Depending on the laws of your state, a person is generally considered to be legally intoxicated if they have a blood alcohol content (“BAC”) of 0.08% or 0.10%. When a person chooses to operate a motor vehicle after drinking alcohol or taking drugs that impair their senses, it is known as drunk driving.

This can result in many different legal ramifications, such as getting:

  • Ticketed;
  • Criminally fined;
  • Arrested; and/or
  • Charged for driving while intoxicated (“DWI”), or the more commonly known term, driving under the influence (“DUI”).

While a person who has been charged with drunk driving generally receives a misdemeanor for their first offense, they can still be charged with a felony if they have injured another person or caused damage to property. They may also face felony charges if it was not their first drunk driving offense.

It is important to note that while most states will charge a drunk driver with a DUI, every state has their own set of criteria for what is considered to be a drunk driving offense, as well as different varieties of the potential charges that may apply. Regardless, drunk driving is more than a mere traffic citation; it is considered to be a criminal offense. As such, if you are convicted of a drunk driving offense, it will appear on your criminal record.

When a police officer suspects that a person is driving drunk, they will have probable cause to pull that person over. Examples include when they see that a person is speeding or swerving all over the road, and if they observe alcohol or drug paraphernalia in the vehicle.

After a driver is pulled over, the police officer will likely request that they step out of the vehicle and in order to take one of the following tests. These tests are used to determine whether they are sober:

  • Breathalyzer: A handheld device that measures the concentration of alcohol in a person’s system by having them blow into it. It can be administered either at the scene where the vehicle was pulled over, or at a police station;
  • Blood or Urine Testing: These tests require a medical professional to do the testing and produce lab results. Additionally, the police will need to first obtain a warrant before conducting these tests. As such, these tests are not generally administered at the scene; or
  • Field Sobriety Tests: These are commonly given at the scene and include a variety of different activities that are designed to test a person’s balance and agility. Examples include touching a finger to your nose, reciting the alphabet, or standing on one foot while counting.

If the driver fails any of these tests, the officer will have grounds to ticket and arrest them for drunk driving. If the driver refuses to perform any of the tests that can be administered at the scene, the officer can still arrest them if they suspect that they have been driving drunk. The smell of alcohol on a person’s breath or from open containers in the car, even if they are empty, can be used as evidence that an officer may rely on to arrest them for drunk driving.

What Constitutes A DUI Arrest?

While DUI laws vary from state to state, most states will require the following elements to be present in order for a DUI to apply:

  1. The driver is operating a vehicle; and
  2. The driver is intoxicated.

A DUI arrest generally occurs after the officer has stopped the driver for a traffic violation, and the officer has probable cause to believe that the driver is under the influence of alcohol or drugs. Or, they are otherwise too impaired to drive a motor vehicle safely. After the stop has been made and the officer has conducted a field sobriety test, the criminal process for a DUI case begins once the officer has placed the driver under arrest.

An officer that has stopped a vehicle for a traffic violation may place the driver under arrest for a DUI in the following circumstances:

  • Police Officer Has Probable Cause: If the officer personally sees or believes that the driver has committed a crime, the officer may lawfully arrest that person. An example of this would be how if the police officer believes that the driver is driving under the influence because the driver smells like alcohol, or if the officer notices empty beer bottles in their vehicle, the officer may arrest the driver based on probable cause that the driver has been driving under the influence;
  • Police Officer Made a Lawful Traffic Stop: The officer had probable cause to believe that the driver was under the influence; however, the officer must show that they did not stop the vehicle randomly, or for no reason. There must also be proof that the driver did something in violation of a traffic law, which led to the traffic stop; or
  • Police Officer Has an Arrest Warrant: The officer can place the driver under arrest after the traffic stop when the officer has a valid arrest warrant. This must be issued by a judge or magistrate.

To reiterate, some states require field sobriety tests. Passing the tests will likely mean the person can safely drive away without any further difficulty. However, these tests are highly subjective, and it is possible for someone who has not been drinking to still fail such a test.

A person who has not been drinking, but has been instructed by a police officer that they have not adequately passed a field sobriety test, should still comply with the officer’s demands. In general, a police officer will take the person into custody and will have them booked.

Now that many states have legalized cannabis, it is possible to be charged with a DUI if you smoke or consume cannabis and drive. It is also possible to be charged with a DUI if you have taken strong prescription drugs which impair your ability to drive. It is important to remember that any substance that can alter your ability to drive, whether obtained legally or illegally, can result in a DUI. It is not limited to alcohol.

What Happens After A Drunk Driving Arrest?

After a person is arrested for drunk driving, they will be assigned a court date. There are some defenses that may be available to use against the charges, such as:

  • The person being arrested was not the driver of the vehicle;
  • There was no probable cause to pull them over;
  • The test itself or the results were unreliable or inaccurate; and/or
  • There was insufficient evidence to make an arrest.

To reiterate, the requirements for a DUI offense varies widely from state to state. Some states allow police to arrest a person who is drunk, even when their car is in park. An example of this would be how in some states, if the police find a car parked on the side of the road with a drunk person behind the wheel and their keys are in the ignition, but the car is not turned on, they may still charge them with a DUI.

There are a number of other factors that will determine whether the defendant can be convicted of a DUI, or if the charges will be dismissed. Some of these factors include:

  • The location of the person who is intoxicated, such as whether they are in the driver’s seat or passenger’s seat;
  • Whether the person is asleep or awake;
  • The location of the car keys, such as in the ignition, on the floor, in the person’s pocket, etc); and
  • Where the car is parked, such as in a parking lot, driveway, or on the side of the road.

Do I Need A Lawyer For Help With DUIs And Police Officer Conduct?

If you have been arrested, you should contact a local DUI/DWI lawyer. Your attorney can help you understand your state’s specific laws and how those laws will affect your legal rights and options.

They will also determine whether there are any legal defenses available to you based on the specifics of your case. Finally, an experienced attorney will also be able to represent you in court, as needed, throughout the process.