DWI- WHAT YOU NEED TO KNOW

Drunk Driving / DUI - An Overview

Driving under the influence" (DUI) and "driving while intoxicated" (DWI) are two names for the crime of drunk driving. Other statutory names for this crime are "operating under the influence" (OUI) and "operating while intoxicated" (OWI). The different names for the crime reflect differences in the state statutes that define the crime. However, all the statutes have the common purpose of punishing drunk driving and driving under the influence of illegal drugs.

In 2001, more than 1.4 million drivers were arrested for driving under the influence of alcohol or narcotics. Police and highway patrol officers are cracking down on drunk drivers with increasing frequency as a result of influence from groups like MADD and public outcries in general. If you find yourself at the center of this crackdown, you need an experienced attorney to represent your interests and work toward the least restrictive outcome possible.

Many states have now lowered the legal blood alcohol concentration (BAC) limit from .10 to .08 percent for adults, and more than a dozen states have passed Zero Tolerance laws that prohibit drivers under twenty-one years old from having any measurable amount of alcohol in their blood system. As the legal limits decrease, so do your chances of being charged with drunk driving if you do actually drink and drive. If you've been arrested for drunk driving, you need the skill and expertise of an experienced drunk driving attorney to see you through the complicated legal maze that awaits you.

In recent years, the penalties for drinking and driving have increased, especially for repeat offenders. Louisiana has passed laws requiring mandatory jail time for subsequent drunk driving convictions. The fines have become steeper, the license suspension periods have become longer, and getting a "hardship" license that permits travel to and from work has become more difficult. If you've been charged with drunk driving, you need the help of an experienced drunk driving attorney so that, in view of these ever-harsher penalties, you can work as a team toward the best possible outcome.

Fines and possible imprisonment may seem like the scariest part of a drunk driving charge, but the effects of a conviction can actually reverberate into the offender's life in other lasting and insidious ways, too. In some cases, the offender may have to forfeit his or her vehicle, for example, and in nearly all cases the offender has to surrender his or her driver license, at least temporarily. Without a license, it may be impossible to find or keep a job, or to take care of a family's needs. Auto insurance can be hard to get and extremely costly after a drunk driving conviction. A lawyer experienced in drunk driving law can explain all of the potential consequences and work hard to minimize the long-term effects of a drunk driving charge.

Driver’s License Suspension

In almost every DUI-DWI case, a driver has two cases to contend with. The DUI-DWI arrest results in criminal charges, but what most drivers do not realize is that an arrest also initiates a civil proceeding against the arrested motorist's driving privileges called an administrative license revocation (ALR). An ALR suspension is initiated against an arrested driver when he either refuses to submit to breath or blood testing, or alternatively, fails a breath or blood test. The legal authority to impose an ALR suspension against a driver lies in the Louisiana Revised statutes. This law states that each person who operates a motor vehicle on Louisiana roadways has impliedly consented to provide a specimen of breath or blood if arrested for DUI-DWI and provided with the applicable consequences of refusing to submit to testing.

Someone charged with DWI should be aware that they only have 15 days to request an Administrative License Revocation hearing (ALR) to challenge the suspension of their license. If you do not request the hearing within 15 days of your arrest, then your license will automatically be suspended 30 days after your arrest. If a hearing is requested, no action will be taken regarding suspension until after the hearing has taken place, even if the hearing takes place more than forty days after the arrest. The suspension period will probably be 90 days if you took the breath test or 180 days if you refused the exam. It takes about 6-9 weeks to obtain an ALR hearing. The ALR hearing is now done via telephone conference with judicial administration in Baton Rouge at which time the DPS must prove the following:

  • Whether the law enforcement officer had reasonable suspicion to stop the driver
  • Whether the officer had probable cause to arrest the motorist for drunk driving
  • Whether the officer complied with Louisiana implied consent law in terms of offering an opportunity to provide a specimen of blood or breath
  • Whether the driver refused to provide a specimen of blood or breath or failed a breath or blood test by registering al alcohol concentration of .08 or greater.

I will work hard to try and prevent your license from being suspended.

Most of the time, the State can prove that there was reasonable suspicion to pull you over and probable cause to arrest you. However, sometimes they make mistakes.

Jury Trial

Most people are not lucky enough to have the charges dismissed, and in order to win their cases, they have to take their cases to trial. I believe courts focus on two things at your trial. First, they want to know that you have learned your lesson. I will try to assure them that you were traumatized by this experience and that you will not drink and drive in the future. DWI is a crime that the jury can usually relate to. Most people have known someone who has been arrested for DWI. Second, the judge or jury considers whether the state has proven that you were intoxicated beyond a reasonable doubt.

The key in picking a jury is to find people who believe it is alright to have a drink and then drive and then giving them information that causes them to have reasonable doubt about whether you were intoxicated.

To establish reasonable doubt, I will do the following:

  1. Give an explanation for how you were driving
  2. Try and show that you stopped when the police officer asked you to stop
  3. Provide an explanation for whatever other signs of intoxication the officer says he observed.
  4. Obtain records of any of your physical handicaps.
  5. Tell the jury how much you had to drink and why this did not cause you to be intoxicated
  6. Show that there was no good reason for you to take the breath test.
  7. Challenge the accuracy of the Intoxilyzer 5000 breathalyzer.

The Prosecutor's Role in a Drunk Driving Case

Prosecution refers to the government's role in the criminal justice system. When criminal activity is suspected, it is often up to the government to investigate, arrest, charge, and bring the alleged offender to trial. Prosecutors are the lawyers who work for the government and who are responsible for putting on the government's case against a defendant. Prosecutors may be called county attorneys, city attorneys, or district attorneys. The prosecutor is the opponent or "adversary" of the criminal defendant and his or her attorney; the two sides go head-to-head against each other in court. Because these public attorneys focus their energies on prosecuting criminal cases, they are generally very experienced in criminal law, and it is therefore essential that the defendant's attorney have the same advantage. Thus, in order to best preserve a criminal defendant's rights and strike a fair balance in court, representation by an experienced criminal defense attorney, particularly one knowledgeable in Louisiana’s drunk driving law, is a must.

The Impact of a Drunk Driving Conviction on Auto Insurance

After completing the sentence imposed by the court, the drunk driving offender is often eager to resume his or her normal life. Returning to work, school, and other activities generally requires driving, however, and driving requires automobile insurance. One of the consequences of a drunk driving conviction that many offenders may not think about until the worst seems to be behind them is the prospect of obtaining auto insurance after a conviction. An attorney experienced in drunk driving law can explain — and possibly even circumvent — the full range of repercussions that can result from drunk driving, regarding insurance and otherwise.

Contact Edward Mouton at (318) 221-5213 for a consultation.

* LEGAL DISCLAIMER - This site provides legal information of a generally applicable nature. It is not intended to, and should not be taken as definitive legal guidance for any particular situation. Likewise, this site is not intended to substitute for an actual conversation with a lawyer who can give sound legal advice - based on the particular facts of your case.

DWI AND CDL

If you have a commercial driver license (CDL), a DWI conviction will lead not only to the loss of your CDL but also the loss of your livelihood. To preserve your license and your job, you should select an experienced DWI defense lawyer as soon as possible following a DWI arrest.

If you are convicted of drunk driving, you will not be able to receive a commercial driver license. Even if you are able to get your license restored following a conviction, you may not be able to purchase affordable commercial vehicle insurance. In other words:

DWI + CDL = no CDL

People with a CDL (Commercial Driver License) are also judged by a stricter standard when accused of drinking and driving in most states.

DWI defense attorney Edward Mouton is known in the Northwest Louisiana area for his aggressive defense of drunk driving and other traffic cases.

Remember, in Louisiana you have only 15 days to following a DWI arrest to challenge the suspension of your license. Contact F. Edward Mouton, Northwest Louisiana DWI Attorney or call (318) 221-5213 for a consultation to investigate your case and prepare a defense to challenge the reliability of inaccurate breathalyzer tests such as the Intoxilyzer 5000.

Commercial Driver license holders can no longer take Defensive Driving or Deferred Adjudication to clear moving violations from their driver’s records. This means that a minor traffic offense can affect your commercial driver license and your cost for commercial vehicle insurance.

Contact Edward Mouton at (318) 221-5213 for a consultation.

DWI PENALTIES

Choose from the following:

Probation
First offense
Second Offense
Third Offense
DWI With an Open Alcohol Container
DWI With an Accident
DWI Involving Death
DWI With a Child Passenger
DWI and Minors

Probation

Most clients charged with DWI receive Probation. Probation is a supervisory-type mechanism employed in the punishment phase of the criminal justice process. Parole comes into play after a person has been imprisoned and is released. Probation, by contrast, refers to a criminal sentence separate and distinct from incarceration. Probation is the most frequent sentence imposed and typically involves releasing the convicted offender into the community subject to a list of terms and conditions. The actual terms can vary widely, based on the underlying crime, the characteristics of the offender, and the resources of the probation system. All probations are subject to a requirement that the offender refrain from committing further crimes. The conditions of probation generally include the following: 1) reporting once a month to a probation officer 2) not breaking the law during probation; 3) paying a monthly supervisory fee to the probation office 4) performing community service hours during the term of your probation 5) attending DWI awareness classes dealing with the effects of alcohol or listening to victims of DWI related tragedies; 6) abstaining drinking alcohol while on probation; 7) fines and court costs; 8) submitting to a breath test by long enforcement or court personnel upon request; 9) installing an alcohol ignition interlock device on your car and only drive a car equipped with such as device; 10) a donation to Crime Stoppers; 11) to remain within the parish of your residence unless given permission by the court to leave it; and, 12) any other requirements the court sets for you.

First Offense

  • Driving privileges suspended for up to 90 days.
  • Up to 6 months in jail.
  • Fined up to $1,000, in addition to court costs.

Second Offense

  • Driving privileges suspended for up to one year.
  • Up to six months of jail time.
  • Fined up to $1,000, in addition to court costs.

Third Offense

  • Driving privileges suspended for up to two years.
  • 1 to 5 years in prison.
  • Possible home confinement.
  • Fined up to $2,000, in addition to court costs.
  • Possible loss of vehicle.
  • Six weeks in an inpatient substance abuse program, plus 12 months in an outpatient substance abuse program.

Fourth Offense

  • Driving privileges suspended for up to two years.
  • 10 to 30 years in prison.
  • Possible home confinement for 5 years.
  • Fined up to $5,000, in addition to court costs.
  • Possible loss of vehicle.
  • Six weeks in an inpatient substance abuse program, plus 12 months in an outpatient substance abuse program.

Your judge may even require you to enroll in a driver improvement program or work on community service projects. You must pay for all costs associated with these requirements.

DWI Involving Death

Vehicular homicide is the killing of a human being caused proximately or caused directly by an offender engaged in the operation of, or in actual physical control of, any motor vehicle, aircraft, watercraft, or other means of conveyance, whether or not the offender had the intent to cause death or great bodily harm, whenever any of the following conditions exists and such condition was a contributing factor to the killing:

Whoever commits the crime of vehicular homicide shall be fined not less than two thousand dollars nor more than fifteen thousand dollars and shall be imprisoned with or without hard labor for not less than five years nor more than thirty years.  At least three years of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence.  If the operator's blood alcohol concentration is 0.15 percent or more by weight based upon grams of alcohol per one hundred cubic centimeters of blood, then at least five years of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence.  If the offender was previously convicted of a violation of R.S. 14:98, then at least five years of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence.  The court shall require the offender to participate in a court-approved substance abuse program and may require the offender to participate in a court-approved driver improvement program.  All driver improvement courses required under this Section shall include instruction on railroad grade crossing safety.

DWI With Child Endangerment

DWI with a child passenger: A person shall be cited under the “Child Endangerment Law” if they drive while intoxicated and there is another person in the vehicle who is under 12 years of age.  

DWI and Minors

The crime of underage operating a vehicle while intoxicated is the operating of any motor vehicle, aircraft, watercraft, vessel, or other means of conveyance when the operator's blood alcohol concentration is 0.02 percent or more by weight if the operator is under the age of twenty-one based on grams of alcohol per one hundred cubic centimeters of blood.

On a first conviction, the offender shall be fined not less than one hundred nor more than two hundred fifty dollars, and participate in a court-approved substance abuse and driver improvement program.

On a second or subsequent conviction, regardless of whether the second offense occurred before or after the first conviction, the offender shall be fined not less than one hundred fifty dollars nor more than five hundred dollars, and imprisoned for not less than ten days nor more than three months.  

Contact Edward Mouton at (318) 221-5213 for a consultation.

THE HOWS AND WHYS OF IGNITION INTERLOCK SYSTEMS

The latest and most sophisticated tool in law enforcement’s arsenal to lower drunk driving statistics is the United States is the ignition interlock system. It is actually a fairly small device – often not larger than the first cell phones and it attaches to the dashboard of a vehicle. When a driver gets into the car he or she must blow into the system which then analyzes the blood alcohol content level of his or her breath. The thing to remember here is just that – it does not give an actual reading of the amount of alcohol in the individual’s bloodstream. The only way to do that is to actually draw a person’s blood. If the reading on the machine is higher than a level that has been predetermined – such as 0.02 – then the person is prevented from driving because the vehicle will not start.

The interesting – and perhaps little known – thing about ignition interlock systems is that they require the driver to blow into the device on more than one occasion while they are in the act of driving the vehicle. The reason for this is two-fold. First, it ensures that the vehicle was not started by another individual and then the drunk driver got behind the wheel and it ensures that the driver remains sober enough to continue motoring down the highway. If at any point the reading is higher than allowed, the car or truck will begin ‘acting up’ or do things that will call attention to itself such as automatically honking the horn and flashing the lights. The purpose of this is to attract the attention of law enforcement as well as other drivers – informing them that a potential drunk driver is on the road.

It should come as no surprise that legislators (in general), law enforcement and avid anti-drunk driving groups aggressively support the use of these instruments and many advocate for their installation in every vehicle in the country. Many civil rights groups feel this move may be too extreme and even unnecessary – and that it would needlessly foist additional costs on an already overburdened populace. The other side argues back that the additional costs are justified – if the end result is a reduction of drunk driving injuries and fatalities.

However, people are generally unaware of the number of problems that one encounters when using a breathalyzer. Besides the fact that it can give a false reading - it may also malfunction for any number of reasons. For instance, breathalyzers are sensitive to light and heat and must be calibrated regularly – by a person who has been trained to do so.

Needless to say, vehicle manufacturers and vehicle purchasers could both face a host of potential problems if the technology was defective. Too, the fact that the device also requires the driver to blow into it throughout the driving ‘operation’ – this most certainly complicates the entire process making it impractical at best – and perhaps even unsafe.

INDIGENT DEFENDER’S OFFICE

Indigency Determination and Availability of Clients:
 In The Court makes the initial determination of indigence, with further determinations of eligibility for services performed by the Public Defenders’ Office.

Fees and Accounting:
 Public defenders are paid by the state to handle criminal cases to provide legal representation for criminal defendants who cannot afford to hire a private attorney. Legal Aid lawyers are lawyers who handle civil (rather than criminal) cases, such as lawsuits, evictions, or divorces. Legal Aid lawyers usually provide their services free of charge. There is no constitutional right to a Legal Aid lawyer (for civil legal issues).

Under state law, you are entitled to a public defender (if you qualify as indigent) for a parole revocation or pre-revocation hearing if you are indigent and if you request a lawyer.

Caseload: 
The 1st Judicial District Public Defenders’ Office reported handling 22,583 cases in 2012. Of those, 3,876 involved juvenile matters, including 744 Child in Need of Care representations.

IMPAIRED “DRUGGED” DRIVING

Too, while alcohol itself is considered to be a type of 'drug' – DWI can result for drivers who actually have drugs in their system that are either legal or illegal substances and that adversely affect their ability to safely operate a motor vehicle.

A recent study conducted by the National Highway Traffic Safety Administration found that there has been a steady increase in marijuana (and other illegal drugs)-related vehicle collisions over the past decade. In addition, there has also been an increase in drug-related vehicle fatalities as well. Experts estimate that perhaps nearly five percent of highway deaths are now caused by 'drugged' drivers.

The problem is that it is more difficult to detect a 'drugged' driver and there are a multitude of types of illegal substances – from ecstasy pills to pot and crack to cocaine. Moreover, new ones are being devised almost daily. Police officers turn to the breathalyzer or field sobriety test as quick and easy tools to indicate a level of alcohol intoxication, but no such machine or test is available for drug testing on the spot. It is simply not possible for law enforcement to accurately track the level of impairment of a suspected 'drugged' driver.

Instead a blood test is the most authentic indicator of the presence and level or amount of drugs in a person's system. This complicates the arrest. There are other problems for police and prosecutors as well in 'drugged' driving arrests. For instance, drugs stay in the body much longer than alcohol so a blood test may indicate the presence of an illegal substance but the actual usage may have been days before – not near the time of the arrest.

But in the case of illegal substances, there is 'zero tolerance' for the presence of any drug in your system – and proof of such will generally result in a verdict of guilt even if your driving was not impaired.

Drugged driving is a form of 'driving under the influence'. It is equally as dangerous. Think twice before getting behind the wheel of a car or truck if you have taken any type of drug. It could be a costly mistake.

COMPLEXITY OF DWI LAWS

Intoxicated driving laws are complex and ever-changing. Their application depends on a wide variety of circumstances – and much like fingerprints – no two cases are ever alike. Defense attorneys have made some interesting observations on the broad topic of 'driving under the influence' in general. What follows are some of the more engaging thoughts.

*Depending on who is offering the explanation - the proliferation of DUI laws at the local, state and federal level can be traced either to increased safety concerns for innocent drivers or revenue enhancement for the various municipalities that have their fingers in the 'pie'.

*Our justice systems allows for the immediate discretion of a police officer in determining and making an arrest for suspected intoxicated driving. That means that even if an individual goes through the exercise of a sobriety and/or breathalyzer and passes it – the officer can still make an arrest based on their observations and judgment of the person's appearance of 'drunkenness'.

*DUI defense attorneys have good advice for avoiding a DUI arrest. First, avoid areas that are notorious for DUI stops. Too, stay abreast of sobriety checkpoints (which are advertised in the various mediums well in advance). It's probably best not to drink and drive late at night because most police have time on their hands – and what better way to spend it than stopping someone for suspected intoxicated driving.

*Drinking and driving IS NOT illegal. Restaurants and bars are filled with people who stop for a beer or have a glass of wine with dinner. For the most part – this does not make the individual 
'drunk' or in any way incapacitate their driving ability or judgment. The phrase coined for this type of alcohol consumption is 'social drinking' (not alcoholism) and the majority of adults make responsible decisions about drinking and driving.

*Any defense attorney will advise an individual who has been pulled over by the police to BE POLITE. Rudeness will only create a contentious situation and cause the officer to be inclined to view the 'facts' unfavorably for you. While this may seem unfair – it is probably more common than the average citizen would like to believe.

*Perhaps the number one piece of advice (free) that a defense attorney would give the general public is 'do not incriminate yourself'. Many times when an officer pulls an individual over he or she allows the person to 'tell on themselves'. Offering such common phrases as - 'I only had one or two beers' - opens the door for the officer to 'probe'. You are not 'required' to give a detailed accounting of your whereabouts or activities (this is America, after all).

AVOID GETTING STOPPED

Police who are out on the road are there for a reason. They are observing traffic and drivers for any type of infraction. The 'jackpot' of all driving offenses is drunk driving. Get stopped for that and it could cost you thousands of dollars in time, fines and future employment prospects. This article will provide the reader with some advice about how to avoid getting stopped and ticketed for intoxicated driving.

*The most obvious manner in which to avoid this unpleasantness is to never drink and drive. Surely most people already realize this. But here I must emphasize the word never. I would venture that thousands of people stop after work for a drink with friends or have a glass of wine with dinner then slide behind the steering wheel and head home. That is not illegal – and I can only emphasize that you are within your rights to do so. The distinction to be made is when a person's blood alcohol content level has reached the legal limit of 0.08% – THAT is when it becomes illegal to drive. Unfortunately, though, most citizens don't realize that if a police officer deems you to be too intoxicated to drive then they can still arrest you – even if your BAC is below the legal limit. And that is why I suggest you always have a sober designated driver.

*However, if you do choose to drink and drive then another great way to avoid getting stopped for suspected drunk driving is to make sure that your vehicle meets all the legal requirements to be on the road. For instance, make sure your license tag is current – nothing is more enticing to a police officer than to see an expired tab. It's an open invitation to delve into your life. In addition, make sure that your car or truck is in great working order. Unlit headlights or brake lights are as much an overture for a 'cop stop' as anything! Keep your tires properly inflated, your brakes in working order and your fluids topped off. It could be a problem if your car stopped working on a public roadway just as you were returning from having a 'beer with friends'.

*Drive safely, carefully, and cautiously. If there was ever a time to obey ALL traffic laws it's after you've had a beer or two. In other words I mean – don't speed, make complete stops at all stop signs, use your turn signals to let other drivers know your intentions, don't tailgate and don't pull any stunt that will call attention to yourself – like making a u-turn anywhere or playing your music so loud that your car shakes. Too, don't behave in any way that might provoke an officer of the law – if you do then you can expect to be pulled over. Behave out there – when it comes to avoiding a drunk driving arrest – discretion is the better part of valor.