DUI Attorney: Your First DUI

DUI Attorney
DUI Attorney

The point of needing a DUI Attorney usually starts something like this:

It’s 2:00 a.m. You are returning home from the bar, a friend’s house, or a party. Now blue lights are flashing in your rearview mirror. You’ve been drinking, and now you are unsure as to what’s going to happen.

An officer approaches your vehicle and asks you if you know why you were pulled over. What you say is, “maybe I was going a little too fast.” Or “I might have forgotten to signal.” What you are thinking is, “I wonder if he can smell the alcohol on my breath.” “I hope I’m not slurring my speech.” “I hope he doesn’t suspect I’ve been drinking.” The officer asks you if you’ve been drinking tonight. You might say “no officer, I haven’t.” Or you might say “yes, but only a couple.”

Keep in mind that you are not legally required to answer any of the officer’s questions. You have a right to remain silent, and exercising that right cannot be used against you, as long as you affirmatively assert the right. In other words, you must say, “I am going to exercise my right to remain silent.”  At that point, the officer can only speak to you if your DUI Attorney is present.

Field Sobriety Tests

The officer instructs you to step out of your vehicle. He suspects that you are under the influence of alcohol. He tells you he is going to administer the standardized field sobriety tests. You tell him you want your DUI attorney present. He tells you that you don’t get to have your DUI attorney present. Unfortunately, at this stage, you do not have a right to have your DUI attorney present.

Horizontal Gazy Nystagmus

First, he conducts the horizontal gaze nystagmus test. He holds a pen up at eye level and instructs you to follow the tip of the pen. What you don’t know is that effort on your part will not help you pass this test. He is looking for vibration in your pupil when the maximum deviation of the pupil is offset at 45 degrees. If you are under the influence of alcohol, he will see the nystagmus. Of course, you don’t know any of this, and you concentrate as hard as you can on keeping your eye on that pen and try your best to track smoothly. You complete the first test, you feel pretty good about your performance. You are sure you kept your eye on that pen the entire time.

Walk and Turn

The Instructions

It’s not all about balance

Second, he administers the “walk-and-turn” test. He gives you instructions before you begin the test. What you don’t realize is the importance of listening to the instructions very carefully. You think that he is testing your balance. As long as you walk the line like a tightrope and don’t fall off, you think you will pass the test. As the officer gives you the instructions, you stand there impatiently. You are thinking to yourself “hurry up already so I can show you how good my balance is.”

Follow the directions

He tells you to put your left foot on the line. To put your right foot in front of your left foot with your right heel touching your left toe. And to keep your hands at your side. The officer demonstrates each instruction to you. He tells you not to start until he says to begin. He asks if you understand his directions. Then he explains to you that when he tells you to proceed, he wants you to take nine heel-to-toe steps on the line. He says that when you take the ninth step, you need to keep the front foot on the line and turn around by taking several small steps with your other foot and walk back nine heel-to-toe steps on the line.

The entire time he is speaking to you all you can do is impatiently think to yourself, “please hurry it along, I can do this, I’m ready.” Finally, he tells you to watch your feet the entire time. Keep your arms at your side. And count your steps out loud. Then, at last, he tells you that once you begin, not to stop until you have completed the test.

The Attempt

These instructions are a lot to take in, even for a sober person, but you’re not worried. You are just glad he has stopped droning on and on about how to walk down a straight line. Confidence wells up inside you. Walking a line without falling off is no problem, so you begin the test.

You hurry along the line, making sure your heel strikes your toe each time. You are careful not to step off the line. There are a couple of close calls where you begin to sway one way, but you pull it off.

You feel good about yourself. So much so, that you do a sort of ballerina spin on one foot at the end of the line. You hope that this spin impressed the officer enough that he will see you are not drunk. What you don’t know is that, despite staying on the line, you have utterly failed the test by not following his exact instructions.

One Leg Stand

The officer gives you the final test, “the one leg stand.” He has you stand with your heels together and your arms at your sides. And tells you not to begin the test until he instructs you to.

Before you begin, he will tell you to raise one leg six inches off the ground with your foot pointing out. He instructs you to keep both legs straight, with your eyes on the raised foot. The officer also tells you to hold this position while counting out loud “one-one thousand, two-one thousand,” and so on until he tells you to stop. He asks you if you understand the instructions, and then tells you to begin.

You felt good on the last test, but now the sweat is beading up on your forehead as you try to make it through this final test. You think to yourself that if you can perform as well on this test as you did on the last one, you might get to go home tonight. The officer tells you to begin, and you raise your leg. You immediately start to feel your body sway, so you lift your arms for balance. This does the trick. It helps keep you from falling over. Your foot came down for a second to regain balance, but it was only briefly.

The Breath Test

The officer then says the words that you had been so hoping to avoid hearing, “put your hands behind your back; you are under arrest for suspicion of driving under the influence.” He doesn’t even read you your rights! Where is a DUI Attorney when you need one? You are then escorted to his police cruiser and seated in the back.

An audio recording of your rights plays to you over the cruiser’s radio. The officer asks you to submit to a breath test for alcohol concentration. It tells you that if you refuse to take the test, the State will suspend your license for 365 days absolute as a consequence. If you fail the test, then your license will be suspended for 90 days, with 30 of those days being absolute. If you are excessively intoxicated, most of this will hardly make much sense to you.

Submit or Refuse

The recording finishes and the officer asks you if you will be submitting to the breath test. He lets you know that if you pass the breath test, he will release you. Most people agree to the test, and you are no exception. You are again told that for this stage, you do not have a right to have your DUI Attorney present. Unfortunately, you do not have that right. You only have a right to a DUI Attorney if you are being questioned by law enforcement while in custody.

It’s worth noting that for most first time DUI cases, it makes sense to blow, despite what your drinking buddies might tell you. If you decide not to do so, the State will suspend your driver’s license for 365 days, and you cannot get a work permit for any of those days. This suspension is much more severe than the typical 180-day driver’s license suspension the court imposes for a first time DUI, where you can get a work permit for all but 30 of those days. Additionally, the officer will probably take you down to the station and get a warrant to draw your blood, so the State gets their evidence for the DUI, and you lose your license. It’s a lose-lose situation in most instances.

The Blow

The officer watches you for 15 minutes, to make sure that you don’t burp, belch or vomit. He places the tube of the breath testing machine to your lips. He instructs you to blow deep and to keep blowing until he tells you to stop.

You are nervous, and short of breath because your heart is racing. You exhale as he told you to, but you couldn’t blow hard enough, and the result comes back insufficient. He sternly reprimands you, saying you that you must blow harder and longer. This time you muster enough breath to register. The officer does not tell you what the result is though, only to do it again. You do it a third time, and the officer informs you that your last two samples were over the legal limit.

The Arrest

At this point, you feel defeated and deflated. So many thoughts are running through your head. How long will I be in jail? What if my boss finds out? Will I lose my job? Are they going to plaster my mugshot on the internet? Is this going to be in the news? What’s going to happen to me? You quietly sit as they cart you off to the county jail with all these thoughts and more racing through your mind.

When you arrive at the jail, they place you in a holding cell, while you wait for them to process you. You are there for what seems an eternity while you wait for the jail staff to book you. When they finally call you up, they take you into booking, where they fingerprint you, take your photograph, and document your personal information.

Bonding Out

They tell you what your bail amount is. This information relieves you. Finally, at least some good news. You won’t be spending the entire night in jail since you can bond out. They explain to you that if you pay the whole bond amount yourself, that you will receive that money back as long as you go to all of your court dates. You can also go through a bondsman, who will take a lesser amount, and the bondsman will put up the remainder. You will not get any of that money back if you go that route. The bond on your charge is only $500, so you choose to pay the entire amount.

The DUI Attorney

The next day you wake up, and the worry and stress begin to set in again. What now? You look through the paperwork they handed you, and none of it makes sense. There are multiple dates and deadlines, and you do not know what any of it means. You are stressed out and afraid. So you begin calling for a DUI attorney. You do not know who to call. You do google searches, you read reviews, you ask friends, but it all overwhelms you. How do you know who to trust? Your friends have told you so many horror stories about scum bag attorneys.

So you call around, and you set up appointments. You realize that many DUI attorneys will offer free consultations. That makes you feel a little better because at least you can meet with several lawyers, and get a better idea of whom you like the best. You set up three or four appointments, and visit with the attorneys. You find one that fits you. The lawyer is transparent and honest, and you can tell that he is going to work hard for you. He gives you an outline of what to expect in the coming days of your case. The lawyer also gives you predictions on what is probably going to happen with your situation, best case and worst case scenarios, and how to make the best case scenario more likely.  If you have any possible defenses to the charge, he will also discuss that with you.

Court

Your DUI attorney explains to you that because this is a DUI case, you have two cases. A DUI case, which is a criminal charge, and a license suspension, which is an administrative case through the department of transportation.

The license suspension requires a response within seven days of the DUI stop. If you do not file an appeal of the driver’s license suspension within the deadline, your suspension will go into effect 30 days after your arrest.

You are also given a date to appear before the court to enter a plea or guilty, or not guilty, to the DUI charge. If you fail to show up at this hearing, a warrant will be put out for your arrest. However, your attorney will likely file a not guilty plea for you on your behalf, and the court will vacate the hearing. The court will then set the matter for a ‘pretrial conference.’

Pretrial

You learn that the ‘pretrial conference‘ is a hearing in court before the jury trial. Before the pretrial conference, your DUI attorney requests the ‘discovery‘ in the case. Discovery consists of the police reports, dash cam video, body cam video, test results, expert witness disclosures, witness statements, basically all the evidence the State wants to use to prove their case at trial. Once your attorney receives the discovery, he files legal motions in the case, and he begins negotiations with the prosecutor in an attempt to settle your case through a plea agreement.

Your DUI attorney negotiates a reasonable settlement for you before the trial. You learn that it is an uncommon occurrence for a DUI case to go to trial unless there is some legitimate question about whether the defendant was operating the vehicle, or whether the defendant was under the influence of alcohol. Sometimes motions come up before trial, that may result in the case getting dismissed, for example, a motion to suppress evidence for an unlawful stop of the vehicle may result in the complete dismissal of the charge.

Sentencing

When you settle the case, the prosecutor promises to make a particular sentencing recommendation in exchange for a guilty plea to the charge. Your DUI attorney explains to you that, just because the prosecutor promises to recommend a specific sentence does not mean that you are guaranteed to get that sentence. The judge makes the final decision, and the court makes that decision at a sentencing hearing.  The court could sentence you to the maximum penalties for a first time DUI if they wanted to.

A sentencing hearing is a hearing held after you enter a guilty plea. It is at this hearing that the judge decides what sentence to impose. The judge will consider mitigating and aggravating factors. Your attorney presents mitigating factors to the judge to try to convince the judge to give you a more favorable sentence.

Jail Time

The judge imposes some jail time, but to your relief, he grants you options on serving that jail time. Options include community service, sheriff’s inmate labor detail, work release, and other options. This means you may not have to go to jail after all, even if the judge imposes a jail sentence.

Probation

DUI cases also usually have a probationary period imposed. Probation can be either supervised or unsupervised. Supervised probation means you have a probation officer, with monthly supervision fees, and monthly meetings, and random drug and alcohol tests. Unsupervised probation means you have no probation officer.  Ask your DUI Attorney about whether you are likely to get supervised or unsupervised probation in your case.  Your DUI Attorney may be able to help you do things before your court date to make it more likely that the judge will grant you unsupervised probation.

Treatment

DUI cases have mandatory alcohol evaluations. The court at sentencing orders you to comply with this evaluation. The court requires you to do these evaluations before the hearing. Your DUI attorney had told you that it was in your best interest to get this evaluation done as early as possible and try to at least get started on the treatment before your first court date. Fortunately, you followed your attorney’s advice and had the evaluation completed for the hearing.

Fines

The court imposes fines and court costs, but the court also gives you a payment plan to pay them.

License Suspension

The court suspends your license at the sentencing hearing. In Idaho, the minimum license suspension is 90 days. However, the court imposes the maximum 180-day license suspension with 30 days absolute, meaning no possibility of a work permit for 30 days. Your attorney warned you that this was common. However, the court backdates your license suspension to the day your administrative license suspension began to run. Your administrative license suspension had already been running for 30 days, and so the absolute portion of the suspension was already finished, and you are now eligible for a work permit.

Withheld Judgment

Since you do not have a criminal history, and since you had taken proactive steps in your case by getting your evaluation done and beginning treatment, the court grants you a ‘withheld judgment.’ The court explains to you that it is not entering a judgment of conviction. Instead, it is going to withhold judgment during the period of your probation. After your probationary period is over, the court tells you that they will entertain a motion to dismiss. However, this does not happen automatically, and you must initiate the request yourself once your probation has ended.  Your DUI Attorney can file for you.

Supervision

The court places you on unsupervised probation since this is your first DUI. The court explains the terms of probation to you. Your DUI Attorney can also clarify any questions you may have. You already have an evaluation and have completed most of your treatment. Otherwise, the court would have placed you on supervised probation where you would have had a probation officer looking over your shoulder, having monthly meetings with you, giving you pop urinalysis tests, and otherwise making your life difficult.

SR-22 Insurance

The court does not order it at sentencing, but the department of transportation requires that you carry SR-22 insurance after your DUI conviction. SR-22 insurance is high-risk insurance that costs more to carry than regular coverage. However, your attorney tells you that once probation is over, and once the court dismisses the case, the court will no longer require you to carry SR-22 insurance.

Dismissal

Your court is over, and your probation begins. You finish your treatment, pay off your fines, complete your community service, and stay out of trouble. You almost forget you’re on probation. However, you marked your calendar precisely one year from the day the court sentenced you. The day arrives, and you call your DUI attorney to initiate the paperwork for the dismissal of your case. A few weeks later you get an order back from your DUI attorney saying the court dismissed your case. Your DUI attorney does give you one warning though; the court dismissed the DUI for all purposes except for one. If you were ever to get another DUI charge, it would still be an enhanced DUI second charge, which carries higher penalties. In other words, the dismissal does not prevent the State from filing the next DUI charge as a second offense.

You don’t mind though. This is your first, and only DUI charge you will ever get. You learned your lesson. If and when you ever go out and drink again, you will be taking an Uber or a Taxi, or going with a designated driver.

Specific Offences 

For information on specific offenses, read here: