The Firm

DWI FAQs

  1. What do police officers look for when searching for drunk drivers on the highways?

The following is a list of observations which police officers look for which indicate to them that the person observed is driving while intoxicated.

  1. 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, admitting that you had 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.

  1. What is the officer looking for when first contacting the driver at the window?
  1. What is the officer looking for immediately after asking the driver to exit his or her vehicle?
  1. Do I have a right to an attorney when I’m stopped by an officer and asked to take a field sobriety test?

No. However, you are not required by Missouri law to submit to field sobriety exercises. A polite “I would like to consult with an attorney before agreeing to take any field test” is a good answer.

  1. Why did the officer make me follow a penlight (or finger or pencil) with my eyes to the left and right?

This is the “horizontal gaze nystagmus” test. The officer is checking for the smoothness of the eye’s tracking the penlight (or finger or pencil), distinct jerking when the eye is as far to the side as it can go, and the angle at which the eyeballs begin to jerk.

  1. Should I agree to take a chemical test? What happens if I don’t?

There are two consequences of refusing to submit to a blood, breath or urine test in Missouri:

Thus, the decision is one of weighing the likelihood of a high blood-alcohol reading against the consequences for refusing. You should request the opportunity to consult with a lawyer before making this decision. In Missouri, you must be allowed 20 minutes to call an attorney. Request it. Use it. You don’t get the time unless you specifically ask.

  1. Do I have a choice of chemical tests?

No, you do not.

  1. 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 after he arrests you, and before any questioning. Often, however, the officer does 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 and the admissibility of your refusal at trial.

  1. Can I represent myself? What can a lawyer do for me?

You can represent yourself — although it is not a good idea. “Drunk driving” is a very complex field with increasingly harsh consequences. There is a minefield of complicated procedural, evidentiary, constitutional, sentencing and administrative license issues.

What can a lawyer do? Nothing (or worse) if he is not qualified in this highly technical field – no more than a family doctor could help with brain surgery. A qualified attorney, however, can review the case for defects, suppress unlawfully obtained or inadmissible evidence, compel discovery of such things as calibration and maintenance records for the breath machine, have blood samples independently analyzed, negotiate for a lesser charge or reduced sentence, obtain expert witnesses for trial, contest the administrative license suspension, etc.

  1. 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 national reputations; they, of course, are expensive. Thus, the best approach is to ask other attorneys in the jurisdiction: Who is the best in the area? If you do not know any attorneys, go to the local courthouse and ask bailiffs, clerks and public defenders: Who would THEY go to if arrested for drunk driving?

Contrary to popular belief, it is not a wise idea to obtain a referral from the local Bar Association or referral service. There are rarely any qualifications required for an attorney to be on a referral list; he usually only has to ask to be placed on it. When you call, you are simply given the next name on that list.

An excellent indication of the quality and experience of a lawyer in handling DWI cases includes such things as membership in the National College for DUI Defense, being a frequent lecturer on DWI law within the State, and recognition from other groups who acknowledge the attorney’s accomplishments.

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

  1. 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 for a first offense; a DUI specialist with a national reputation may charge up to $15,000 or more for a third offense, depending on the facts. In addition, the fee may vary by such other factors as:

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

  1. What is a “rising BAC defense”?

It is unlawful to have an excessive blood-alcohol concentration (BAC) at the time of DRIVING — not at the time of being TESTED. Since it takes between 30 minutes and 3 hours for alcohol to be fully absorbed into the system, an individual’s BAC may continue to rise for some time after he or she is stopped and arrested.

Commonly, it is up to an hour or more after the stop when the blood, breath or urine test is given to the suspect. Assume that the result is .11%. If the suspect has continued to absorb alcohol since the traffic stop, his or her BAC at the time of driving may have been only .07%. In other words, the test result shows a blood-alcohol concentration above the legal limit — but the actual BAC AT THE TIME OF DRIVING was below.

  1. What is “mouth alcohol?”

“Mouth alcohol” refers to the existence of any alcohol in the mouth or esophagus. If this is present during a breath test, then the results may be falsely high. This is because the breath machine assumes that the breath is from the lungs; for complex physiological reasons, its internal computer multiplies the amount of alcohol by 2100. Thus, even a tiny amount of alcohol breathed directly into the machine from the mouth or throat rather than from the lungs can have a significant impact.

Mouth alcohol can be caused in many ways. Belching, burping, hiccuping or vomiting within 20 minutes before taking the test can bring vapor from alcoholic beverages still in the stomach up into the mouth and throat. Taking a breath freshener can send a machine’s reading way up (such products as Binaca and Listerine have alcohol in them); cough syrups and other products also contain alcohol. Dental bridges and dentures can trap alcohol. Blood in the mouth from an injury is yet another source of inaccurate breath test results: breathed into the mouthpiece, any alcohol in the blood will be multiplied 2100 times. A chronic “reflux” condition from gastric esophageal reflux disease (“GERDS”) or a hiatal hernia can cause elevated BAC readings.

  1. What defenses are there in a DWI case?

Potential defenses in a given drunk driving case are almost limitless due to the complexities of the offense. Roughly speaking, however, the majority can be broken down into the following areas:

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