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

Thefollowing is a list of symptoms in descending order of probabilitythat the person observed is driving while intoxicated. The list isbased upon research conducted by the National Highway TrafficAdministration:

• (1)Turning with a wide radius

• (2)Straddling center of lane marker

• (3)"Appearing to be drunk"

• (4)Almost striking object or vehicle

• (5)Weaving

• (6)Driving on other than designated highway

• (7)Swerving

• (8)Speed more than 10 mph below limit

• (9)Stopping without cause in traffic lane

• (10)Following too closely

• (11)Drifting

• (12)Tires on center or lane marker

• (13)Braking erratically

• (14)Driving into opposing or crossing traffic

• (15)Signalling inconsistent with driving actions

• (16)Slow response to traffic signals

• (17)Stopping inappropriately (other than in lane)

• (18)Turning abruptly or illegally

• (19)Accelerating or decelerating rapidly

• (20)Headlights off

Speeding,incidentally, is not a symptom of DUI; because of quicker judgment andreflexes, it may indicate sobriety.

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

You arenot required to answer potentially incriminating questions. A polite"I would like to speak with an attorney before I answer anyquestions" is a good reply. On the other hand, saying that youhad one or two beers is not incriminating: it is not sufficient tocause intoxication -- and it may explain the odor of alcohol on thebreath.

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

The lawon this varies from state to state. As a general rule, however, thereis no right to an attorney until you have submitted to (or refused)blood, breath or urine testing. In some states, there is a right toconsult with counsel upon being arrested or before deciding whether tosubmit to chemical testing. Of course, this does not mean that youcannot ask for one.

4. What is the officer looking for during the initial detention at the scene?

Thetraditional symptoms of intoxication taught at the police academiesare:

• (1)Flushed face

• (2)Red, watery, glassy and/or bloodshot eyes

• (3)Odor of alcohol on breath

• (4)Slurred speech

• (5)Fumbling with wallet trying to get license

• (6)Failure to comprehend the officer's questions

• (7)Staggering when exiting vehicle

• (8)Swaying/instability on feet

• (9)Leaning on car for support

• (10)Combative, argumentative, jovial or other"inappropriate" attitude

• (11)Soiled, rumpled, disorderly clothing

• (12)Stumbling while walking

• (13)Disorientation as to time and place

• (14)Inability to follow directions

5. What should I do if I'm asked to take field sobriety tests?

Thereare a wide range of field sobriety tests (FSTs), includingheel-to-toe, finger-to-nose, one-leg stand, horizontal gaze nystagmus,alphabet recitation, modified position of attention (Rhomberg),fingers-to-thumb, hand pat, etc. Most officers will use a set batteryof three to five such tests.

Unlikethe chemical test, where refusal to submit may have seriousconsequences, you are not legally required to take any FSTs. Thereality is that officers have usually made up their minds to arrestwhen they give the FSTs; the tests are simply additional evidencewhich the suspect inevitably "fails". Thus, in most cases apolite refusal may be appropriate.

6. Why did the officer make me follow a penlight with my eyes to the left and right?

This isthe "horizontal gaze nystagmus" test, a relatively recentdevelopment in DUI investigation. The officer attempts to estimate theangle at which the eye begins to jerk ("nystagmus" ismedical jargon for a distinctive eye oscillation); if this occurssooner than 45 degrees, it theoretically indicates a blood-alcoholconcentration over .05%. The smoothness of the eye's tracking thepenlight (or finger or pencil) is also a factor, as is the type ofjerking when the eye is as far to the side as it can go.

Thisfield sobriety test has proven to be subject to a number of differentproblems, not the least of which is the non-medically trainedofficer's ability to recognize nystagmus and estimate the angle ofonset. Because of this, and the fact that the test is not accepted bythe medical community, it is not admissible as evidence in manystates; it continues, however, to be widely used by law enforcement.

7. Should I agree to take a chemical test? What happens if I don't?

Theconsequences of refusing to submit to a blood, breath or urine testvaries according to the state. Generally, there are three adverseresults:

(1)Your driver's license will be suspended for a period of time,commonly three, six or twelve months. Colorado is 12 months) Thismay be true even if you are found not guilty of the DUI charge.

(2)In some states, refusal is a separate crime; in others, it adds jailtime to the sentence for the DUI offense.

(3)The fact of refusal can be introduced into evidence as"consciousness of guilt". Of course, the defense is freeto offer other reasons for the refusal.

Thus,the decision is one of weighing the likelihood of a high blood-alcoholreading against the consequences for refusing.

8. Do I have a choice of chemical tests? Which should I choose?

In moststates, you have a choice -- of breath, blood or urine (most states,however, do not offer urinalysis). If you choose breath, manyjurisdictions permit you to have a second test of blood or urine; thisis because a breath sample is not saved and so cannot later bere-analyzed by the defense.

Analysisof a blood sample is potentially the most accurate. Breath machinesare susceptible to a number of problems rendering them oftenunreliable. The least accurate by far, however, is urinalysis. Thus,if you are confident that you are sober, a blood sample is the wisechoice; urine, being least accurate and most easily impeached, is thebest option if you believe your blood-alcohol concentration is abovethe legal limit.

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

No. Theofficer is supposed to give a 5th Amendment warning after he arrestsyou. Often, however, they do not. The only consequence is that theprosecution cannot use any of your answers to questions asked by thepolice after the arrest.

Of moreconsequence in most cases is the failure to advise you of the state's"implied consent" law - that is, your legal obligation totake a chemical test and the results if you refuse. This can effectthe suspension of your license.

10. Why am I being charged with TWO crimes?

Thetraditional offense is "driving under the influence ofalcohol" (DUI), or in some states, "operating whileintoxicated" (OWI), or "driving while intoxicated" (DWI).In recent years, however, 48 states have also enacted a second,so-called "per se" offense: driving with an excessiveblood-alcohol concentration (either .08% or .10%). In those states,BOTH offenses are charged. The defendant can even be convicted ofboth, but can be punished for only one.

If thecase involves a refusal to submit to chemical testing, of course, onlythe traditional offense will be charged.

11. The officer took my license and served me with a notice of suspension after the breath test: How can he do that if I'm presumed innocent?

Agreed,it is blatantly unfair. But the law in most states having a "perse" statute (see question #10) provides for immediate suspensionand confiscation of the license if the breath test result is above thelegal limit (or, in the case of a blood or urine test, if the officerreasonably believes the result will be above the limit).

Warning:Be aware of a 7-day deadline for calling the Colorado DMV to request a hearing on the suspension and to get anextension of the temporary license.

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

You canrepresent yourself -- although it is not a good idea. "Drunkdriving" is a very complex field with increasingly harshconsequences. There is a minefield of complicated procedural,evidentiary, constitutional, sentencing and administrative licenseissues.

Whatcan a lawyer do? Nothing (or worse) if he is not qualified in thishighly specialized field -- no more than a family doctor could helpwith brain surgery. A qualified attorney, however, can review the casefor defects, suppress evidence, compel discovery of such things ascalibration and maintenance records for the breath machine, have bloodsamples independently analyzed, negotiate for a lesser charge orreduced sentence, obtain expert witnesses for trial, contest theadministrative license suspension, etc.

13. How can I find a qualified drunk driving lawyer?

Thebest way to find a good DUI/DWI lawyer is by reputation. There are afew attorneys who have national reputations; these, of course, areexpensive. Thus, the best approach is to ask other attorneys in thejurisdiction: Who is the best in the area? If you do not know anyattorneys, go to the local courthouse and ask bailiffs, clerks andpublic defenders: Who would THEY go to if arrested for drunk driving?

Contraryto popular belief, it is not a wise idea to obtain a referral from thelocal Bar association or referral service. There are rarely anyqualifications required for an attorney to be on a referral list; heusually only has to ask to be placed on it. When you call, you aresimply given the next name on that list.

Whenyou meet with the attorney, make sure of three things:

• (1)He has extensive experience in DUI/DWI litigation;

• (2)He has a reputation for going to trial in appropriate cases,rather than just "copping out" his clients; and

• (3)The financial terms of representation are clear.

Caution: Beware of lawyers claiming to be experts in the field who simply referyou to other "top DUI lawyers" for a fee.

14. What will it cost to get a lawyer?

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

Therange of fees is huge. A general practitioner in a small community maycharge only $500-1000; a DUI specialist with a national reputation maycharge up to $15,000 or more, depending on the facts.  Inaddition, the fee may vary by such other factors as:

• (1)Is the offense a misdemeanor or felony?

• (2)If prior convictions are alleged, the procedures for attackingthem may add to the cost.

• (3)The fee may or may not include trial or appeals.

• (4)Administrative license suspension procedures may also be extra.

• (5)The lawyer may charge a comprehensive fixed fee, or he may ask fora retainer in advance -- to be applied against hourly charges.

• (6)Costs such as expert witness fees, independent blood analysis,service of subpoenas, etc., may be extra.

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

15. What is the punishment for drunk driving?

Again,this varies according to the laws of the state and the customs of thelocal jurisdiction. Generally speaking, a conviction for a firstoffense may involve a fine, a license suspension or restriction,attendance at a DUI education course for a period of time, andprobation for perhaps three years. A short jail sentence may or maynot be required; for a second offense, it almost certainly will.Additional punishment may involve community service, ignitioninterlock devices, AA meetings, and/or impounding of the vehicle.

16. What is a sentence "enhancement"?

Moststates increase the punishment in drunk driving cases if certain factsexist. The most common of these is an earlier conviction for the sameor a similar offense -- usually within five or seven years of thecurrent offense. Other commonly encountered enhancements (which mustusually be alleged in the complaint) include:

• (1)A child was in the car at the time.

• (2)The defendant was travelling 20 or 30 miles over the speed limitat the time.

• (3)The blood-alcohol concentration was over .20%.

• (4)The defendant refused to submit to a chemical test.

• (5)There was property damage or injury.

• (6)The defendant was under 21 ("zero tolerance" lawscommonly require a much lower blood - alcohol level, and imposelonger license suspensions).

In moststates, the existence of any personal injury caused by drunk drivingelevates the offense to a felony. A death can trigger manslaughter oreven, in a few states, murder charges.

17. Whatis a "rising BAC defense"?

It isunlawful to have an excessive blood-alcohol concentration (BAC) at thetime of DRIVING -- not at the time of being TESTED. Since it takesbetween 30 minutes and 3 hours for alcohol to be absorbed into thesystem, an individual's BAC may continue to rise for some time afterhe is stopped and arrested.

Commonly,it is an hour or more after the stop when the blood, breath or urinetest is given to the suspect. Assume that the result is .12%. If thesuspect has continued to absorb alcohol since he was stopped, his BACat the time he was driving may have been only .08%. In other words,the test result shows a blood-alcohol concentration above the legallimit -- but his actual BAC AT THE TIME OF DRIVING was below.

18. What is "mouth alcohol"?

"Mouthalcohol" refers to the existence of any alcohol in the mouth oresophagus. If this is present during a breath test, then the resultswill be falsely high. This is because the breath machine assumes thatthe breath is from the lungs; for complex physiological reasons, itsinternal computer multiplies the amount of alcohol by 2100. Thus, evena tiny amount of alcohol breathed directly into the machine from themouth or throat rather than from the lungs can have a significantimpact.

Mouthalcohol can be caused in many ways. Belching, burping, hiccupping orvomiting within 20 minutes before taking the test can bring vapor fromalcoholic beverages still in the stomach up into the mouth and throat.Taking a breath freshener can send a machine's reading way up (suchproducts as Binaca and Listerine have alcohol in them); cough syrupsand other products also contain alcohol. Dental bridges and dentalcaps can trap alcohol. Blood in the mouth from an injury is yetanother source of inaccurate breath test results: breathed into themouthpiece, any alcohol in the blood will be multiplied 2100 times. Achronic "reflux" condition from gastric distress or a hiatalhernia can cause elevated BAC readings.

19. What defenses are there in a DUI case?

Potentialdefenses in a given drunk driving case are almost limitless due to thecomplexities of the offense. Roughly speaking, however, the majoritycan be broken down into the following areas:

(1)Driving. Intoxication is not enough: the prosecution must also provethat the defendant was driving. This may be difficult if, as in thecase of accidents, there are no witnesses to his being the driver ofthe vehicle.

(2)Probable cause. Evidence will be suppressed if the officer did nothave legal cause to (a) stop, (b) detain, and (c) arrest. Sobrietyroadblocks present particularly complex issues.

(3)Miranda. Incriminating statements may be suppressed if warnings werenot given at the appropriate time.

(4)Implied consent warnings. If the officer did not advise you of theconsequences of refusing to take a chemical test, or gave itincorrectly, in some states this may affect admissibility of thetest results -- as well as the license suspension imposed by themotor vehicle department.

(5)"Under the influence". The officer's observations andopinions as to intoxication can be questioned -- the circumstancesunder which the field sobriety tests were given, for example, or thesubjective (and predisposed) nature of what the officer considers as"failing". Too, witnesses can testify that you appeared tobe sober.

(6)Blood-alcohol concentration. There exists a wide range of potentialproblems with blood, breath or urine testing."Non-specific" analysis, for example: most breath machineswill register many chemical compounds found on the human breath asalcohol. And breath machines assume a 2100-to-1 ratio in convertingalcohol in the breath into alcohol in the blood; in fact, this ratiovaries widely from person to person (and within a person from onemoment to another). Radio frequency interference can result ininaccurate readings. These and other defects in analysis can bebrought out in cross-examination of the state's expert witness,and/or the defense can hire its own forensic chemist.

(7)Testing during the absorptive phase. The blood, breath or urine testwill be unreliable if done while you are still actively absorbingalcohol (it takes 30 minutes to three hours to complete absorption;this can be delayed if food is present in the stomach). Thus,drinking "one for the road" can cause inaccurate testresults.

(8)Retrograde extrapolation. This refers to the requirement that theBAC be "related back" in time from the test to the driving(see question #17). Again, a number of complex physiologicalproblems are involved here.

(9)Regulation of blood-alcohol testing. The prosecution must prove thatthe blood, breath or urine test complied with state requirements asto calibration, maintenance, etc.

(10)License suspension hearings. A number of issues can be raised in thecontext of an ad