Driving Under the Influence of Alcohol or Drugs (DUI, DWI, OWI, Drunk Driving)

Field Sobriety and Breath Tests

Field sobriety tests

Before the police can arrest you for DUI, they must have reason to believe that you were operating a motor vehicle while under the influence of alcohol. To help them justify the arrest, the police will probably ask you to perform field sobriety tests at the arrest scene.

For example, they might administer the horizontal gaze nystagamus (HGN, where your eyes follow an object that the officer is holding in his hand). They may additionally ask you to recite the ABC's, perform the walk-and-turn test (commonly referred to as "walking a straight line"), and the one-legged-stand.

Portable breath test

You may be asked to blow into a machine at the scene of the arrest. This machine is known as a Portable Breath Test (PBT). If the results of the PBT show that you are over the legal limit of .08, the police will use those results in court to establish grounds to arrest you. 

However, the PBT results are not admissible in the DUI prosecution, and your refusal to blow into the PBT will not result in any action being taken against your driver's license. Nor will your refusal to perform the field sobriety tests result in any adverse action being taken against your driver's license.

Taking or refusing field sobriety and PBT tests

My advice is that you not perform any of the field sobriety tests and that you refuse to take the PBT. Taking these tests only helps police prove their case, and refusing them results in no negative consequences to you.

The police will employ tactics in an effort to trick you into taking the tests. They will suggest, insincerely, that taking the tests will earn you your ticket to freedom. By the same token, you will be threatened with arrest if you show a reluctance to submit to the tests.

And you probably will be arrested if you refuse to submit to these tests. But you will be arrested if you take the tests, with the difference being that by taking the tests, you provide the police with evidence to use against you in court.

When you are asked to take these tests, before you refuse to do so, ask to speak with your lawyer. The police are entitled to refuse that request, and they probably will.

In court, the State will attempt to use your refusal to prove that you were afraid to take the tests because you thought you were guilty. However, their not allowing you to consult your lawyer will provide you with an explanation of why you refused to take the tests.

Blood Tests and Their Different Uses

While the police always have the right to require you to take a blood test instead of a chemical test, a blood test most typically comes into play when you are injured in an accident. Because the level of alcohol in your system can affect the medications the emergency room administers to you, the doctor often orders blood tests.

The sample a hospital uses in such circumstances typically is based upon blood serum or plasma, both of which contain more water than whole blood contains. The law requires that the blood serum or plasma reading be reduced to whole blood equivalents. This will result in a lower reading for legal purposes than what is shown in the hospital records.

The police are entitled to subpoena these records in order to assist them in proving a DUI charge. However, the blood tests that are taken at the request of the emergency room physician in the course of treating you are not admissible for purposes of determining whether or not your license will be suspended due to registering over the .08 legal limit.

It is likely that the police will be present at the hospital while you are being treated. The hospital personnel will, upon request, advise the police of the results of any blood tests during examination. These results, if they indicate that you are over the legal limit, will form a basis for the police to ask you to submit to a second blood draw that the police will analyze in their own lab. The test results from the police lab most likely will be based upon the legally proper whole blood specimen.

It is the results from this second blood draw that will determine if you will be suspended and for how long. Just as is the case with the chemical test, if you register over the limit, the Secretary of State will enter a suspension.

If you refuse to consent to blood testing that the police request, you will be considered, for purposes of the suspension, as having refused testing. The fact the hospital drew blood during your examination at the emergency room does not overcome your refusal to submit or consent to any further blood testing by the police.

In circumstances in which you are involved in an accident and someone else suffers bodily injury, the police can essentially force you to provide a blood sample. In addition, if you are unconscious, you are assumed to have given your consent to a blood draw.

Blood draws are more reliable than chemical tests. Whereas chemical tests rely upon converting your breath into an approximation of the amount of alcohol in your bloodstream, the blood test is a direct reading of the alcohol in your bloodstream.

However, there are certain procedures that the police are required to follow in drawing the blood and preserving the sample that may work in your favor. Something known as the absorption curve may also be relevant to defending a DUI.

Chemical Breath Test and Consequences of Refusal of Testing

Chemical breath test defined

Once the police arrest you, you will be asked to take a chemical breath test to determine if your blood alcohol content is over the legal limit of .08. If you fail the test or refuse to take it, you will receive a Statutory Summary Suspension ("SSS") of your driver's license.

The machine used for the SSS is different from the PBT machine, and it is administered under different conditions that are supposed to guarantee its accuracy. As a result, the rules on admissibility in court of the results of the chemical breath test and the consequences of refusing are quite different.

Consequences of taking or refusing chemical breath test

DUI prosecution

The results of the chemical test are admissible against you in the DUI prosecution. Moreover, your refusal to take the chemical test will be used in court as evidence that in your own mind, you thought you were guilty.

Length of chemical test suspension

First offender

For purposes of determining the length of the SSS for a current DUI arrest, if you have not been arrested for DUI in the previous 5 years, you are considered a "first offender", even if you have other DUI's on your record that are older than 5 years. A first offender who takes and fails the chemical test will receive a 6-month SSS. A first offender who refuses to take the chemical test will be suspended for 12 months.

Non first offender

If you had a DUI arrest within the previous 5 years, and if for the current DUI you failed the chemical test, your license will be suspended for 12 months. During that 12 months, you cannot drive for any reason whatsoever, even for work.

If you had a DUI arrest within the previous 5 years, and if for the current DUI you refused the chemical test, the SSS will run for 36 months. During that 36 months, you cannot drive for any reason whatsoever, even for work.

In determining whether you are a first offender, a DUI arrest within the previous 5 years that resulted in court supervision, or that resulted in dismissal of the DUI but in entry of a breath test suspension on your record, prevents you from being a first offender if you refused the test for the current DUI. Only if you took the test for the current DUI and were found not guilty of the previous DUI following a trial would you qualify as a first offender.

Eligibility for work permit

Monitoring Device Driving Pemit (first offender)

A Monitoring Device Driving Permit (MDDP) is available to first offenders whose license has been suspended for failing or refusing to take the breath or blood test.  The SSS takes effect on the 46 day after you are arrested.

A first offender, whether suspended for 6 or 12 months, cannot drive during the first 30 days of the suspension. Starting on the 31st day after the SSS takes effect and until it ends, a first offender can obtain from the court an MDDP to drive any place, any time, for any reason.

In order to obtain the MDDP, the applicant must agree to install, and pay the fees for, a machine that measure breath alcohol content.

Restricted Driving Permit (non first offender)

Non-first offenders cannot request or obtain a MDDP. They must wait out their suspension and then apply to the Secretary of State for a Restricted Driving Permit (RDP). That process is discussed in great detail elsewhere on this web site at the topic "Driver's License Reinstatement ".

Decision to Take or Refuse the Test

If you are a first offender, my advice is that you refuse the breath test. If you are not a first offender, you may want to consider taking the test.

Admittedly, your refusal to take the test would make it more difficult for the State to prove the DUI. However, even if you defeated the DUI, you would not have the right to even request a work permit for 3 years, instead of 1 year if you took and failed the test.

How Suspensions and Revocations Differ

Suspensions

A suspension comes about in connection with a DUI arrest because you either failed or refused to take the chemical test. From earlier in this article, remember that the results of taking or refusing the chemical test versus taking or refusing the PBT have entirely different consequences. Regardless of whether you refused or took the PBT, nothing will happen to your license because of that test failure or refusal.

In the case of a DUI chemical test, a suspension will be for 6, 12 or 36 months as discussed above. Provided that there are no other holds on your license, at the end of the suspension time, you are free to drive upon satisfying some minor requirements for the Secretary of State and upon payment of the reinstatement fee.

You are not legally entitled to drive until you pay the reinstatement fee to the Secretary of State. If you are caught driving before you have paid the reinstatement fee, even if your suspension has ended, you will be driving illegally and will likely be ticketed for driving on a suspended license.

Revocations

In terms of a DUI arrest, a revocation occurs only if you are convicted of DUI. If you receive court supervision, or if the DUI is reduced to a lesser charge such as reckless driving, or if the DUI is dismissed but the breath test suspension stays in effect, you will not be revoked.

For a first DUI conviction, the revocation period runs for a minimum of 1 year. If there is a second DUI conviction within 20 years of the first conviction, the second revocation will be for a minimum of 5 years. For a third conviction, the revocation is for a minimum of 10 years. If a fourth conviction occurs after January 1, 1999, the revocation is for life and you can never drive again, even for work.  Out-of-state convictions are included in determining whether there is a lifetime ban.

The length of the revocation represents the minimum period of time you will be revoked. The end of the 1, 5 or 10 years means nothing more than that you are entitled to request reinstatement of your driver's license if there is no SSS still in effect.

You should not interpret this right to request reinstatement as meaning you will automatically receive a permit or be reinstated. You must first undergo the hearing process with the Secretary of State that is described in detail elsewhere on this web site at the topic "Driver's License Reinstatement ".

Therefore, do not act under the mistaken impression that if you are convicted of DUI, you will be revoked for a year and then automatically be able to obtain a license or permit from the Secretary of State. A permit, let alone driver's license reinstatement after a DUI revocation, is anything but automatic.

Sometimes there is a confusing interplay between a SSS and a DUI conviction and revocation. You may be revoked for 12 months. At the same time, you may be suspended for 3 years. The Secretary of State cannot and will not give you a hearing to request a license or RDP until the 3-year suspension has ended.

Only once the suspension ends may you have a hearing with the Secretary of State. At that point, you are entitled to request reinstatement of your driving privileges or an RDP. That process is described in detail at the topic "Driver's License Reinstatement ".

If the revocation is for 5 or 10 years and you are suspended for 3 years, you may request a permit at the end of the 3 years. However, you cannot request reinstatement while the revocation is still in effect. In order to receive a permit while the revocation remains in effect, you must prove that your inability to drive has caused you undue hardship making it to work and/or driving on the job.

Possible Sentences Upon Being Convicted of DUI

DUI is a class-A misdemeanor. If convicted, you face up to 364 days in the county jail and/or a fine of up to $2,500. In some cases, although not for a first time DUI, you can be charged with a felony.

Short of an outright acquittal or dismissal, the best disposition stemming from a DUI charge is court supervision. If you receive court supervision, it will be imposed for a certain length of time, usually between 12 and 24 months. During the period of court supervision, there are certain things that will be required of you.

First, you must obey all laws, in particular all traffic laws. You must obtain a drug and alcohol evaluation and comply with any of the requirements for driver risk education (sometimes known as Dry Roads, remedial education or DRE).

You may also be required to complete alcohol counseling, depending upon your classification as Level I, II or III. Your drug and alcohol evaluator will determine your classification.

You will be assessed a fine, court costs, and be required to attend a Victim Impact Panel ("VIP"). You will not go to jail if you obey your supervision requirements.

Your driver's license may be suspended for a period of time, but it will not be revoked if you are granted supervision. Once the suspension ends and you pay the Secretary of State the reinstatement fee, you are automatically entitled to full driving privileges.

If you do not receive court supervision or you fail to honor it, your license will be revoked and you may be sent to jail. To be legal to drive again, you must apply to the Secretary of State, even for a work permit. For more information on that process, please click here. "Driver's License Reinstatement ". You will be much better off obtaining court supervision for DUI, thereby avoiding a license revocation.

Court supervision for a DUI is available only once in your lifetime. The supervision will, for the remainder of your life, appear on your driving record that is available to the Secretary of State, the courts, the probation office and the State's Attorney.

It will not be disclosed to the general public, such as an insurance company or an employer. You may have heard that supervision does not "count against your record", but that is not the case in so far as what law enforcement authorities are entitled to know.

If you are not eligible for supervision or if for whatever reason the court system decides not to grant you supervision, you may be placed on probation or conditional discharge. Probation and conditional discharge are convictions that will result in the revocation of your driver's license. You might also receive jail time.

If you are sentenced to probation, you may be required to report to your probation officer on a monthly basis during the length of your probation. Conditional discharge is essentially the same disposition as probation, the only difference being that there is no monthly reporting requirement.

Why You Do Not Want to Be Caught Driving on a Suspended or Revoked License

If your license is suspended or revoked due to a previous DUI, and if you are caught driving, you have a number of problems with which to deal. In the first place, it is difficult to defend such a charge. All the State need prove is that the police officer observed you driving and that at the time you were driving, you were suspended or revoked.

Upon being convicted for driving on a suspended or revoked license due to a previous DUI, you are in theory eligible for court supervision once every 10 years. However, most judges are extremely reluctant to grant court supervision for this offense.

You can expect to serve 10 days in jail, with no good time credit, upon being convicted. Sentencing alternatives such as work release or weekends are not available during these 10 days. It is all straight time.

A possible option is 240 hours of community service. The problem with this sentence is that it requires a significant time commitment. In any event, many judges are opposed to community service of that length because the majority of individuals do not complete the community service within the time allowed.

In addition to jail, you will face a new suspension or revocation equal in length to the original suspension or revocation. For instance, if you were originally suspended for a year, the driving while suspended conviction will mean another years' suspension.

You do not have to be breaking the law in order to be caught driving on a suspended or revoked license. If you are hit from behind in an automobile accident, the police will be called to the scene and you will be arrested and ticketed for driving while suspended or revoked.

If the police stop you because your license plate light is burned out, you will be ticketed for driving while suspended or revoked and be hauled off to jail. If you happen to encounter a police roadblock, you will be ticketed and jailed. If an officer recognizes you as being revoked, you will be ticketed and arrested.

With modern day communications and computers, it is easy for the police, when they have nothing else to do, to run your license plates. As you can see, in none of these scenarios have you engaged in any bad driving, but you would still find yourself in trouble.

Also keep in mind that even if you are only suspended, you are not legally entitled to drive until you pay the reinstatement fee to the Secretary of State. If you are caught driving before you have paid the reinstatement fee, even if your suspension has ended, you will be driving illegally and probably will be ticketed for driving on a suspended license.

Out-of-State DUI Lawyers: