So You Have Been Arrested for DUI/DWI ?


If you have just been arrested for Driving Under the Influence (DUI)/Driving While Intoxicated (DWI) for the first time, you may feel uncertain about the resulting court proceedings. Unfamiliar with the criminal justice system, you may consider having a “friend of a friend” or your family’s lawyer represent you on the charges. This may be a critical mistake. DUI/DWI law can be quite complex. Furthermore, the stakes are high—even as a first time offender, you may face hefty fines, probation, revocation of your license and a dramatic rise in your automobile insurance rates. You may even be sentenced to some jail time. Therefore, it is important to hire a defense attorney who has experience in this area of law.

Challenging Drunk Driving Charges

Even if you believe your situation provides the prosecutor with a “slam dunk” case against you, an experienced DUI/DWI attorney will be able to examine your case and make challenges, where appropriate. The critical elements of a DUI/DWI conviction are as follows: Diving or operating a motor vehicle on a road or highway while having a Blood Alcohol Content (BAC) level above the legal limit.

A DUI/DWI conviction depends on a test of your BAC. Unfortunately, often times a person is not even the slightest bit aware of what his or her BAC is prior to stepping into a vehicle. In fact, you may have been completely unaware of your “guilty” condition prior to having your BAC tested. Nonetheless, “intent” to drive drunk is not required for a drunk driving conviction. Still, close cases provide the greatest basis for a successful defense. For example, where 0.8 percent BAC is just within the legal limits and you are found to have 0.9 percent BAC, your attorney may have a strong case when arguing the invalidity of your blood alcohol test. (Also, in a close case, an experienced defense attorney may succeed in negotiating a plea to a lesser offense.)

Your BAC will be tested either through a Breathalyzer test, urine test or direct withdrawal of your blood. Although you may not have the right to dictate the terms of the blood-alcohol testing, you should be asked for permission prior to the administration of the test. Refusal to submit to testing, however, often results in revocation of your license. These tests, especially the Breathalyzer test, may be improperly influenced by a variety of factors including: prescription drugs and medical conditions, certain dental work, the use of chewing tobacco, and even burping in the middle of testing. Because the percentage of your blood that consisted of alcohol at the time of testing is critical to the case against you, an experienced DUI/DWI attorney will examine whether any of the circumstances of your testing can be challenged.

An experienced attorney will also examine whether it can be argued that you were not “driving” the vehicle prior to your arrest. Some states use the word “driving” in their statutes and others use the word “operating.” While the definition of what constitutes “driving” a motor vehicle is more broadly interpreted than the definition of what is found to constitute “operating” a motor vehicle, in the appropriate situations, this element of the charge against you may be challenged. The relative success of these challenges generally depends on the trend of the actual cases interpreting the DUI statute in your state.

Often times, just sitting behind the wheel of a running vehicle will constitute “driving” or “operating” a vehicle. If, however, you were unconscious behind the wheel of a car with a running engine, there is an argument that you were not “driving” or “operating” the vehicle while intoxicated. On the other hand, even in cases where a person is found sleeping in the car with the keys in the ignition, courts have found this to constitute “operating” a vehicle or being in the “physical control” of a vehicle. Some jurisdictions have been especially stern, finding that DUI statutes are meant to prevent drunk drivers from getting into cars, except as a passenger. Further, there is a good argument that can be made that you were not “operating” a vehicle, which was in fact inoperable prior to your arrest. Moreover, the prosecution should be forced to prove that you were actually the individual driving the vehicle.

Your attorney may also raise the argument that you were not driving a “motorized vehicle” as intended by the applicable laws in your state. For example, although motorcycles clearly constitute a motorized vehicle, the laws of your state might not encompass a riding lawn mower. Finally, your attorney may argue that you were not actually driving on the “highways” or “roads” encompassed by the DUI law of your state. Some examples of areas that have found outside of the scope of various states’ DUI statutes are driveways, ditches, frozen lakes and parking lots. These court decisions are, however, made on a case by case basis and can vary from state to state and even from court to court within the same state.


DUI/DWI charges are much more than a mere traffic violation and should be taken seriously. It is essential that you choose an attorney to represent you, who has experience with DUI/DWI law in your particular state. You should ask potential attorneys about their background in this area of the law and about their outcomes in representing clients charged with drunk driving. Be curious, ask lots of questions, and make an informed decision. Challenging drunk driving charges is never easy, but an experienced attorney will recognize and address the weaknesses in the case against you.


Felonies are typically the most serious crimes in any system of criminal law. A standard definition of a felony is any crime punishable by more than one year in prison or by death. This means that any crime that has a sentence of only a fine or confinement in the local jail is not a felony. Often the offense itself is not labeled as a felony, but the punishment tells the public that the offense is a felony. On the other hand, state codes may label a crime a “gross” or “aggravated” misdemeanor but provide for a sentence of more than one year in the state penitentiary system, thereby ensuring that the so-called misdemeanor is treated as a felony in many respects.

If a crime is a felony, additional criminal procedures apply. The right to a court-appointed attorney in cases where the defendant is too poor to afford to hire a lawyer is usually triggered if the charge is a felony, but not for less-serious crimes. Likewise, whether or not a criminal defendant must be present in court for various parts of the process may depend on whether he or she is charged with a felony. In some jurisdictions, felonies can only be charged upon a grand jury indictment, while lesser crimes can be charged by a written information. Criminal defendants and witnesses can have their testimony disregarded in some jurisdictions by showing a prior conviction for a felony but not for a lesser crime. Finally, many jurisdictions base their “three strikes” laws on felonies but not misdemeanors. If the offender has been twice convicted of a felony, one more felony conviction will subject him to life in prison.

In addition to differences in procedural criminal law, the substantive law can be affected if a crime is designated a felony. Some statutes make an accidental death a murder if it occurs in the commission of a felony, but if it occurs in the commission of a lesser crime, it is only manslaughter. Burglary is defined at common law as breaking and entering a house for the purpose of committing a felony; if the purpose was not to commit a felony the crime cannot be charged as burglary. The crime of conspiracy may carry a harsher penalty if the offense is conspiracy to commit a felony rather than conspiracy to commit a misdemeanor. Justifiable homicide is sometimes described as a killing to prevent the commission of a felony, although more commonly it is limited to prevention of certain of the most serious felonies.

A person convicted of a felony may have more restrictions on their rights than a person convicted of a lesser crime. In many jurisdictions, felons cannot serve on juries. Often times they lose their right to vote or to practice certain professions, such as being a lawyer or a teacher. Felons may be prohibited from owning guns or serving in the military. Some states have a “three strikes, you’re out” statute that provides that a person who already has been convicted of two felonies may be sentenced to life in prison if he or she is convicted of a third felony.

Examples of some felonies are assault in the first degree or assault that causes serious bodily injury, all degrees of murder, rape or sexual abuse in the first degree, grand theft, kidnapping, embezzlement of large amounts of money, serious drug crimes, and racketeering.


This publication and the information included in it are not intended to serve as a substitute for consultation with an attorney. Specific legal issues, concerns and conditions always require the advice of appropriate legal professionals.

Criminal Vs. Civil Law

Following O.J. Simpson’s acquittal for the murders of Ronald Goldman and Nicole Brown Simpson, Ronald’s family and estate and Nicole’s estate brought civil actions against O.J. In these actions they alleged that O.J. murdered Ronald and Nicole. This prompted many people to wonder, “How could O.J. be tried twice for the same actions?” The answer to this question requires an understanding of the differences between civil and criminal actions. When the State of California tried O.J. for the murders of Nicole and Ronald that was a criminal trial. Following his acquittal, O.J. could not face a second criminal trial for murder. The second actions filed against O.J. were civil actions for wrongful death and survival. Ronald’s parents and Ronald’s estate and Nicole’s estate pursued these actions. The O.J. trials demonstrate several of the key differences between criminal and civil actions. First, the parties who are permitted to pursue criminal and civil actions differ. Second, the societal justifications differ for criminal and civil actions. Third, there are different procedural rules and requirements for criminal and civil actions.

Basic Differences Between Criminal & Civil Actions

Criminal actions are complaints brought by the state or federal government against parties accused of violating a law. Civil actions are defined as any non-criminal actions and involve private rights and remedies. Some examples include torts (such as negligence), contracts, real estate issues, wills and trusts, and family law matters. A primary and easily recognizable difference between civil and criminal actions is the party who is permitted to bring the action. Only the state or federal government may prosecute criminal actions. When they prosecute a criminal action they are acting on behalf of the citizens of the state or the United States. Both private citizens and the state and federal government can bring civil actions. When the state or federal government brings a civil action, it is acting on behalf of the citizens of the state or United States and when private citizens file civil actions, they are acting on their own behalf. The terminology used to describe the parties in civil and criminal actions also differs. In criminal cases the party pursuing the action is called the state or the prosecutor and the party charged with the crime is the defendant, or, the accused. In civil actions, the party pursuing the action is called the plaintiff and the party responding to the action is called the defendant.

Another difference between criminal and civil actions is the societal purpose or justification for the action. The criminal law system is the state’s primary instrument for preventing people from intentionally or recklessly harming one another. Its general purpose is to punish individuals found guilty of violating the law. Scholars identify several purposes for punishment: restraint, reform, deterrence rehabilitation, and retribution. In contrast, the purpose of a civil proceeding is generally not to punish a defendant but to compensate the wronged party. This is often accomplished through monetary compensation, but courts may also fashion equitable remedies such as requiring a particular action to be taken or stopped.

In both civil and criminal actions, the basic progress through the judicial system is the same. The pleadings or formal allegations of the parties regarding their claims are filed. The parties undertake discovery to obtain facts and information about the case. A trial is held at which the evidence is presented, witnesses are heard, and judgment is rendered. Then, in most cases, the parties have a right to appeal the result of the trial.

There are, however, many significant differences in the rules and procedures governing the progress of actions through the civil and criminal justice systems. For instance, in a civil proceeding, the action is commenced when the complaint is filed with the clerk of court and, depending on the jurisdiction, served on the defendant with a summons. In a criminal action, however, the process is more complex. After the defendant is arrested and the police officer drafts the complaint, a magistrate judge conducts a preliminary review of the arrest and complaint. This review is designed to insure that there is sufficient incriminating information to establish “probable cause” to believe that the defendant committed the crimes alleged in the complaint. If the magistrate determines the complaint is adequate to establish probable cause, the complaint is filed.

There is also a difference in the scope of criminal and civil discovery. In a civil proceeding, anything relevant to the case that is not privileged is discoverable. In contrast, discovery under the Federal Rules of Criminal Procedure is highly restricted, reflecting the Fifth Amendment right not to incriminate oneself and the Sixth Amendment right to confront witnesses. The contrast is illustrated by the differences in the civil and criminal deposition process. Under the civil rules, parties may depose all parties to the action and any other person necessary to obtain testimony relevant to the subject matter. Under the criminal rules, however, only depositions of a party’s own witnesses may be taken, and then only pursuant to a court order.

Because the consequences in civil actions are less serious than those in criminal actions,the due process requirements for civil actions are less stringent than those for criminal actions. That is, there are fewer procedural safeguards in a civil action because there is no risk of lost liberty through physical incarceration or stigmatization due to a wrongful conviction. Some of the constitutionally required due process safeguards in a criminal proceeding are the right to know what crime you have been charged with, the right to counsel, the right not to incriminate oneself, the right to a speedy and public trial by an impartial jury, the right to confront witnesses, and the right to have your guilt proven beyond a reasonable doubt by the state.

The constitution guarantees litigants in civil actions the right to notice of the action and an opportunity to be heard. It also shapes procedural requirements for personal jurisdiction (that is the judicial power to enter judgments with respect to particular defendants or property). But, in a civil action, there is no right to a speedy trial; although, some court administration systems set time limits for the completion of civil actions. The burden of proof in a civil action is also less than that in a criminal action. The party bringing a civil action must generally prove his or her case by a “preponderance of the evidence” as opposed to the criminal standard of “beyond a reasonable doubt.” Therefore, if a defendant is acquitted in a criminal action and a subsequent civil action is filed, all the issues may be relitigated in the civil action, because evidence which fails to prove guilt beyond a reasonable doubt may still be sufficient to meet the civil preponderance of the evidence standard. This is one of the reasons it was possible for O.J. to be found liable for the wrongful death of Ronald but not guilty of his murder.

Criminal actions are complaints brought by the state or federal government against parties accused of violating a law. In contrast, civil actions involve private rights and remedies. Common examples of civil actions are negligence, breach of contract and real estate matters. Three primary differences between civil and criminal actions are: (1) the parties who may bring the actions, (2) the societal purposes for the actions, and (3) the procedural rules and requirements for prosecuting criminal and civil actions.