurate information as possible otherwise there will always be an element of guesswork about the process and this will work against you. Although the defence ONLY requires to be made out in the Balance of probabilities you will find that this is still a high standard. It is worth instructing a specialist law firm to assist with this whole process but however you proceed there will be a set amount of information that your expert requires. It can be worth calling the forensic department of your local University to see if they have an expert available and then ask them to fax you a list of they require. They sometimes have a form that you can use to provide the required information.

 

Basic Information Required



Full detail of any food consumed from six hours before the

offence.

Weight, height, build, age and sex

Known medical condition (Acid reflux, irritable bowel etc)

Medication taken regularly, or within 6 hours prior to drinking;

Type and quantity of alcohol consumed before the offence and, if possible, the times at which the units of alcohol were consumed. Brand names ok and provide the actual containers that the drink was consumed from eg Glass marked with the measure taken.

the same information concerning any alcohol that you consumed after the offence but before you gave the specimen for the test.



 

 

 

Failing to provide.

This is a complex area of law and there are a great many cases that have assisted us in the definition of what is and is not a “reasonable excuse”. It is not a reasonable excuse to state that you did not give a sample because you wanted your lawyer to be present. Nor is it a reasonable excuse to refuse to provide a specimen of breath or other sample simply because you had not been the driver.

The main successful area of reasonable excuse has tended to be cases where there is a genuine medical problem such as Asthma or real phobia of needles etc. Medical evidence of such a phobia or condition will require to be obtained and examined. Simply because you are asthmatic will not preclude you from providing a sample. The court will require full details about your condition and how it would affect your ability to provide a sample. Expert evidence may be required in relation to your psychological state as this could also have had a bearing on whether or not  you could commit this offence.

Once such a defence is raised, the onus is upon the Crown to prove beyond a reasonable doubt that it has failed and that you are therefore guilty of the offence.

Failing to provide a sample is a very interesting area of defence and we have had a great deal of success in defending such cases. We do not wish to publicise just how we have been successful as this is a competitive area of the law and we all guard our knowledge jealously. If you want the benefit of our success in this area pleas e call or provide us with some of your case details online.

Procedure for blood or urine samples

An area of some confusion as the motorist tends to believe that they have a choice about what type of sample is given and how and where it should be given. You will find that the police officer requesting the sample can decide what type of sample is to be used. Sections 7, 8 and 9 of the Road Traffic Act 1988  set out procedures which must be followed by the police when laboratory samples of blood or urine  are taken. Sometimes police officers fail to follow the strict guidelines that are laid out in the forms that they use as an aide memoir when following the procedure and then he defence have an opportunity to win their case!

The admissibility of those specimens in excess alcohol cases depends upon the procedures being followed strictly. The procedures are set out in this manner to secure a fair and just process that is beyond reproach.

As a suspected driver you are legally obliged to provide a sample where an officer has reasonable grounds to suspect that you have driven a vehicle whilst under the influence of drink or drugs. Do not refuse to give a sample because you were not driving or you were not driking- Bad idea to refuse as this is a separate offence. Let the lawyers sort out the presentation of the defence at court. It is best for you to cooperate fully with the testing process and procedures and simply note carefully what is being said to you and what is going on.

Before a sample is taken the driver needs to be told:



The reason why breath cannot be used as a sample;

That the officer will decide that the sample will be Blood or Urine and what it will be.

Tell you that if you refuse then this is a separate offence. I tend to think they should also tell you that you will most likely be disqualified from driving or holding a licence if you fail to provide.

If they want to take blood they require to ask about medical conditions or any reason to refuse such a specimen. (The police casualty surgeon is called out to take a sample of blood from you)



 

 

Section 8(2) of the Road Traffic Act, a driver may choose to replace a breath specimen by supplying a lab sample in the following circumstances



Where the specimen of breath exceeds the statutory limit; but does not exceed 50 microgrammes of alcohol in 100 millilitres of breath



 

 

The police officer then require to inform you



You are entitled to have this specimen replaced by a specimen of blood or urine; but it will be for the police officer to decide whether the replacement specimen is to be of blood or urine.



 

 

 



He has to check if the  driver has any medical reasons why a sample of blood cannot or should not be taken from him.



 

 

There are sometimes failings in this process and we find that we can successfully defend motorists in such cases where the police have failed in the procedure required of them.

The test of whether the officers failure has caused a fundamental breach of procedure that cannot be cured is usually a matter for the Sheriff however in circumstances where the police officer has failed to check if you have any medical condition that precludes you from giving such a sample we can safely say that we should win that point and save your driving licence.

Blood or urine samples when at hospital

Sometimes samples are taken from a driver when he/she is in the process of receiving treatment following a road traffic accident. Again this is an area of law where the prosecution require to be careful about the methods used to ensure fairness and admissibility of evidence.

The reporting police officer should ASK the driver if there is any reason that he/she cannot provide a sample of blood for analysis. Sometimes this whole process is just handed over to the police casualty surgeon or to a Doctor who is in attendance for another treatment reason. One has to consider if proper legal cautions have been provided and if all proper procedure followed.There is often room for error in the procedure and this area therefore requires careful consideration of a specialist road traffic lawyer.

The Breath Testing Equipment

The Intoximeter EC/IR, the Camic Datamaster or the Lion Intoxylizer  are used throughout the Uk we understand from experience that the Intoximeter EC/IR is now the most widely used piece of equipment for breath testing in Scotland.

They are all type approved and as such certain presumptions of reliability follow. If the defence wish to challenge the reliability iof such a device they really require to do so long before the trial!

They will require to have checked the instrument, the service log,the calibration process, the details of use on day and any other aspects of use. However they may find that the Crown are reluctant to cooperate with the defence on the basis that the whole issue of challenge is merely a “fishing expedition” for the defence.

Therefore when instructing your lawyer on this issue you must bring up the issue of device reliability if you consider it important eg If the reading seems way to high then you should explain to your lawyer what alcohol if any was consumed and why the machine must be at fault. You may require to obtain a forensic toxicologists report to validate your claim BEFORE the Crown will even allow your solicitor to obtain any details regarding the intoximeter device. If the Crown persist in their refusal to provide disclosure on this issue then other areas are open to the defence in an attempt to secure the access to documents that is required for the proper presentation of your defence. You will require an experienced defence lawyer to pursue these issues with the required vigour for success.

Breath Alcohol Less than 40ugs

In Scotland a Lord Advocate’s directive ensures that persons with a reading of 40ug or less will not be prosecuted and in England a driver will not be prosecuted under section 5 with a breath alcohol level of less than 40 ugs. In accordance with the guidelines contained in Home Office Circular 46/1983.

Drinking and driving is obviously a mistake for many reasons. One of the effects of driving under the influence that many people don’t realize involves your car insurance. If you’re covered by a policy at the time you’re convicted of a DUI, your rates may increase dramatically, or your policy may be canceled at the end of its contract. If you aren’t covered at the time of a DUI conviction, you may find it difficult securing future coverage.

Below, you’ll learn more about how drunk driving can affect your car insurance policy and your rates. We’ll also describe the purpose of an SR-22. Finally, we’ll offer a few tips that you can use to get car insurance in the event you’re caught driving under the influence.

The Purpose Of An SR-22

Driving under the influence carries significant consequences. You’ll likely be required to file an SR-22 if you’re caught and convicted of a DUI. In its simplest form, an SR-22 is a statement that validates that you have adequate car insurance coverage. An offender’s suspended driver’s license is usually returned when this statement is filed.

Most states (there are a few exceptions) legally require drivers who have received a DUI conviction to file an SR-22 with their local DMV. By charging much higher premiums, some car insurance carriers will offer special SR-22 coverage for “high risk” drivers. Other insurers do not offer insurance to “high risk” driver’s and will typically cancel a “high risk” driver’s policy.

Remaining Under The Radar

For years, there’s a been a bit of a disconnect between the some court systems and some local departments of motor vehicles. DUI convictions are supposed to be delivered to the DMV that is located in the jurisdiction of the court. Sometimes, this fails to happen. A driver can in effect avoid filing an SR-22 if for some reason the DUI offense is not reported to the driver’s local DMV. If this is the case, the driver’s alcohol-related offense may not be discovered by his car insurance company. Though this happens quite frequently, many providers learn of a policyholder’s DUI years later and raise the premiums accordingly.

Don’t Wait To Shop Around

A common mistake among those who have been convicted of driving under the influence is waiting until their policy has been canceled before finding an alternative. If you find that your current insurer is canceling your policy, it may be because they have found about your DUI conviction. In that case, anticipate other providers discovering your DUI, too.

It’s easier to find an insurer willing to offer an SR-22 insurance policy if you’re already covered. Shop early while you still have coverage from your current carrier. If you find that the larger, established carriers are unwilling to insure you, check with the independent agents in your area.

Picking Up The Pieces And Planning Ahead

Driving under the influence can have a dramatic impact on your car insurance for several years. It can substantially increase your rates or cause your current provider to cancel your policy. Basically, a Driving Under the Influence conviction limits your options severely. But, don’t let that dissuade you from shopping for car insurance. If the Department of Motor Vehicles has your DUI in their records, paying higher premiums for your policy is pretty much inevitable. But, the alternative – driving without coverage – can lead to hefty penalties, financial loss and even jail time.

While a DUI conviction may stay on your record for 10 years, auto insurance companies usually only use it for calculating your premium for about 3 years, sometimes less. Know your options, plan ahead and work toward putting the experience behind you.

Operating an automobile safely is difficult enough under the best conditions, but add the effects of alcohol or other mind altering chemicals and the task can become nearly impossible. A large portion of traffic deaths and serious accidents are caused by alcohol or drug-impaired drivers, although because of their loose state, many of them survive the incidents without serious injury. This has led all 50 states to establish strict laws concerning drivers who operate vehicles while under the influence of drugs or alcohol. In some states, violation of these laws is called DUI, or driving under the influence. Other states refer to this violation as DWI, short for Driving While Intoxicated.

Many state DUI laws were developed in response to federal highway funding mandates. In order to qualify for federal road maintenance revenues, individual states were compelled to define a legal age for alcohol consumption and laws defining the legal level of intoxication (alcohol blood level) for drivers. Most states established a legal drinking age of 21 years, although some allowed the consumption of low-alcohol beers and wines at age 18. Later federal highway mandates encouraged all states to agree to a uniform drinking age of 21.

If a law enforcement officer observes suspicious driving behavior, they can legally perform a traffic stop of that vehicle. A strong odor of alcohol, slurred speech or general incoherence can lead to a field sobriety test to roughly determine intoxication. A DUI charge cannot be issued through suspicion alone, however.

If the driver fails to demonstrate the capacity for rational thinking and motor skills during these field tests, the officer can then ask permission to perform a blood alcohol content test, commonly abbreviated BAC. In a DUI case, the test must show a percentage of alcohol in the driver’s bloodstream over a legal limit. In many states, this legal limit for DUI is .10% BAC, although many states have adopted a lower .08% BAC.

The legal blood alcohol level for drivers under the legal drinking age can be as high as .02% or as low as absolute zero. If any driver demonstrates a BAC over the legal DUI limit, he or she can be charged with a DUI immediately and booked into a holding cell for at least enough time to become sober again. Some law enforcement officers may use a special breathalyzer to determine BAC, which is seen as less invasive than the standard blood test. Because a person’s BAC lowers over time as the alcohol is processed by the body, police officers must gather evidence quickly to establish a DUI charge. DUI suspects may also refuse to take a BAC test or call a lawyer for legal protection from interrogation.

Many states have a progressive DUI policy, which generally means that a first-time offender may not receive the maximum penalty allowed under the law. A judge can use some discretion when sentencing those convicted of DUI, especially if the accused pleads guilty and demonstrates remorse for his or her actions. Generally speaking, a first DUI conviction could lead to a revoked driver’s license for up to a year, a substantial fine and/or community service, and several penalty points when your driving rights are eventually restored. More serious DUI penalties could include prison time, court-ordered alcohol rehabilitation and a lifetime suspension of your driver’s license.

If you or someone you know is charged with a DUI or DWI and need legal help; there are many resources on the web. One resource that I would recommend is http://www.handelonthelaw.com

Illinois DUI Law

DUI FACT SHEET

DUI DEFINED: The operation of a motor vehicle in the State of Illinois while 1) having a blood or breath alcohol concentration of .08 or greater; 2) under the influence of alcohol; 3) under the influence of any intoxicating compound, compounds, drug or drugs either in combination with alcohol or alone, rendering the driver incapable of driving safely; or 4) having any amount of a controlled substance, intoxicating compound, or cannabis in the driver’s system resulting from the illegal use of that substance, compound or cannabis.

PENALTIES: If charged as a Class A misdemeanor, the potential penalty is up to 364 days in jail and a fine of up to $2,500. If charged as a Class 4 felony, the potential penalty is up to 3 years in prison and a fine of up to $25,000.00. In certain instances it may be a Class 2 Felony carrying up to 7 years in prison.

LICENSE PENALTIES: There are two types of driver license penalties associated with a DUI. The first is the Statutory Summary Suspension. This happens on the 46th day after receiving notice, and is related to the taking of chemical tests shortly after being arrested for a DUI. This suspension can range from 3 months to 3 years. There are strict time periods related to court proceedings for a Summary Suspension.

     If you receive such a suspension, you have only 90 days in which to contest it in court by filing a petition, asking a judge to lift the suspension. After filing the petition, the State must give you a hearing on your license status within 30 days or the suspension is lifted. This is a complex procedure, and it is best to have a lawyer quickly to best protect your driving privileges, or to assist you in obtaining a Judicial Driving Permit (JDP), which may allow you to drive during your suspension for work, school, or medical care.

     The second type of license penalty is a revocation. This takes place with a conviction on the DUI, and takes away your driving privileges without a time limit. It is very difficult to have your license restored after a revocation. Individuals who are first time DUI offenders are eligible for supervision. This is not a conviction, and will not result in a revocation.

CRIMINAL MATTER: A DUI is a criminal charge, and the process after the arrest is the same as all other criminal charges.

DISCOVERY: The state must provide to you and your attorney the evidence that it has against you. This would include police reports, video tapes, hospital records, test results, status of testing equipment, and all other information in the state’s possession relating to the charges.

MOTIONS: This is a request by an attorney asking the judge to order that something be done. Some motions, if successful, such as Motion to Quash Arrest, Motion to Suppress Evidence, and Motion to Suppress Statement, can result in a case being dismissed. Experienced lawyers monitor the case and the evidence to determine if there are important motions to be made that affect their client’s freedom.

PLEA AGREEMENT: This is when the State’s Attorney, Defense Attorney, and Defendant agree what penalty will be imposed if the Defendant pleads guilty. An experienced attorney knows what the usual penalties are for specific situations; in that way he can arrange for the best possible outcome for his client.

TRIAL: In the event that there is no agreement in return for a plea (or the case is not disposed of by way of a motion), then a trial is held, and the defendant maintains his plea of not guilty. At trial, the state presents evidence to either a judge or a jury. If the state does not prove the defendant guilty beyond a reasonable doubt, the defendant is found not guilty and the case is over. If guilt is proved beyond a reasonable doubt, then the judge who presided at the trial will impose a penalty within the boundaries of the law.

© 2007 Shestokas Raines & Malavia, P.C

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