DRIVING UNDER THE INFLUENCE (DUI) DEFENSE

Although a DUI is a misdemeanor traffic offense, it merits serious attention and diligent representation due to the large number of arrests and the complexity of prosecuting a DUI charge.  A person may be convicted of DUI if they are in actual or physical control of a vehicle while their normal faculties are impaired or while having a breath or blood alcohol level of .08 % or above.  According to the wording in the statute, a person may be convicted of DUI even if they are not driving.  Merely being in “actual or physical control” of a vehicle is enough to sustain a conviction.  Accordingly, you can still be charged with DUI even if you are not driving.  Another area that is often overlooked is that alcohol is not the only substance that can impair you.  Under the statute you may be impaired if you are under the influence of alcohol, chemical or controlled substance.  Therefore, you may be convicted if you are driving under the influence of any narcotic or other prohibited substance.

The penalties for a first conviction are overwhelming and include a hefty fine, alcohol dependency course, alcohol evaluation and treatment, community service hours, probation, driver’s license suspension, ignition interlock device and possibly jail time.  For a second or subsequent conviction, the penalties become increasingly harsher, eventually becoming a felony if the third degree if the DUI conviction occurred within 10 years of a last conviction or it is the fourth DUI conviction regardless of time.  Similarly, if while driving under the influence an accident occurs in which a person sustains injury or death, the penalties are increased and prosecutors usually seek prison time.  Below are some of the common penalties for individuals convicted of DUI.

Fines:

• First Conviction: Not less than $500, or more than $1,000. With Blood/Breath Alcohol Level (BAL) of .15 or higher or minor in the vehicle: Not less than $1,000, or more than $2,000.

• Second Conviction: Not less than $1,000, or more than $2,000. With BAL of .15 or higher or minor in the vehicle: Not less than $2,000, or more than $4,000.

• Third Conviction More than 10 years from second: Not less than $2,000, or more than $5,000. With BAL of .15 or higher or minor in the vehicle: Not less than $4,000.

• Fourth or Subsequent Conviction: Not less than $2,000.

Imprisonment:

At court's discretion, sentencing terms may be served in a residential alcoholism or drug abuse treatment program, credited toward term of imprisonment.

• First Conviction: Not more than 6 months. With BAL of .15 or higher or minor in the vehicle: Not more than 9 months.

• Second Conviction: Not more than 9 months. With BAL of .15 or higher or minor in the vehicle: Not more than 12 months. If second conviction within 5 years, mandatory imprisonment of at least 10 days.

• Third Conviction: If third conviction within 10 years, mandatory imprisonment of at least 30 days. If third conviction more than 10 years, imprisonment for not more than 12 months, but no mandatory jail sentence.

• Fourth or Subsequent Conviction: Not more than 5 years, but no mandatory jail sentence.

Impoundment or Immobilization of Vehicle:

Unless the family of the defendant has no other transportation:

• First Conviction: 10 days;

• Second Conviction within 5 years: 30 days;

• Third Conviction within 10 years: 90 days.

Impoundment or immobilization must not occur concurrently with incarceration.

DUI Felony Conviction:

• Any person convicted of a third DUI within 10 years or a fourth or subsequent DUI commits a Third Degree Felony, punishable by not more than $5,000 fine and/or 5 years imprisonment.

• Any person who causes serious bodily injury while driving under the influence is guilty of a Third Degree Felony, punishable by not more than $5,000 fine and/or 5 years imprisonment.

Manslaughter and Vehicular Homicide:

• DUI/Manslaughter: Second Degree Felony, punishable by not more than $10,000 fine and/or 15 years imprisonment.

• DUI Manslaughter/Leaving the Scene: A driver convicted of DUI Manslaughter who knew/should have known accident occurred; and failed to give information or render aid is guilty of a First Degree Felony, punishable by not more than $10,000 fine and/or 30 years imprisonment.

Driver License Suspension Periods:

• First Conviction: Minimum 180 days suspension or 1 year if refusal or 18 months if second subsequent refusal.

• Second Conviction Within 5 Years: Minimum 5 year suspension. May be eligible for hardship license after 1 year. Other second offenders same as first conviction.

• Third Conviction Within 10 Years of the second conviction: Minimum 10 year suspension. May be eligible for a hardship license after two years.

• Fourth Conviction: Mandatory permanent suspension. No hardship license.

• DUI Manslaughter: Mandatory permanent suspension. If no prior DUI related convictions, may be eligible for hardship license after 5 years.

• Manslaughter, DUI Serious Bodily Injury, or Vehicular Homicide Convictions: Minimum 3 year suspension.

Hardship License:

• First Conviction: Must complete DUI School; apply to department for hearing for possible hardship license. Mandatory ignition interlock device for up to six months for level of .15 or higher.

• Second Convictions (or more): No hardship license except as provided below. Mandatory ignition interlock device for one year, or for two years if level is greater than .20.

• Second Conviction Within 5 Years: (5-Year suspension) May apply for hardship reinstatement hearing after one year. Must complete DUI School and remain in the DUI supervision program for the remainder of the suspension period. Applicant may not have consumed any alcoholic beverage or controlled substance or driven a motor vehicle for 12 months prior to reinstatement. Mandatory ignition interlock device for one year or for two years if BAL is greater than .15.

• Third Conviction Within 10 Years: (10-Year Suspension) May apply for hardship reinstatement hearing after two years. Must complete DUI School and remain in the DUI supervision program for the remainder of the revocation period. Applicant may not have consumed any alcoholic beverage or controlled substance or driven a motor vehicle for 12 months prior to reinstatement.  Mandatory ignition interlock device for two years.

• DUI Manslaughter With No Prior DUI Related Conviction: (Permanent Suspension): May be eligible for hardship reinstatement after 5 years have expired from date of suspension or expired from date of term of incarceration provided the following requirements have been met:

1. Has not been arrested for a drug-related offense for at least 5 years prior to the hearing;

2. Has not driven a motor vehicle without a license for at least 5 years prior to the hearing;

3. Has been alcohol and drug-free for at least 5 years prior to the hearing;

4. Must complete a DUI school and must be supervised under the DUI program for the remainder of the suspension period; and

5. Ignition interlock device required for two years.

• Manslaughter, DUI Serious Bodily Injury, or Vehicular Homicide Convictions: (3 Year suspension): May immediately apply for hardship reinstatement hearing. Must complete DUI School.

As a former DUI prosecutor, Erick Cruz developed a keen understanding of the techniques and procedures used by the prosecutors and police to prosecute you.  Erick Cruz will put this knowledge to work for you in defense of your DUI case. 

Call Erick to discuss your case with him and find out how to get your DUI case dismissed or charges and sentence reduced and arrest record sealed or expunged.

CALL FOR MORE INFORMATION

(305) 444-3844