Arrest and Alcohol FAQ

Arrested for DWI or Drugs?

Call 501-603-9911

 

Is getting a refusal bad?

Yes, Refusal under Act 106 results in additional penalties explained in 5-65-310 and 5-65-205 and they are too complicated to be explained in the limited space available here. Contact our law firm for more information. Basically, it is a stair-stepping offense which can have dire consequences to your driving privilege.

Do I have a right to talk to an attorney before deciding if I want to take the breath, urine, or blood test?

No. The Courts have ruled that giving a sample for chemical analysis is not testimonial in nature and therefore does not require attorney representation.  This can be very confusing when an officer reads you the Miranda rights informing you of your right to an attorney.  The Miranda rights only apply to incriminating statements.  The controlling law concerning alcohol testing is commonly referred to as the implied consent law.  In Arkansas if you operate a motor vehicle it is implied that you have given the government consent to take a sample of your blood, breath, or urine to be tested for alcohol or drugs.  This consent is not automatic.  The government (police) must show that they had reasonable cause to believe you were operating a motor vehicle while impaired by alcohol, a controlled substance, or a combination of the two.  Call one of our attorneys to discuss your particular case.

What if I have a commercial license?

If you were in a private vehicle (non-commercial) when you got your DWI you may be able to get an interlock if you meet the other requirements, but it will not include the ability to drive a commercial vehicle. If you have a commercial license and you wish to continue driving for work you need to get legal representation as soon as possible.  Many truck drivers find they can no longer make a living without their cdl.  In some circumstances we can postpone the suspension of the cdl, but it must be done within a certain time frame.  Call our dwi law firm to get more information.

How long do I have to request an administrative hearing on my license, are there any time limitations?

Yes. You only have seven days to send in your request for a hearing form (the pink sheet). Failure to do so could result in you not getting an interlock order.  It can also result in you losing your right to file an administrative appeal.  An attorney at our firm could help with this process.

Do I have to get an attorney to help me get a hearing at driver control?

No. But many times an attorney can help navigate through the system to make sure all requirements are met.  Contact one of our attorneys and we can discuss your options.

I followed the State Police guide of 1 drink per hour. Why did I register over a .08%?

Alcohol begins absorbing into the blood stream as soon as it enters the mouth, but most alcohol is absorbed through the small intestine. Food, especially those high in starches or fats, slow down the transfer of alcohol from the stomach to the small intestines, persons with certain digestive ailments can have a different absorption rate than the normal person, shock (from an injury in an accident) can also slow down the absorption period, or straight alcohol on an empty stomach can result in pyloric shock which can significantly slow down the absorption of alcohol. If that absorption is slowed you could have several drinks hitting you at once without the benefit of having any eliminated from your system. It also could be that you were drinking something with very high alcohol content. The state police recommendation is based a 1 oz. shot of 86 proof alcohol or a 12 oz beer. If you are drinking a heavy liquor or malt beer you fall outside the suggested guidelines.  Drink size is also important.  A 16 oz. cup filled with half alcohol and half coke is the same as 6 1 oz. shots of the same alcoholic beverage.

How long does it take to absorb alcohol into the blood stream?

Average is anywhere from 30 minutes for an empty stomach to 90 minutes with food in the stomach. Some studies have suggested it can take up to 6 hours for alcohol to absorb after eating certain foods. Others say that everyone should be fully absorbed within 30 minutes. I have seen no studies that suggest alcohol can be absorbed in less than 20 minutes. It is safe to say it varies considerably in ever person.  It will even vary in the same person from one time period to another.  You must consider absorbtion rate prior to driving to avoid a DWI.  You may feel fine when you leave the club but if you have recently consumed alcohol your BAC will be climbing and you will be at risk of being arrested for a DWI or DUI.

How long does it take for alcohol to leave my system so I will not get a DWI?

The average person will eliminate alcohol at a rate of .015%. This rate varies, but is the generally accepted elimination rate. Keep in mind you must absorb the alcohol before you begin to eliminate it. This means that if you have a drink and wait an hour you may just be reaching your peak and you will not begin eliminating that new alcohol until it is absorbed.

How long does alcohol stay in my system?

This is a simple question with a complex answer.  It doesn't matter if you drank beer, whiskey, vodka, wine, or some other alcoholic beverage, there is no set time limit on how long alcohol stays in your system.  First, the alcohol must be absorbed.  As discussed in another section, the absorbtion is different for each person and can even be different for the same person on a different day.  While the alcohol is absorbing, your body is also eliminating alcohol a rate of .015% per hour.  The only way to really determine when your body is free of alcohol is to start with a specific blood alcohol content, ie  If my blood alcohol is .12% at 4:00 am and I have fully absorbed my last drink, I can assume that at 7:00 am my blood alcohol content would be approximately .075%.  Keep in mind that sleep does not make you sober.  Unfortunately, our firm has represented many people for DWI or DUI that drank too much the night before and still tested over the limit the next morning.

What can affect blood alcohol content (BAC) of a person?

Alcohol absorption rates. Gender; women do not process alcohol as well as men. Alcohol Content; some drinks have considerably more alcohol than the standard 86 proof 1 oz. shot. Size of drink. Time spent drinking. Food. Weight; Larger people have more blood and can hold more alcohol.  You must remember that the measurement of alcohol is based on the amount of alcohol in your blood. For example: A 100lb person can drink 1 drink in a 1 hour period and have a BAC of .04%. A 160lb person having the same drink will register a BAC of .02%.  For a blood alcohol calculation try this link.

What tests do the officers do on the side of the road?

Horizontal Gaze Nystagmus (HGN), one-leg stand, and the walk and turn. These are the only three tests that have been certified by the National Highway Traffic Safety Administration (NHTSA).  Officers have come up with their own tests to help them determine impairment, but those tests have no scientific basis and can often be excluded from the case.  Officers will also frequently give PBT (a field breath test) which is used for probable cause to arrest for DWI or DUI but can not be used in Court.

Can the officer use a non-certified test to see if I am DWI?

NHTSA has advised that any test which helps the officer determine intoxication may be used; however, Courts have ruled that these tests have no scientific reliability.

Where do these tests come from?

In 1975 NHTSA sponsored a series of studies to determine a battery of tests that would provide officers with standardized and reliable evidence of impairment.

Six tests were given to 238 volunteers by 10 different law enforcement officers

• One leg stand
• Walk and turn
• Finger to nose
• Tracing (paper and pencil test)
• Finger count
• Nystagmus

The research indicated that only three tests were reliable if administered in a standardized fashion

• One leg stand
• Walk & turn
• HGN

The remaining tests were found too unreliable to make the list of approved tests.

 

How reliable are these field tests in determining if someone is DWI?

First, you must understand that these are Standardized tests. They are not valid unless performed in a standardized method. If performed properly the tests have the following accuracy rates:

Walk and Turn = 68% accurate

HGN = 77% accurate

One leg stand = 65% accurate

NHTSA suggest that a walk & turn HGN matrix could yield 80% accuracy when used together.

The problem with these tests is that they rarely are performed in a standardized manner.  Officers have modified the tests.  Intimate knowledge of the field tests is essential to a proper defense.

Does failing the field sobriety tests mean I was intoxicated under the DWI law?

Absolutely not.  There are many things that can cause someone to fail the field sobriety tests.  The NHTSA has listed several circumstances under which a person should not even be given the test.  Sometimes the officer does not follow the standardized testing procedures or the standardized scoring of the tests.  Courts across the country have recognized many legitimate reasons people may not be able to perform the tests.  Call our office and discuss your specific test results.

Have these field tests been validated?

In 1983 NHTSA validated the battery of tests in the field rather than a laboratory setting and determined a need for a standard scoring process.

What can I expect at my plea and arraignment for my DWI or DUI?

Your plea and arraignment is just the opportunity for you to tell the Judge you are not guilty. No evidence will be presented and you will not be allowed to tell your story. You will only be allowed to say whether or not you wish to plead guilty.  If you do not have an attorney present you will likely be asked to sign a waiver of counsel.  Make sure you read the waiver very carefully.  DWI and DUI have severe consequences and you need to know what rights you are giving up.

Do I need an attorney for the plea and arraignment for my DWI or DUI?

That is a trick question. The Courts will force you to either be represented by an attorney or to waive your right to an attorney. If you waive your right to an attorney you are giving up your chance to have the law and the consequences explained to you. Many people do not realize the severe punishment they could receive, but more importantly, they do not realize the rights they have and the burden that must be met by the State to prosecute a DWI. Also, if you hire an attorney at our firm we can most likely save you the time and embarrassment of having to go to the plea and arraignment. Frequently, we are able to enter our appearance on behalf of the client, plead the client not guilty, and request a trial date without the client missing work to attend.

If I plead not guilty is that going to make the Judge mad if I change my plea to guilty later?

No. It is extremely unusual for the State to have the case paperwork available for review prior to the plea and arraignment. As a result, you must plead not guilty in order to see the evidence to determine if the State can actually prove their case. Many DWI’s are won based an improper procedure, test, or a faulty machine. It would be impossible to know if you fall into that category if you do not wait until your attorney sees the paperwork on your case. Judges realize and expect an attorney to plead their client not guilty until the attorney has had the opportunity to examine all of the evidence and reports to determine if the client has a defense.

Other people have told me it is impossible to win a DWI (including several attorneys), why should I try to fight it?

Deciding to fight a DWI is a personal decision and should not be entered into lightly. Many times there are no plausible defenses; but many times there are. Our firm has won a great number of DWI cases, and though we guarantee no results for a particular case, we can make one guarantee. If you go in and plead guilty without having a qualified person examine your case, you will in fact be found guilty and suffer all the consequences of doing so. If you hire a competent attorney, experienced in DWI trial work, you at least have a fighting chance.

Why shouldn’t I just use my family attorney, he/she is likely much cheaper than your firm?

We encourage people to examine all avenues prior to making a decision on which firm to hire. Speak with your family attorney and speak with an attorney at our firm. If you believe that the family attorney can provide a valuable service at a reasonable price please hire them. However, if you believe that we have more knowledge in the area of DWI and believe we can provide the help you need then you must decide what it is worth to you.  Many people only consider the fine amount when trying to decide if they should hire an attorney.  Our fee is based on the work we do; not on the potential fine amount you would have to pay.  These are complicated cases with multiple issues to investigate and research.  When deciding if you need an attorney and how much you are willing to pay consider the social stigma, potential increase in insurance, potential loss of income or promotion at you place of employment, loss of you license, jail time, and consequences of enhancement if caught in this situation again.

How many DWI, DUI, or Drug cases does your firm handle?

Over 98% of our firm’s workload is comprised of alcohol and drug related offenses.  It is what we do!