Dealing With a DUI or DWI Charge

Learn about arraignment, plea bargaining, and your options for dealing with your DUI or DWI charge.

Sometime after your arrest for a DUI (driving under the influence) or DWI (driving while intoxicated), you will have to appear before a judge for your arraignment. An arraignment is a court appearance in which a defendant is formally charged with a crime and asked to respond to the charge by entering a plea (guilty or not guilty). Read on to learn what will happen at your arraignment, what your options are for dealing with the charge, and how plea bargaining works.

What Will Happen at Your Arraignment

At your arraignment, you will be asked to plead to the charge, either guilty or not guilty. A lawyer may also be appointed for you and the amount of your bail may be set. Most defendants charged with misdemeanors who haven't already posted bail are released on their own recognizance at arraignment.

Having an attorney represent you at arraignment is normally unnecessary. At this stage, you are only entering a plea, and you can plead not guilty. You can always change your plea to guilty or "nolo contendere" (no contest) later.

In most states you can also insist on a jury trial. In these states you don't have to specifically request a jury trial; it is assumed you want one unless you expressly waive that right. You can always drop your demand for a jury trial later.

If you're charged with having prior under-the-influence convictions, you should deny these convictions so that you or your attorney can challenge their validity later.

What Are Your Options?

After you've been released from jail, try to objectively evaluate your case (most likely with the help of an experienced lawyer). Your alternatives include:

  • simply pleading guilty as charged
  • trying to plea bargain down to a reduced charge like reckless driving (a "wet reckless" is a term used for reckless driving involving alcohol)
  • asking for a trial before a judge, or
  • demanding a jury trial (available in most, but not all, states).

Should You Fight the Charge or Plea Bargain?

Generally, the more likely a jury is to find you guilty of driving under the influence (DUI), driving while intoxicated (DWI), or with a blood alcohol level (BAC) over .08%, the more you will want to plea bargain or negotiate a settlement with the prosecutor.

If your BAC was higher than 0.12% will have a very low chance of winning at trial. In all states 0.08% blood alcohol level is now sufficient to convict -- no matter how sober you felt, or how well you were driving. Your lawyer would have to shed doubt on the validity of the test results so that the jury either entirely disbelieves them or thinks that, after adjusting for possible errors in your favor, your blood alcohol level might have been less than 0.08%.

If your blood alcohol level tested out at between 0.08 and 0.11%, your chances of winning in a trial are slightly better. You still have to convince a jury that the test results are at least inaccurate enough to raise a reasonable doubt as to whether your blood alcohol was 0.08% or higher at the time you were driving. Juries tend to put a lot of faith in the blood test results.  So, if your BAC tested over 0.08%, your chances of convincing a jury or judge that you weren't under the influence or impaired will depend largely on the type of testimony your lawyer can elicit from anyone who was with you either before or while you were driving.

If your BAC was measured at less than 0.08%, your chances of beating a drunk-driving charge are better. First, you won't be convicted of the crime of having a blood alcohol level of 0.08% or more, and the prosecutor will have to establish that you were impaired at the below-0.08% level. However, if your blood alcohol level was found to be just slightly under 0.08% -- say, 0.06% or 0.07% -- measured about an hour after you were driving, the prosecutor could claim that it was higher -- above the legal limit of 0.08% -- when you were driving, and fell below that level before the blood or breath sample was taken.

A skilled defense attorney should be able to cross-examine the prosecutor's expert witnesses to show that the likelihood of one's driving ability being affected at a blood alcohol level of less than 0.08% is small. Naturally, the farther below 0.08% your blood alcohol was, the better your chances are of being acquitted and the more likely the prosecutor will be willing to plea bargain. But be warned: Defense attorneys' statistics show that the chances of beating a drunk-driving charge at trial are low.

Should You Ask for a Jury Trial?

If you choose to fight the charge and go to trial, you're probably best off insisting on a jury trial -- you'll have a better chance than with a case-worn and possibly cynical judge who has seen a lot of guilty people. The only exception to this general rule is when your defense is fairly unusual or technical. For example, if you staggered out of a bar and into your car and fell asleep -- but you didn't drive -- a judge might be more receptive to your defense than a jury.

How Plea Bargaining Works

Plea bargaining (sometimes also referred to as sentence bargaining) is a process where a criminal defendant (or the defendant's lawyer) and the prosecutor reach a compromise. The defendant enters a guilty plea in exchange for a reduced charge, fine or jail sentence. The prosecutor gets to rack up a conviction without having to go to trial with a questionable case.  

Plea bargains in drunk-driving cases, however, are no longer as common as they were many years ago. In light of the fact that many states flatly outlaw driving with a blood alcohol level of 0.08% or more -- regardless of whether the driver is under the influence -- it is common for prosecutors to obtain convictions in cases that were once borderline (0.08% to 0.12% alcohol levels). And if alcohol was involved in any way, prosecutors may be prohibited from bargaining the charge down to anything less than a "wet reckless."  (Many jurisdictions prevent a plea bargain of "dry" reckless if alcohol was involved, whether or not the driver was under the influence or impaired.)

Getting a Lawyer

Whether you'd prefer to plea bargain or take your case to trial, think about getting an attorney to represent you. If you're unable to afford an attorney, ask the judge at your arraignment to appoint a lawyer. The judge will probably ask you to fill out a financial disclosure form and refer you to the public defender's office. In more rural areas, the judge may appoint a private defense lawyer to represent you.

If your finances are tight but you don't qualify for free representation, you might hire an attorney for the limited purpose of fully explaining your options to you or working out a plea bargain with the prosecutor.

To find a lawyer, Nolo offers a unique Lawyer Directory that provides a comprehensive profile for each attorney with information that will help you select the right attorney. The profiles tell you about the lawyer's experience, education, and fees, and perhaps most importantly, the lawyer's general philosophy of practicing law. For more information, see

For More Information

To learn more about your options when facing a DUI or DWI charge, and about how to deal intelligently with your lawyer, see Beat Your Ticket: Go to Court & Win, by David Brown (Nolo).

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