DUI: A DUAL PROCESS

Unfortunately, too many of us have to face charges of Driving Under the Influence or the lesser offense of Driving While Ability Impaired. DUI and DWAI are serious crimes. Facing these charges can be humiliating, costly, time consuming, emotionally draining and often has long term impacts. I have included some of the potential penalties of a conviction for these charges but I am hopeful that an understanding of the process can help reduce some of the stress and emotional aspects of these cases.

Administrative revocation

Years ago it was very difficult to convict someone of DUI for the very simple reason that a driver could refuse to perform roadside maneuvers or any type of chemical test without consequences. The process completely changed with the evolution of our implied consent/express consent laws. Today a driver is required to cooperate in the taking of a blood or breath sample if an officer has probable cause to arrest for a drinking and driving offense. The consequence of a failure to do so is a license revocation. In order to ensure that our rights are protected, upon proper request, an administrative hearing is conducted by the Motor Vehicle Division. The purpose of the hearing is ensure that a chemical test was lawfully offered and that the test is accurate. This Express Consent Hearing remains the right of each driver whose license is taken at the time of arrest and it is in addition to and independent of the court proceeding.

Court proceeding

The court proceeding for the charge of DUI or DWAI requires an appearance in court and is conducted in order to determine guilt or innocense. While the Motor Vehicle Division determines whether or not a driving privilege is subject to restriction or revocation, the court determines guilt or innocense and what, if any, criminal penalties are to be assessed. Typical court penalties include alcohol treatment, public service, the payment of court costs, and jail. A conviction for DUI or DWAI may also give rise to further administrative restrictions. A second court conviction for DWAI or DUI within a 5 year period, for example, would require a one year license revocation.

The Administrative Procedure

If an administrative hearing is requested, the hearing will be conducted over the telephone by a hearing officer employed by the Motor Vehicle Division. The arresting officer will also appear by conference call if requested by the driver and he will be subject to examination by the driver. Prior to the hearing, the driver will receive police reports and information supplied to the hearing officer by the arresting officer which may help in formulating any questions. After the parties are given the opportunity to testify, the hearing will be closed and a decision will be made by the hearing officer. If the decision is favorable, the license is returned. If not favorable, the hearing officer will state what the restrictions will be on the driving privilege.

The Court Procedure

First appearance.

Includes a meeting with the prosecutor and an opportunity to resolve the case early in the proceedings.

Hearings

May be conducted a various times throughout the process and may involve a variety of legal issues much of which concern what evidence will ultimately be admitted in the event of a trial.

Pretrial conference

Involves another opportunity to resolve the case with the prosecutor. At this time information from the police reports and other evidentiary matters will have become known in order to allow both sides to engage in a more informed discussion about a possible resolution of the case.

Readiness hearing

Is usually 10 days prior to trial and is normally the last opportunity to resolve the case and to ensure that all pretrial matters are concluded.

Trial

Can be done to a jury or to the judge. Guilt or innocense will be determined.

Sentencing

The objective is avoid this stage but if a guilty verdict or a plea agreement is reached, sentencing will be done by the judge.

DMV CONSEQUENCES FOR ALCOHOL RELATED DRIVING OFFENSE (2009):

1^st Offense 2^nd Offense 3^rd Offense

EXCESS BAC (.08 or higher) 9 mo. Revo. May apply 1 yr. Revo. 2 yr. Revo. May apply

for restricted lic. after 1 mo For restricted license

REFUSAL 1 yr. Revo 2 yr. Revo. May apply 3 yr. Revo May apply

for restricted license for restricted license

CONVICTION OF DWAI may be point based 2^nd offense w/n 5 yrs 2 yr revo

1 yr revo

CONVICTION OF DUI 9 mo. Revo. May apply 2^nd offense w/n 5 yrs 2 yr revo

1 yr revo

for restricted lic. after 1 mo

DWAI 2-180 days jail, 0-$500 fine, 24-48hrs UPS. Probation requirements: alc treatment, attend victim impact panel

DUI 5 days-1 yr jail, 0-$1000 fine, 48-96hrs UPS. Probation requirements alc treatment, monitored sobriety for 1 yr, attend victim impact panel

In many cases, the court may suspend all or part of the jail sentence, however, penalties may be increased depending upon prior history of alcohol related driving offenses.

Web Resources

FindLaw
Thomson West
U.S. Courts
Westlaw
United States Chamber of Commerce
FirstGov
Library of Congress
White House
Internal Revenue Service
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