Common Questions Regarding DUI Cases

Do you have to be “drunk” to be guilty of drunk driving?

No. Years ago, a drunk driving charge meant someone was “drunk” in the way all of us commonly understand. But today, intoxication as we know it is not required for one to be guilty of drunk driving. During the last ten years laws against drunk driving have changed radically, and today they are much more severe.

You may not think you are drunk. Those around you may not think you are drunk. Indeed, for the purpose of every other situation except driving, you may not even be considered drunk. But your condition may be enough for you to be found guilty of a drunk driving offense under the current definition of the law. And if you are convicted, you will suffer some very harsh penalties.

Legally, what is “drunk driving?”

A drunk driving offense, sometimes called driving under the influence of alcohol (DUI) or being in actual physical control of a motor vehicle while under the influence of an alcoholic beverage or while having a blood alcohol level over the legal limit has several meanings:

Driving with any amount of alcohol in your system which causes your physical abilities to be impaired to a certain degree.

Driving with a level of alcohol in your system which amounts to a measurement of .08 of blood alcohol content or greater. To be guilty of this offense, absolutely no impairment of any of your physical abilities is necessary. You may well be the world’s most talented, careful and safest driver, but if your blood alcohol content registers .08 or above you are guilty of a criminal offense.

Driving with drugs in your system or with a combination of drugs and alcohol, no matter what the amounts of those substances may be, where your physical abilities have become impaired to a certain degree. It does not matter if the drugs are legal, over the counter medications like antihistamines, nor does it matter if you have a prescription to take the drugs. If you are impaired as a result of taking them, then you are guilty of a criminal offense.


What amount of alcohol do I need to drink to have a blood alcohol content of .08 or higher?

Each person’s blood alcohol content from drinking certain amounts of alcohol will vary, depending upon a number of factors. The main factor is your weight. To calculate your blood alcohol content based upon having normal drinks such as a 12 ounce beer, a 4 ounce glass of wine, or a single mixed drink containing a one ounce shot of 100 proof liquor, the following rule of thumb is an illustration:

120 lbs: one drink in one hour – .032 two drinks in one hour – .064 three drinks in one hour – .096

180 lbs: one drink in one hour – .021 two drinks in one hour – .042 three drinks in one hour – .063 four drinks in one hour – .084

What is required for a police officer to stop me to investigate whether or not I am driving under the influence?

The officer must have what is legally termed a “reasonable suspicion,” either that you have been in an accident, or based on something unusual that is actually observed about the way a person is driving. This is a very low standard and it can be satisfied by virtually anything which appears out of the ordinary and that might be a sign of a driver being under the influence. In South Dakota these can also include an illegally tinted windshield or not using seat belts.

What happens to me if I am pulled over by the police for investigation of drunk driving?

If you are stopped, always be courteous and cooperative with the officer even if you are free of any type of alcohol or drugs, and even if you are certain that your driving did not show anything unusual. Never argue with the officer. Law enforcement is a tough, often nerve wracking job and the “attitude” you show to the officer can often make all the difference as to whether or not the encounter will be an unpleasant one for you.

If I’m stopped by a police officer and he asks me if I’ve been drinking, what should I say?

You are not required to answer potentially incriminating questions. A polite “I would like to speak with an attorney before I answer any questions” is a good reply. On the other hand, saying that you have one or two beers is not incriminating: it is not sufficient to cause intoxication – and it may explain the odor of alcohol on the breath.

What will happen if the officer who pulls me over suspects that I have been driving under the influence?

The officer will ask you to get out of the car and will instruct you to perform a series of “field sobriety tests.” These are standard physical ability measures and they include:

Reciting the alphabet from A – Z, and counting backwards;

Walking heel to toe along a straight line;

Standing on one foot for a few seconds;

In addition to these tests, some officers typically have certain field sobriety testing devices which they use. One such device is a breath meter (PBT) which you blow into, another is a light to shine in your eyes in order to test your pupil reaction. It is very important that if you suffer from any chronic physical problems, such as difficulty with your balance, problems walking or with your legs or feet, or problems with your lungs or eyes that you inform the officer of these things before you go through the field sobriety tests.

Do I have a right to an attorney when I’m stopped by an officer and asked to take a field sobriety test?

As a general rule there is no right to an attorney until you have submitted to (or refused) blood, breath or urine testing. In some situations, there is a right to consult with counsel upon being arrested or before deciding whether to submit to chemical testing. Of course, this does not mean that you cannot ask for one.

What should I do if I’m asked to take field sobriety tests (FSTs)?

Unlike the chemical test where refusal to submit may have serious consequences, you are not legally required to take any FSTs. The reality is that officers have usually made up their minds to arrest when they give the FSTs; the tests are simply additional evidence which the suspect inevitably “fails.” Thus, in most cases a polite refusal may be appropriate.

What happens if the officer believes that I have not performed the field sobriety tests satisfactorily?

You will probably be asked to take a preliminary breath test (PBT). You should be told that the only penalty if you refuse the PBT is a $100 fine. If you fail either test you will be told that you are under arrest for driving under the influence. You will be handcuffed, searched for weapons, placed in the back of the officer’s car and taken to a jail for further tests. At the jail you will also be booked and held there until you post bail or until a judge releases you on your own recognizance without bail. Once again, as upsetting and as stressful as being arrested is, it is essential that you continue to act courteously and cooperatively with the officer. Do not argue, threaten or become belligerent in any way. This type of behavior will only make the experience even more unpleasant for you.

What is a blood alcohol test?

This is a physical procedure to determine how much alcohol you have in your system. There are three ways of doing this test:

Drawing a sample of blood from your arm;

Obtaining a urine sample;

Obtaining a breath sample by having you blow into a machine called a breathalyzer. [This is different from the field (road) sobriety breath device (PBT) described above. The breathalyzer is much more sophisticated and exact.]

The officer will request one of the three tests. Unless you are physically unable to take that test you must do so. If you do not, you can lose your driving privileges. If, and only if, you take the requested test, you can then request one type of test of your own and the officer must act reasonably to obtain this test for you. If you do refuse the officer’s requested test it is likely he will seek a search warrant and forcibly take blood from you.

The officer never gave me a Miranda warning: Can I get my case dismissed?

No. The officer is supposed to give a 5th Amendment warning (Miranda) after he arrests you. Often, however, they do not. The only consequence is that the prosecution cannot use any of your answers to questions asked by the police after the arrest.

Of more consequence in most cases is the failure to advise you of the state’s “implied consent” law, that is: your legal obligation to take a chemical test and the results if you refuse. This can affect the suspension of your license.

Why am I being charged with TWO crimes?

The traditional offense is “driving under the influence” (DUI). In recent years, however, many states have also enacted a second, so-called “per se” or DUI offense: driving with an unlawful blood-alcohol level (.08 in South Dakota). When both offenses are charged, the defendant cannot be convicted of both; either one or the other, something lesser, or nothing.

How can I find a qualified drunk driving lawyer?

The best way to find a good DUI/DWI lawyer is by reputation. There are a few attorneys who have statewide or national reputations; these, of course, are expensive. Thus, the best approach is to ask other attorneys or court workers in the jurisdiction, or acquaintances who have also shared this experience.

When you meet with the attorney, make sure of three things:

He has extensive experience in DUI/DWI litigation;

He has a reputation for going to court hearings in appropriate cases, rather than just “copping out” his clients; and

The financial terms of representation are clear.

What will it cost to get a lawyer?

This varies, of course, by the reputation and experience of the lawyer and by the geographic location. As with doctors, generally the more skilled the attorney and the larger the city, the higher the fee. A related factor is the amount of time a lawyer devotes to his cases: the better lawyers take fewer clients, spending more hours on each.

The range of fees is huge. A general practitioner in a small community may charge only $500; an DUI/DWI specialist with a national reputation may charge $7,500. In addition, the fee may vary by such other factors as:

Is the offense a misdemeanor or felony?

If prior convictions are alleged, the procedures for attacking them may add to the cost.

The fee may or may not include trial or appeals.

Administrative license suspension procedures may also be extra.

The lawyer may charge a fixed fee, or he may ask for a retainer in advance-to be applied against hourly charges.

Costs such as witness fees, independent blood analysis, service of subpoenas, etc. may be extra.

Whatever the fee quoted, you should ask for a written agreement and make sure you understand all the terms.

DISCLAIMER:      The answers provided on this website are not substitutes for the advice of an attorney.  No person should ever apply or interpret any law without seeking the help of an attorney.  The attorney needs to know the facts of your situation and be aware of any changes in the law before forming and giving an opinion on it.  You should not read the responses herein to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe.  Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options.  Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

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