Driving under the influence FAQs

Answers to your questions on legal limits, chemical tests and hiring a lawyer in the event you're charged with driving under the influence.

How drunk or high does someone have to be before he can be convicted of driving under the influence?
In most states, it's illegal to drive a car while "impaired" by the effects of alcohol or drugs (including prescription drugs). This means that there must be enough alcohol or drugs in the driver's body to prevent him from thinking clearly or driving safely. Many people reach this level well before they'd be considered "drunk" or "stoned." States vary as to the blood alcohol content (BAC) level that constitutes a DUI (driving under the influence).

How can the police find out whether a driver is under the influence?
Police typically use three methods of determining whether a driver has had too much to be driving:

Observation. A police officer will pull you over if he notices that you are driving erratically -- swerving, speeding, failing to stop or even driving too slowly. Of course, you may have a good explanation for your driving (tiredness, for example), but an officer is unlikely to buy your story if he smells alcohol on your breath or notices slurred words or unsteady movements.

Sobriety tests. If an officer suspects that you are under the influence, he will probably ask you to get out of the car and perform a series of balance and speech tests, such as standing on one leg, walking a straight line heel-to-toe or reciting a line of letters or numbers. The officer will look closely at your eyes, checking for pupil enlargement or constriction, which can be evidence of intoxication. If you fail these tests, the officer may arrest you or ask you to take a chemical test.

Blood-alcohol level. The amount of alcohol in your body is understood by measuring the amount of alcohol in your blood. This measurement can be taken directly, by drawing a sample of your blood, or it can be calculated by applying a mathematical formula to the amount of alcohol in your breath or urine. Some states give you a choice of whether to take a breath, blood, or urine test -- others do not. If you test at or above the level of intoxication for your state (.08 to .10 % blood-alcohol concentration, depending on the state), you are presumed to be driving under the influence unless you can convince a judge or jury that your judgment was not impaired and you were not driving dangerously. Defense attorneys often question the validity of the conversion formula when driver's alcohol levels are based on breath or urine tests.

Do I have to take a blood, breath, or urine test if asked to do so by the police?
You may refuse to take a chemical test (blood, breath, or urine), but almost every state has a so-called "implied consent" law, and, under such laws, a refusal can result in suspension of your driver's license from anywhere between three to 12 months. (This is true even if you're eventually found not guilty of the current drunk driving charge.) Further, if your drunk driving case goes to trial, the prosecutor can tell the jury that you wouldn't take the test, which may lead the jury members to conclude that you refused because you were, in fact, drunk or stoned.

If I'm stopping for driving under the influence, am I entitled to talk to an attorney before I decide which chemical test to take?
We all know from television that the Miranda warnings are meant to inform you that you have the right to speak with an attorney. The Police in South Carolina, are required by statute to read to you your Miranda warnings, prior to giving you any roadside sobriety tests or datamaster test. Prior to the passage of the statute requiring the Police to read you your Miranda warnings the law was that you did not have the right to speak with an attorney before taking either of these tests. What do you do if the officer does not allow you to speak with us as you are permitted to do under our law? Do not talk to the officer. Do not take any field sobriety tests. Do not take any breath tests. Do not talk. We will do the talking for you in court.

If I'm stopped for driving under the influence, can a police officer ask me questions, give me a field sobriety test or breath test  without reading me my rights?
Sometimes. The answer depends on whether or not you are in police custody -- that is, whether you are subject to the restraints common to a formal arrest. For example, the U.S. Supreme Court has ruled that the police do not have to provide Miranda warnings during roadside questioning of a motorist detained pursuant to a traffic stop. Thus, roadside questioning about your drinking, drug-taking, or performance on field sobriety tests does not constitute "custodial interrogation." However, in South Carolina the Legislature has specifically dictated that the officer, prior to giving you and field sobriety tests or breath tests must read you your Miranda warnings and insure you know your rights.  In addition, once you are arrested -- or restrained by the police in a manner consistent with arrest -- you must be read your Miranda rights before they can ask you any questions regarding the crime you have been charged.

I've been charged with drunk driving. Should I get a lawyer?
Defending against a charge of drunk driving is a tricky business. Defenders need to understand scientific and medical concepts, and must be able to question tough witnesses, including scientists and police officers. If you want to fight your drunk driving charge, you're well advised to hire an attorney who specializes in these types of cases.

On the other hand, these days it's hard to "win" a drunk driving case, assuming the police gathered some physical evidence against you (results of a breathalyzer, blood test, or urine test). And the punishments for DUI are pretty standard. If you were truly guilty, it's unlikely that a lawyer could get you any better of a deal or plea bargain than you can get for yourself.

I was pulled over at a roadblock and asked to wait and answer a police officer's questions. Is this legal?
Yes, as long as the police use a neutral policy when stopping cars (such as stopping all cars or stopping every third car) and they minimize any inconvenience to you and the other drivers. The police can't single out your car at a roadblock unless they have good reason to believe that you've broken the law. However, under South Carolina law, you cannot be charged with driving with having an unlawful breath alcohol content (DUAC) if you are stopped at a roadblock.