Arrested for a DUI: What to Expect

Getting arrested for driving under the influence of drugs or alcohol (DUI) can be frightening and confusing. An officer who stops someone for DUI will ask a lot of questions and request that the driver complete field sobriety tests and a breath test. If the driver is arrested, the officer also will require further chemical testing of the driver's blood, breath, or urine.

Every case is different. But this article discusses some of the common features of DUI arrests, the stages of criminal and administrative DUI cases, and the potential penalties for a DUI.

DUI Traffic Stops: Getting Pulled Over

Most DUI arrests start with the driver being pulled over or stopped by the police. Legally speaking, it's required for the police to have a valid reason to do so.

Reasonable Suspicion Justifying a Traffic Stop

In most DUI cases, police pull the motorist over because of signs of impairment (such as swerving) or a traffic violation (even something minor like a broken taillight will suffice). Generally, a stop is legal so long as police had reasonable suspicion to believe the driver violated the law.

If the police truly had no reasonable suspicion to pull you over, you can bring a motion to suppress, which can result in the entire case being thrown out.

Can the Police Pull You Over Based on a 911 Call?

In some cases, the police will receive a call about a motorist driving erratically and will pull the vehicle over based on that call. The United States Supreme Court has held that a traffic stop based on a 911 call alone (without additional police observations of poor driving) generally is legal. (Navarette v. California, 572 U.S. 393 (2014).)

Whether a phone call from a concerned citizen alone can establish reasonable suspicion to stop a vehicle depends on several factors, including:

• the amount of detail given in the call (for instance, the make and model of the vehicle, license plate number, description of the driver, driving behavior, and the vehicle's direction of travel)
• elapsed time between the call and the stop
• whether the caller dialed 911 (which provides the police with details about the caller) or a general police number, and
• whether the caller gives their information or remains anonymous.

If the caller uses 911—or calls a nonemergency number and gives their name and contact information—and provides details about the driver's behavior and location, the police will have more justification to stop the vehicle. But a completely anonymous call with little information (such as the caller saying, "I saw a black SUV swerving on Main Street," with no further details) will be less likely to justify a stop.

In reality, police officers who receive dispatches about a potential drunk driver often will look for signs of intoxication (like swerving) or a traffic infraction (like speeding) before pulling a vehicle over. Reasonable suspicion is based on the totality of the information the officer has. If the officer observes driving behavior that corroborates the phone call, a judge will more likely find that the traffic stop was justified.

The Legalities of DUI Checkpoints

A DUI checkpoint, where police stop all traffic on a certain roadway, is an exception to the general rule that police need evidence of wrongdoing to stop a vehicle. Basically, the U.S. Supreme Court ruled that the government's interest in having checkpoints outweighs the inconvenience and intrusion to drivers. (Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990).)

However, some states' laws prohibit police from using DUI checkpoints.

When Police Can Search Your Car During a DUI Stop

Generally, if police have probable cause to believe there's incriminating evidence inside your car, they can search it without a warrant. For instance, an officer might see or smell things during a DUI stop that give them reason to suspect there are drugs in the car. If that's the case, police could be justified in not only searching the interior of your car, but also the glove box, trunk, and closed containers such as backpacks.

Another common justification for an automobile search is driver consent: Generally, police can look inside your car if you give them permission to do so.

Laws about searches are full of exceptions and nuances. If you have a question about a car search, it's probably best to contact an attorney.

DUI Investigations: Establishing Probable Cause and Guilt

Before a police officer can arrest a driver, the officer must have "probable cause" that the driver committed a crime. After stopping a vehicle, the officer will use investigative techniques to develop:

• probable cause to arrest the motorist, and
• evidence that the motorist is guilty of DUI.

Every case is different, but most DUI investigations involve some or all of the components discussed below.

Police Observations of Intoxication

Traffic stops typically begin with the officer asking for your license and registration. The officer is likely to take note if you show signs of impairment—things like fumbling around with your documents or the odor of alcohol or marijuana. These observations—along with the officer's observations about your driving—can be used to establish both probable cause and guilt.

Police Questioning of DUI Suspects

During a DUI stop, police almost always ask the driver if they've had anything to drink. In response, most motorists say something like, "just a beer or two with dinner"—often an underestimation of what they drank.

Police have heard these types of responses countless times and aren't likely to stop there—especially if there are other indicators that you're drunk or have been using drugs. After receiving confirmation that you've been drinking—whatever the amount—most officers are going to want to investigate further.

You have the right to remain silent in response to police questioning. It's generally a good idea to exercise that right. Be warned that any statements you make can be used against you in a probable cause hearing and your DUI trial.

DUI Field Sobriety Tests

An officer who suspects someone of drunk driving will often seek to confirm that suspicion by using field sobriety tests (FSTs). There are several different FSTs that police use. But the most common are the three "standardized" FSTs:

• horizontal gaze nystagmus (HGN)
• walk and turn, and
• one-leg stand.

In the 1970s, the National Highway Traffic Safety Administration (NHTSA) developed these three tests—which together are called the "standardized FST battery"—for officers to gauge a motorist's level of impairment.

FSTs are almost always admissible in court to establish probable cause. However, some judges might not let the prosecution use FSTs—especially FSTs that aren't the standardized FSTs—to establish guilt during a DUI trial.

PAS Breathalyzer Tests

Officers often ask drivers to use a "preliminary alcohol screening" (PAS) test (commonly called a "breathalyzer"). A PAS device—also called "portable breath test" (PBT) —is a handheld machine that police use to measure a driver's breath alcohol concentration.

PAS results tend to be less reliable than breath or blood tests conducted at a police station or hospital. Because of their lower reliability, PAS tests often aren't admissible in a trial to prove the guilt of a DUI defendant. But PAS tests usually can be used in court to prove to a judge that there was probable cause for the DUI arrest.

Mandatory DUI Blood, Breath, and Urine Tests

After a DUI arrest, a police officer will ask the motorist to take a blood, breath, or urine test. Chemical testing is crucial to DUI investigations. Every state has laws that make it illegal to drive with a blood alcohol concentration (BAC) of .08% or more (.05% or more in Utah). But proving a driver's BAC requires test results. To aid in DUI prosecutions, all states have laws that make testing mandatory under most circumstances. Below, we discuss these laws and the consequences of refusing a test.

DUI Implied Consent Laws

All 50 states have "implied consent" laws that require motorists lawfully arrested for DUI to submit to chemical testing. The purpose of the testing—usually of the breath or blood—is to measure the amount of drugs or alcohol in the driver's system.

Penalties for Refusing a DUI Blood or Breath Test

Motorists who refuse testing normally face consequences that can include:

• license suspension
• fines, and
• having to install an ignition interlock device.

And if the DUI case goes to trial, many states allow the prosecution to tell the jury about the defendant's refusal.

In some states, you can even be convicted of a separate crime for refusing a chemical test. In these states, a refusal can lead to two separate criminal convictions: one for DUI and another for the refusal. However, in 2016, the U.S. Supreme Court held that laws criminalizing refusal to take a blood test were unconstitutional. But the Court did say that it's generally okay for a law to criminalize refusing to submit to a breath test. (Birchfield v. North Dakota, 579 U.S. 438 (2016).)

DUI Arrest, Detention, and Release

Arrest and release procedures differ by state and the circumstances of the case. But here's how it normally works.

Getting Booked for a DUI

If police determine there's probable cause to arrest you for driving under the influence, you'll likely be taken to the local jail or police station to be booked and cited for the offense. At the police station or jail, they will offer you a breath test. If you end up taking a blood test instead, the police normally will need to transport you to a medical facility for the blood draw.

Impoundment or Release of Your Vehicle

Depending on state law or local procedures, the police might have your car towed to an impound lot. In some circumstances, the police might allow you to contact a friend or family member to pick up the car. If the car is parked legally, the police also may decide to leave your car where it is.

Temporary Driver's Licenses

When police arrest you for a DUI, they typically take your driver's license and give you a temporary paper driving permit. The temporary permit is normally effective until the court or the Department of Motor Vehicles decides whether to suspend your license.

Paying Bail and Getting Released from Jail

You'll normally stay in jail until someone bails you out or a judge or magistrate releases you on your "own recognizance" (your promise to appear in court). If you were arrested on a Friday and not bailed out, you might have to spend the entire weekend in jail. The "good" news is that you'll get credit against any future sentence imposed for the time you've already spent in jail.

Administrative License Suspensions

In most cases, the state will automatically suspend the license of anyone who's arrested for a DUI or who refuses a blood or breath test. In many states, the Department of Motor Vehicles (DMV) is the state agency that handles these administrative license suspensions, but some states have a different name for this agency. You should receive paperwork at your arrest with the name of the agency and information about your suspension and right to an administrative hearing.

Administrative license suspensions are independent of the criminal charges for DUI. If you're found not guilty of DUI in court, your state still might impose an administrative suspension at a DMV hearing. If you want to contest an administrative suspension, you must request a hearing with the DMV. State laws are different, but a driver usually has 10 days or less to request a hearing.

At the DMV hearing, you'll have an opportunity to challenge the license suspension. Unlike a criminal case, you don't have a constitutional right to an attorney. However, it's advisable to hire an attorney to represent you at the hearing if you can afford one.

The Arraignment: The First Court Date

State courts have different procedures, but the first court date usually is the arraignment. When you're released from the police station or jail after your arrest, you'll receive a lot of paperwork, including your temporary license and information about your arraignment. Make sure to keep all this information in a safe place and schedule the arraignment on your calendar. Failing to appear at your arraignment—or any future court date—could result in the judge issuing a warrant for your arrest and a new criminal charge for failure to appear.

At your arraignment, the judge will formally inform you about your charges and rights and will ask whether you wish to hire an attorney or have the court appoint one. If you want a court-appointed attorney, the court will ask you to fill out paperwork about your finances to see if you qualify for one.

At the end of the arraignment, the court will set your next court date, which could be the trial date or another hearing—like a status hearing—to see if you've hired an attorney.

DUI Police Reports

Most people are curious to see the DUI police report, which describes in the officer's words what happened. The police report usually isn't available until the arraignment or later. The procedure for obtaining a police report varies from jurisdiction to jurisdiction. A qualified DUI attorney can help you obtain the police report.

Because the report describes the case against you, it's an important tool for deciding how best to handle your case. An experienced DUI attorney can often identify the strengths and weaknesses of the state's case by reviewing the police report.

DUI Pleas and Trials

As soon as possible after your arraignment, you should meet with our attorney to discuss your case. Your attorney will discuss potential plea options, trial strategies, and potential punishments if you're convicted at trial.

You can avoid the expense and stress of a trial by entering a plea agreement with the prosecution. Sometimes, plea agreements might include pleading to a lesser charge with lower penalties. The type of plea agreement available will depend on several factors, including state law, local policies, the facts of your case, and your prior record. Some states don't allow prosecutors to reduce DUIs to lesser charges, and some prosecutors' offices won't agree to reduced charges.

Some states have DUI first-offender programs that can reduce the penalties of a DUI offense. In some cases, first-offender programs can result in the DUI charge being dismissed. These programs place the offender on a period of probation and require the completion of requirements like drug or alcohol treatment and community service.

If you decide to go to trial, you can elect to have your case decided by a judge or a jury. At trial, both you and the prosecutor will be able to present evidence. At the end of the trial, the judge or jury will find you guilty or not guilty. If the verdict is not guilty, then you won't have a criminal record and won't receive any punishment from the court. However, you might still have administrative penalties from your state DMV, depending on your state's laws.

DUI Conviction Penalties

If you plead guilty to DUI or are found guilty at trial, you'll face several potential penalties.

Jail Time

In most states, jail time is unlikely for a first DUI conviction unless the driver has an extremely high BAC or there are other aggravating factors (like an accident). Some states do have mandatory minimum sentences of a few days in jail for a first offense. Second DUI offenses tend to result in more jail time—generally, several days to a month. And third or subsequent offense often is a felony that often results in several months in jail.

Probation

Courts often will place a driver convicted of DUI on supervised or unsupervised probation to make sure the driver completes all conditions of the court's sentence. Supervised probation involves meeting with a probation officer. Unsupervised probation doesn't involve a probation officer, but the court typically will ask the driver to provide the court with proof of completing the sentencing conditions. A person who violates probation often will receive time in jail for the violation.

Fines

The fines for a DUI conviction vary by state and the number of prior convictions. The fines for a first DUI offense generally are around $500 to $2,000. The fines tend to increase with each subsequent conviction.

License Suspension

A DUI conviction will lead to license suspension—anywhere from several months to a year for a first offense. A license suspension imposed by the court for a conviction generally will run concurrently with a DMV suspension. In other words, if you get a 6-month DMV suspension and another 6 months from the court, your total suspension will be only 6 months, not 12.

Ignition Interlock Device

Many states require drivers convicted of DUI to install an Ignition Interlock Device (IID) on their vehicles. An IID is a breathalyzer attached to the car's ignition system. A driver must be able to give a clean breath sample before the IID will allow the vehicle to start. Installing an IID can cost more than $100, but they also require a monthly fee, which can be as high as the cost of installation. So, if your IID costs $100 to install and $100 per month, you'd pay $1300 total for a 12-month IID requirement.

Increased Insurance Rates

A DUI conviction will lead to increased insurance rates. Drivers also will be required to obtain an SR-22, which is a special proof of insurance required by the DMV, to have their license reinstated.

Other Penalties

Some form of substance abuse evaluation and treatment often is a part of any DUI sentence. A court also may impose community service in some cases. Many states require the convicted driver to attend a victim impact panel to learn about the dangers of DUI. Generally, if the court orders a program to be completed, the driver must pay the fees for the program.

DUI convictions also can carry consequences beyond the courts and DMV. Some employers might have clauses in their employment contracts that will result in the driver being fired for a DUI. People with professional licenses (law, medicine, etc.), pilot's licenses, or commercial driver's licenses could have their licenses suspended or revoked. A conviction also can affect someone's immigration status and eligibility for government benefits or programs.

Getting Legal Help

If you've been arrested for driving under the influence, it's a good idea to get in contact with an experienced DUI attorney. DUI laws vary by state, and the facts of every case are different. A qualified DUI lawyer can help you understand what the law is in your state and explain any possible defenses you might have.