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Table of Contents

Drunk Driving, DUI, and DWI FAQ

Bail: Getting Out of Jail After an Arrest

Defendants' Incentives for Accepting Plea Bargains

How Defendants' Mental States Affect Their Responsibility for a Crime

Defenses to Criminal Charges

Police Stops: What to Do If You Are Pulled Over



Bail: Getting Out of Jail After an Arrest


Everything you need to know about bail: what it is, how it's set, and how to pay it.

A person's first thought upon landing in jail is often how to get out -- and fast. The usual way to do this is to "post bail".

Bail is cash or a cash equivalent that an arrested person gives to a court to ensure that he or she will appear in court when ordered to do so. If the defendant appears in court at the proper time, the court refunds the bail. But if the defendant doesn't show up, the court keeps the bail and issues a warrant for the defendant's arrest.

How Bail Is Set

Judges are responsible for setting bail. Because many people want to get out of jail immediately (instead of waiting up to five days to see a judge), most jails have standard bail schedules that specify bail amounts for common crimes. An arrested person can get out of jail quickly by paying the amount set forth in the bail schedule.

The Eighth Amendment to the U. S. Constitution requires that bail not be excessive. This means that bail should not be used to raise money for the government or to punish a person for being suspected of committing a crime. Remember: The purpose of bail is to allow the arrested person to remain free until convicted of a crime, and the amount of bail must be no more than is reasonably necessary to keep the suspect from fleeing before a case is over.

So much for theory. In fact, many judges set an impossibly high bail in particular types of cases (such as those involving drug sales or rape) to keep a suspect in jail until the trial is over. Although bail set for this purpose -- called preventative detention -- is thought by many to violate the Constitution, courts have uniformly rejected this argument (the issue has never been decided by the U.S. Supreme Court, the ultimate arbiter of what is and is not constitutional).

If a defendant can't afford the amount of bail on the bail schedule, he or she can ask a judge to lower it. Depending on the state, this request must be made either in a special bail setting hearing or when the defendant appears in court for the first time (usually called the arraignment).

Paying Bail

Bail can take any of the following forms:

  • cash or check for the full amount of the bail
  • property worth the full amount of the bail
  • a bond (that is, a guaranteed payment of the full bail amount), or
  • a waiver of payment on the condition that the defendant appear in court at the required time (commonly called "release on one's own recognizance").

A bail bond is like a check held in reserve: It represents the arrested person's promise that he or she will appear in court when required. The bail bond is purchased by payment of a nonrefundable premium (usually about 10% of the face amount of the bond).

A bail bond may sound like a good deal, but buying a bond may cost more in the long run. If the full amount of the bail is paid, it will be refunded (less a small administrative fee) when the case is over and all required appearances have been made. On the other hand, the 10% premium is nonrefundable. In addition, the bond seller may require "collateral". This means that the person who pays for the bail bond must also give the bond seller a financial interest in some of the person's valuable property. The bond seller can cash in on this interest if the suspect fails to appear in court.

Getting Out of Jail Free

Sometimes people are released "on their own recognizance," or "O.R." A defendant released O.R. must simply sign a promise to show up in court and is not required to post bail.

A defendant commonly requests release on his or her own recognizance at the first court appearance. If the judge denies the request, the defendant then asks for low bail.

In general, defendants who are released O.R. have strong ties to a community, making them unlikely to flee. Factors that may convince a judge to grant an O.R. release include the following:

  • The defendant has family members (most likely parents, a spouse, or children) living in the community.
  • The defendant has resided in the community for many years.
  • The defendant has a job.
  • The defendant has little or no past criminal record, or any previous criminal problems were minor and occurred many years earlier.
  • The defendant has been charged with previous crimes and has always appeared as required.

For more information on bail, and everything else you need to know about criminal law, get  The Criminal Law Handbook: Know Your Rights, Survive the System, by attorneys Paul Bergman and Sara J. Berman-Barrett (Nolo).


© 2011 Nolo

Defendants' Incentives for Accepting Plea Bargains


Learn some of the most common reasons why a defendant might want to enter into a plea bargain.

As criminal courts become more crowded, prosecutors and judges feel increased pressure to move cases quickly through the system. Trials can take days, weeks or sometimes months, while guilty pleas can often be arranged in minutes. This provides defendants with an opportunity to negotiate a plea bargain.

Incentives for the Defendant to Accept a Plea Bargain

For most defendants, the principal benefit of plea bargaining is receiving a lighter sentence for a less-severe charge than might result from taking the case to trial and losing. Also, the outcome of any given trial is usually unpredictable -- but a plea bargain provides both prosecution and defense with some control over the result.

There are other benefits as well:

Saving money. Defendants who are represented by private counsel can save a bundle on attorneys' fees by accepting a plea bargain. It almost always takes more time and effort to bring a case to trial than to negotiate and handle a plea bargain.

Getting out of jail. Defendants who are held in custody -- who either do not have the right to bail or cannot afford bail, or who do not qualify for release on their own recognizance -- may get out of jail immediately following the judge's acceptance of a plea. Depending on the offense, the defendant may get out altogether, on probation, with or without some community service obligations. Or, the defendant may have to serve more time but will still get out much sooner than if he or she insisted on going to trial.

Resolving the matter quickly. A plea bargain provides resolution to the stress of being charged with a crime. Going to trial usually requires a much longer wait -- and causes much more stress -- than taking a plea bargain.

Having fewer or less-serious offenses on one's record. Pleading guilty or no contest in exchange for a reduction in the number of charges or the seriousness of the offense looks a lot better on a defendant's record than the convictions that might result following trial. This can be particularly important if the defendant is ever convicted in the future. For example, a second conviction for driving under the influence (DUI) may carry mandatory jail time, whereas if the first DUI offense had been bargained down to reckless driving, there may be no jail time for the "second" DUI.

Even for people who are never rearrested, getting a charge reduced from a felony to a misdemeanor has other benefits: 

  • Some professional licenses must be forfeited upon conviction of a felony.
  • Future employers may not want to hire someone previously convicted of a felony.
  • Felony convictions may be used in certain court proceedings (even civil cases) to discredit people who testify as witnesses.
  • Felons can't own or possess firearms.
  • In many jurisdictions, felons can't vote.

In addition, it is often advantageous to reduce a felony that constitutes a strike under a "three strikes" law to one that doesn't.

Having a less socially stigmatizing offense on one's record. Prosecutors may reduce charges that are perceived as socially offensive to less-offensive charges in exchange for a guilty plea. For example, a prosecutor may reduce a molestation or rape case to an assault. This can have a major impact on the defendant's relationship with friends and family. Perhaps even more critical, sometimes defendants convicted of stigmatizing offenses may be at a greater risk of being harmed (or killed) in prison than if they are convicted of an offense that doesn't carry the same stigma.

Avoiding hassles. Some people plead guilty -- especially to routine, minor first offenses -- without hiring a lawyer. If they waited to go to trial, they would have to find a good lawyer and spend both time and money preparing for trial.

Avoiding publicity. Famous people, ordinary people who depend on their reputation in the community to earn a living, and people who don't want to bring further embarrassment to their families all may chose to plead guilty or no contest to keep their names out of the public eye. While news of the plea itself may be public, the news is short-lived compared to news of a trial. And rarely is a defendant's background explored in the course of a plea bargain to the extent it may be done at trial.

Keeping others out of the case. Some defendants plead guilty to take the blame (sometimes called the "rap") for someone else, or to end the case quickly so that others who may be jointly responsible are not investigated.

Incentives for Judges and Prosecutors to Negotiate Plea Bargains

For a judge, the primary incentive for accepting a plea bargain is to move along a crowded calendar. Most judges simply don't have time to try every case that comes through the door. Additionally, because jails are overcrowded, judges may face the prospect of having to release convicted people before they complete their sentences. Judges often reason that using plea bargains to "process out" offenders who are not likely to do much jail time leads to fewer problems with overcrowding.

Prosecutors are also concerned about clogged calendars. Crowded calendars mean that the prosecutor's staff is overworked. Because plea bargains are much quicker and require less work than trials, they are also easier on the prosecutor's budget.

To learn more about plea bargains and everything else you need to know about criminal trials, get  The Criminal Law Handbook: Know Your Rights, Survive the System, by attorneys Paul Bergman and Sara J. Berman-Barrett (Nolo).


© 2011 Nolo

How Defendants' Mental States Affect Their Responsibility for a Crime


Criminal intent -- also called "mens rea" -- is an element of some, but not all, crimes.

What makes a crime a crime? In most cases, an act is a crime because the person committing it intended to do something that the state legislature or Congress has determined is wrong, also known as criminal intent. This mental state is generally referred to as "mens rea," Latin for "guilty mind."

The "mens rea" concept is based on a belief that people should be punished only when they have acted in a way that makes them morally blameworthy. In the legal system's eyes, people who intentionally engage in the behavior prohibited by a law are morally blameworthy.

Careless Behavior

"Ordinary" carelessness is not a crime. For example, careless ("negligent") drivers are not usually criminally prosecuted if they cause an accident, though they may have to pay civil damages to those harmed by their negligence.

However, more-than-ordinary carelessness ("recklessness" or "criminal negligence") can amount to mens rea. In general, carelessness can be a crime when a person "recklessly disregards a substantial and unjustifiable risk." It's up to judges and juries to evaluate a person's conduct according to community standards and decide whether the carelessness is serious enough to demonstrate mens rea.

Unintentional vs. Intentional Conduct

People who unintentionally engage in illegal conduct may be morally innocent; this is known as making a "mistake of fact." Someone who breaks the law because he or she honestly misperceives reality lacks mens rea and should not be charged with or convicted of a crime. For example, if Paul Smith hits Jonas Sack because he reasonably but mistakenly thought Sack was about to hit him, Smith would not have mens rea.

While a "mistake of fact" can negate mens rea, a "mistake of law" usually cannot. Even when people don't realize what they are doing is illegal, if they intentionally commit the act, they are almost always guilty. For example, if Jo sells cocaine believing that it is sugar, Jo has made a mistake of fact and lacks mens rea. However, if Jo sells cocaine in the honest but mistaken belief that it is legal to do so, Jo will have mens rea since she intentionally committed the act. Perhaps the best explanation for the difference is that if a "mistake of law" allowed people to escape punishment, the legal system would encourage people to remain ignorant of legal rules.

Crimes Requiring "Knowing" Engagement in Criminal Conduct

Some laws punish only violators who "knowingly" engage in illegal conduct. What a person has to "know" to be guilty of a crime depends on the behavior that a law makes illegal. For example:

  • A drug law makes it illegal for a person to "knowingly" import an illegal drug into the United States. To convict a defendant of this crime, the prosecution would have to prove that a defendant knew that what he brought into the United States was an illegal drug.
  • Another drug law makes it illegal to furnish drug paraphernalia with "knowledge" that it will be used to cultivate or ingest an illegal drug. To convict a defendant of this crime, the prosecution would have to prove that a defendant who sold or supplied drug paraphernalia knew about the improper purposes to which the paraphernalia would be put.

Crimes Requiring "Malicious" or "Willful" Behavior

In everyday usage people often use the term "malicious" to mean "spiteful" or "wicked." In most criminal statutes, however, "malicious" is synonymous with "intentional" and "knowing." As a result, the term "maliciously" usually adds nothing to the general mens rea requirement.

As used in murder statutes, however, the term "malice" is often interpreted as meaning the defendant had a "man-endangering" state of mind when the act was committed, which is enough to justify at least a second degree murder charge.

As with "maliciously," the term "willfully" usually adds nothing to the general mens rea requirement. At times, however, the term "willfully" in a statute has been interpreted to require the government to prove not only that a person acted intentionally, but also that the person intended to break the law. (This is an unusual instance in which "ignorance of the law" actually is an excuse!) For example, in one case a federal law made it illegal to willfully bring in to the country more than $10,000 in cash without declaring it to customs officials. The U.S. Supreme Court decided that to convict a person of violating this law, the government had to prove that the person knew the law's requirements. (Ratzlaf v. U.S., 510 U.S. 135 (1994).)

"Specific Intent" Crimes

"Specific intent" laws require the government to do more than show that a defendant acted "knowingly." Specific intent laws require the government to prove that a defendant had a particular purpose in mind when engaging in illegal conduct.

For example, many theft laws require the government to prove that a defendant took property "with the intent to permanently deprive a person of the property." To convict a defendant of theft, the government has to prove that a thief's plan was to forever part a victim from his or her property. For example, a culprit who drives off in another's car without permission and returns it a few hours later might be convicted only of "joyriding." However, the same culprit who drives off in another's car without permission and takes it across the country probably demonstrates a specific intent to permanently deprive the owner of the car and would be guilty of the more serious crime of car theft.

The Role of "Motive" in Criminal Law

"Motive" generally refers to the reason behind an illegal act. For example, a person's need to raise money quickly to pay off a bookie may be the motive for a robbery, while revenge for a personal affront may be the motive for a physical attack. Prosecutors often offer motive evidence as circumstantial evidence that a defendant acted intentionally or knowingly. Judges and jurors are more likely to believe that a defendant had mens rea if they know that the defendant had a motive to commit an illegal act. By the same token, defendants may offer evidence showing that they had no motive to commit a crime and then argue that the lack of a motive demonstrates reasonable doubt of guilt.

Crimes That Don't Require Mens Rea

Laws that don't require mens rea -- that is, laws that punish people who may be morally innocent -- are called "strict liability laws." The usual justification for a strict liability law is that the social benefits of stringent enforcement outweigh the harm of punishing a person who may be morally blameless. Examples of strict liability laws include:

  • "Statutory rape" laws, which in some states make it illegal to have sexual intercourse with a minor, even if the defendant honestly and reasonably believed that the sexual partner was old enough to consent legally to sexual intercourse.
  • "Sale of alcohol to minors" laws, which in many states punish store clerks who sell alcohol to minors even if the clerks reasonably believe that the minors are old enough to buy liquor.

Strict liability laws like these punish defendants who make honest mistakes and therefore may be morally innocent.


© 2011 Nolo

Defenses to Criminal Charges


Here are some of the common defenses that criminal defendants can raise to defend against criminal charges.

To convict a criminal defendant, the prosecutor must prove the defendant guilty beyond a reasonable doubt. As part of this process, the defendant is given an opportunity to present a defense. There are many types of defenses, from "I didn't do it" to "I did it, but I was too drunk to know what I was doing." Here are some of the most common defenses that criminal defendants can raise.

The Defendant Didn't Do It

Most often defendants try to avoid punishment by claiming they did not commit the act in question.

The Presumption of Innocence

All people accused of a crime are legally presumed to be innocent until they are convicted, either in a trial or as a result of pleading guilty. This presumption means not only that the prosecutor must convince the jury of the defendant's guilt, but also that the defendant need not say or do anything in his own defense. A defendant may simply remain silent, not present any witnesses, and argue that the prosecutor failed to prove his or her case. If the prosecutor can't convince the jury that the defendant is guilty, the defendant goes free.

Reasonable Doubt

The prosecutor must convince the judge or jury hearing the case that the defendant is guilty "beyond a reasonable doubt." This standard is very hard to meet. As a practical matter, the high burden of proof in criminal cases means that judges and jurors are supposed to resolve all doubts about the meaning of the evidence in favor of the defendant. With such a high standard imposed on the prosecutor, a defendant's most common defense is often to argue that there is in fact reasonable doubt.

The Alibi Defense

An alibi defense consists of evidence that a defendant was somewhere other than the scene of the crime at the time it was committed. For example, assume that Freddie is accused of committing a burglary on Elm Street at midnight on Friday, September 13. Freddie's alibi defense might consist of testimony that at the time of the burglary, Freddie was watching Casablanca at the Maple Street Cinema.

The Defendant Did It, But ...

Sometimes a defendant can avoid punishment even if the prosecutor shows that that the defendant did, without a doubt, commit the act in question.


Self-defense is a defense commonly asserted by someone charged with a crime of violence, such as battery (striking someone), assault with a deadly weapon, or murder. The defendant admits that he or she did in fact commit the crime, but claims that it was justified by the other person's threatening actions. The core issues in most self-defense cases are:

  • Who was the aggressor?
  • Was the defendant's belief that self-defense was necessary a reasonable one?
  • If so, was the force used by the defendant also reasonable?

Self-defense is rooted in the belief that people should be allowed to protect themselves from physical harm. This means that a person does not have to wait until he or she is actually struck to act in self-defense. If a reasonable person in the same circumstances would think that he or she is about to be physically attacked, that person has the right to strike first and prevent the attack. However, an act of self-defense cannot use more force than is reasonable -- someone who uses too much force may be guilty of a crime.

The Insanity Defense

The insanity defense is based on the principle that punishment is justified only if the defendant is capable of controlling his or her behavior and understanding that what he or she has done is wrong. Because some people suffering from a mental disorder are not capable of knowing or choosing right from wrong, the insanity defense prevents them from being criminally punished.

The insanity defense is an extremely complex topic; many scholarly works are devoted entirely to explaining its nuances. Here are some major points of interest:

  • Despite popular perceptions to the contrary, defendants rarely enter pleas of "not guilty by reason of insanity." When they do, judges and jurors rarely uphold it.
  • Various definitions of insanity are in use because neither the legal system nor psychiatrists can agree on a single meaning of insanity in the criminal law context. The most popular definition is the "McNaghten rule," which defines insanity as "the inability to distinguish right from wrong." Another common test is known as "irresistible impulse": a person may know that an act is wrong, but because of mental illness he or she cannot control his or her actions (this person is described as acting out of an "irresistible impulse").
  • Defendants found not guilty by reason of insanity are not automatically set free. They are usually confined to a mental institution until their sanity is established. These defendants can spend more time in a mental institution than they would have spent in prison had they been convicted.
  • An insanity defense normally rests on the testimony of a psychiatrist, who testifies  after examining the defendant, his or her history, and the facts of the case. Courts appoint psychiatrists at government expense to assist poor defendants who cannot afford to hire their own psychiatrists.
  • Once a defendant raises his or her sanity as a defense, he or she must submit to psychological tests conducted at the behest of the prosecution. This can be a very painful and humiliating experience, one that many defendants choose to forgo rather than rely on the insanity defense.

Under the Influence

Defendants who commit crimes under the influence of drugs or alcohol sometimes argue that their mental functioning was so impaired that they cannot be held accountable for their actions. Generally, however, voluntary intoxication does not excuse criminal conduct. Defendants know (or should know) that alcohol and drugs affect mental functioning, and thus they should be held legally responsible if they commit crimes as a result of their voluntary use.

Some states allow an exception to this general rule. If the defendant is accused of committing a crime that requires " specific intent" (intending the precise consequences, as well as intending to do the physical act that leads up to the consequences), the defendant can argue that he was too drunk or high to have formed that intent. This is only a partial defense, however, because it doesn't entirely excuse the defendant's actions. In this situation, the defendant will usually be convicted of another crime that doesn't require proof of a specific intent. For example, a defendant may be prosecuted for the crime of assault with specific intent to kill but only convicted of assault with a deadly weapon, which doesn't require specific intent.


Entrapment occurs when the government induces a person to commit a crime and then tries to punish the person for committing it. However, if a judge or jury believes that a suspect was predisposed to commit the crime anyway, the suspect may be found guilty even if a government agent suggested the crime and helped the defendant to commit it. Entrapment defenses are therefore especially difficult for defendants with prior convictions for the same type of crime.

To learn more about criminal defenses and all other aspects of a criminal trial, get  The Criminal Law Handbook: Know Your Rights, Survive the System, by Paul Bergman and Sara J. Berman-Barrett (Nolo).


© 2011 Nolo

Police Stops: What to Do If You Are Pulled Over


If you are pulled over by the police, learn what to say and when vehicle searches are legal.

If you are pulled over by the police, you will be in a much better position to challenge your ticket in court if you take a few simple steps.  Here are some suggestions.

1. When You See the Police Car

If a police car is following you with its siren blaring or emergency lights flashing, pull over to the right safely and quickly. Pull over in a way that will be most likely to calm down an angry or annoyed traffic officer. Use your turn signal to indicate any lane changes from left to right, and slow down fairly quickly, but not so quickly that the officer will have to brake to avoid hitting you. Pull over as far to the right as possible so that, when the officer comes up to your widow, he or she won't have to worry about being clipped by vehicles in the right lane.

By stopping as soon as you can, you'll have a better chance of figuring out exactly where the officer says you committed a violation. You may want to return to that area later to make sure the officer was telling the truth about how he or she judged your speed, saw your turn, or witnessed any other violation.

2. Right After You Stop

After you've pulled over to a safe spot, you might want to show the officer a few other token courtesies. At this point, you have little to lose and perhaps something to gain.

First off, roll down your window all the way. You may also want to turn off the engine, place your hands on the steering wheel, and, if it's dark, turn on your interior light. This will tend to allay any fears the officer may have. (After all, police officers are killed every day in such "ordinary" traffic-stop situations, and the officer's approach to the vehicle is the potentially most dangerous.)

Don't start rummaging through your back pocket for your wallet and license, or in your glove compartment for your registration, until the officer asks you for them. For all the officer knows, you could be reaching for a gun.

warning If you are at all concerned that the person who stopped you is not actually a police officer (for example, if the car that pulled you over is unmarked), you should ask to see the officer's photo identification along with his badge. If you still have doubts, you can ask that the officer to call a supervisor to the scene or you can request that you be allowed to follow the officer to a police station.

3. Avoid Giving the Officer an Excuse to Search

A police officer is normally not allowed to search your vehicle. However, there are several exceptions to this. An officer who observes you trying to either hide something under the seat or throw something out the window may legally search your car. Once cops are on your rear bumper with his spotlight silhouetting your every move, they're watching for any sort of furtive movement. A sudden lowering of one or both shoulders will tip them off that you're attempting to hide something under the seat.

If the officer has a reasonable suspicion you are armed and dangerous, he or she can frisk you (pat you down). Similarly, if the officer reasonably suspects that you are involved in criminal activity he or she can also perform a pat down, and if police officers have probable cause -- a reasonable basis or justification to believe that you or your passengers are involved in criminal activity -- they can search your car and objects belonging to passengers.

Even if the officer doesn't have reasonable suspicion or probable cause, once you are stopped, a police officer may seize any illegal objects in your car that are in "plain view." Once they see the object, such as open beer or wine bottles or drug paraphernalia, they can open the car door to reach in and get it. After that, they may come across other objects that are in plain view and shouldn't be in your car, and they can seize these, too.

Lastly, your car may also be searched if you or any occupant is arrested. Also, if you're arrested and your car is towed, the police may make an "inventory search" afterward, even if they have no reason to suspect there is anything illegal inside.

4. Should You Get Out of Your Car?

An officer who stops you for an alleged traffic violation has the right to insist that you and your passengers get out of your car. You should do so if asked. Also, getting out of your car may make it easier for you to check road conditions, the weather, and the place the violation supposedly occurred.

However, many police officers prefer that you stay in your car and will tell you to stay there if you start to get out. If this happens, obviously you should cooperate. If you get out of the car against the officer's orders, don't be surprised to see a gun pointing at you. Cops are trained to expect the worst. When you get out of your car, they may assume you're about to pull a weapon or attempt to flee.

If an officer has any reason to believe that you might be dangerous, he or she has a right to conduct a quick "pat-down" search of your outer clothing while standing next to you, to make sure you don't have a concealed knife or gun. If the officer feels any weapon-sized object during the pat-down search, he or she can reach in and get it. Also, the officer's good faith belief that you may be dangerous justifies a search of the passenger compartment of your car for weapons.

5. Talking to the Officer

Many people stopped by an officer make the mistake of saying the wrong thing to him or her and failing to say the right things, and a case can be won or lost depending on what you say -- or don't say -- to the officer.

Don't speak first. Especially don't start off with a defensive or hostile "What's the problem?" or similar words. Let the officer start talking. He or she will probably ask to see your license and vehicle registration. Many people make the mistake of insisting the officer tell them why they were stopped before they'll comply. Don't make that mistake. Reply "okay" or "sure," then hand over the documents.

One of the first things traffic cops learn in the police academy is to decide, before leaving their vehicle, whether they're going to give a ticket or just a warning. They may act as though they still haven't made up their minds and are going to let you off only if you'll cooperate. Don't fall for this. The hesitating officer may be trying to appear open-minded in order to extract admissions out of you, to use them against you in court if necessary. The strategy is to try to get you to admit either that you committed a violation or that you were so careless, inattentive, or negligent that you don't know whether you did or not.

The officer might start by asking you the sort of question whose lack of a definite answer would imply guilt, like, "Do you know why I stopped you?" Or, he or she might ask, "Do you know how fast you were going?" Your answers, if any, should be non-committal and brief, like a simple "No" to the first question or a very confident, "Yes, I do," to the second. If the officer then tells you how fast he or she thinks you were going or what he or she thinks you did, don't argue. Give a noncommittal answer, like, "I see," or no answer at all. Silence is not an admission of guilt and cannot be used against you in court.


© 2011 Nolo

Drunk Driving, DUI, and DWI FAQ

Charged with drunk driving, driving under the influence, or driving while intoxicated, DUI, or DWI?

What's Below:

How drunk or high does someone have to be before he can be convicted of driving under the influence (DUI) or driving while intoxicated (DWI)?

How can the police find out whether a driver is under the influence or intoxicated?

Do I have to take a breathalyzer, blood test, or urine test if I am stopped for DUI or DWI?

If I'm stopping for driving under the influence, am I entitled to talk to an attorney before I decide whether to take a breath, blood, or urine test?

If I'm stopped for driving under the influence (DUI) or driving while intoxicated (DWI), can a police officer ask me questions without reading me my rights?

I've been charged with drunk driving/driving under the influence/driving while intoxicated. Should I get a lawyer?

I was pulled over at a DUI/DWI roadblock and asked to wait and answer a police officer's questions. Is this legal?

How drunk or high does someone have to be before he can be convicted of driving under the influence (DUI) or driving while intoxicated (DWI)?


It's illegal to drive a car while "impaired" by the effects of alcohol or drugs (including prescription drugs). This means that there must be enough alcohol or drugs in the driver's body to prevent him from thinking clearly or driving safely. Many people reach this level well before they'd be considered "drunk" or "stoned." In all states, an adult who has a blood alcohol content (BAC) level of .08% or above is guilty of a DUI (driving under the influence) or DWI (driving while intoxicated).

However, almost all states consider drivers under the age of 21 to be driving under the influence of alcohol if their BAC is at or greater than .01% or .02%, depending on the state.

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How can the police find out whether a driver is under the influence or intoxicated?


Police typically use three methods of determining whether a driver has had too much to drink to be driving (intoxicated), or is under the influence of drugs:

  • Observation. A police officer will pull you over if he notices that you are driving erratically -- swerving, speeding, failing to stop, or even driving too slowly. Of course, you may have a good explanation for your driving (tiredness, for example), but an officer is unlikely to buy your story if he smells alcohol on your breath, or notices slurred words or unsteady movements.
  • Sobriety tests. If an officer suspects that you are under the influence, he will probably ask you to get out of the car and perform a series of balance and speech tests, such as standing on one leg, walking a straight line heel-to-toe, or reciting a line of letters or numbers. The officer will look closely at your eyes, checking for pupil enlargement or constriction, which can be evidence of intoxication, and will judge your ability to follow exact instructions. If you fail these tests, the officer may arrest you or ask you to take a chemical test.
  • Blood-alcohol level. The amount of alcohol in your body is understood by measuring the amount of alcohol in your blood. This measurement can be taken directly by drawing a sample of your blood, or it can be calculated by applying a mathematical formula to the amount of alcohol in your breath or urine. Some states give you a choice of whether to take a breath, blood, or urine test -- others do not. If you test at or above .08 % blood-alcohol concentration, you are presumed to be driving under the influence, unless you can convince a judge or jury that your judgment was not impaired and you were not driving dangerously. Defense attorneys often question the validity of the conversion formula when driver's alcohol levels are based on breath or urine tests.

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Do I have to take a breathalyzer, blood test, or urine test if I am stopped for DUI or DWI?


You may refuse to take a chemical test (breathalyzer, blood test, or urine test) during a DUI or DWI stop, but almost every state has a so-called "implied consent" law that says a refusal can result in suspension of your driver's license from anywhere between three to 12 months. (This is true even if you're eventually found not guilty of the drunk driving/driving under the influence/driving while intoxicated charge.) Further, if your drunk driving case goes to trial, the prosecutor can tell the jury that you wouldn't take the test, which may lead the jury members to conclude that you refused because you were, in fact, intoxicated or under the influence of drugs.

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If I'm stopping for driving under the influence, am I entitled to talk to an attorney before I decide whether to take a breath, blood, or urine test?


The answer depends on where you live. In California, for example, you don't have the right to speak with an attorney first before you decide whether to take a breath, blood, or urine test. But some states, including Arizona, allow you to talk to your lawyer before you take a chemical test.

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If I'm stopped for driving under the influence (DUI) or driving while intoxicated (DWI), can a police officer ask me questions without reading me my rights?


Sometimes. Whether a police officer has to read you your rights on a DUI or DWI stop depends on whether or not you are in police custody -- that is, whether you are subject to the restraints common to a formal arrest. The U.S. Supreme Court has ruled that the police do not have to provide Miranda warnings during roadside questioning of a motorist detained pursuant to a traffic stop. Thus, roadside questioning about your drinking, drug-taking, or performance on field sobriety tests does not constitute "custodial interrogation." However, once you are arrested -- or restrained by the police in a manner consistent with arrest -- you must be read your Miranda rights.

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I've been charged with drunk driving/driving under the influence/driving while intoxicated. Should I get a lawyer?


Defending against a charge of drunk driving is a tricky business. Defenders need to understand scientific and medical concepts, and must be able to question tough witnesses, including scientists and police officers. If you want to fight your drunk driving/driving under the influence/driving while intoxicated charge, you're well advised to hire an attorney who specializes in these types of cases.

These days it is hard to "win" a drunk driving case, assuming the police gathered some physical evidence against you (results of a breathalyzer, blood test, or urine test). And the punishments for DUI are pretty standard. If you were truly guilty, there's no guarantee that a lawyer could get you a better deal or plea bargain than you can get for yourself.

However, if the police don't have physical evidence against you (for example, you refused the chemical test), a good lawyer may be able to plea your case down to a "wet reckless" (alcohol-related reckless driving). While a wet reckless may not sound as bad as a DUI or DWI, it often carries almost the same fines and penalties as a DUI or DWI.

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I was pulled over at a DUI/DWI roadblock and asked to wait and answer a police officer's questions. Is this legal?


Yes, as long as the police use a neutral policy when stopping cars (such as stopping all cars or stopping every third car) and they minimize any inconvenience to you and the other drivers. The police can't single out your car at a roadblock unless they have good reason to believe that you've broken the law, such as by driving under the influence of alcohol or drugs (DUI) or driving while intoxicated (DWI).

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