Traffic / DWI

Sometime after your arrest for a DUI (driving under the influence) or DWI (driving while intoxicated), you will have to appear before a judge for your arraignment. An arraignment is a court appearance in which a defendant is formally charged with a crime and asked to respond to the charge by entering a plea (guilty or not guilty). Read on to learn what will happen at your arraignment, what your options are for dealing with the charge, and how plea bargaining works.

What Will Happen at Your Arraignment

At your arraignment, you will be asked to plead to the charge, either guilty or not guilty. A lawyer may also be appointed for you and the amount of your bail may be set. Most defendants charged with misdemeanors who haven't already posted bail are released on their own recognizance at arraignment.

Having an attorney represent you at arraignment is normally unnecessary. At this stage, you are only entering a plea, and you can plead not guilty. You can always change your plea to guilty or "nolo contendere" (no contest) later.

In most states you can also insist on a jury trial. In these states you don't have to specifically request a jury trial; it is assumed you want one unless you expressly waive that right. You can always drop your demand for a jury trial later.

If you're charged with having prior under-the-influence convictions, you should deny these convictions so that you or your attorney can challenge their validity later.

What Are Your Options?

After you've been released from jail, try to objectively evaluate your case (most likely with the help of an experienced lawyer). Your alternatives include:

  • Simply pleading guilty as charged

  • Trying to plea bargain down to a reduced charge like reckless driving (a "wet reckless" is a term used for reckless driving involving alcohol)

  • Asking for a trial before a judge, or

  • Demanding a jury trial (available in most, but not all, states)

Should You Fight the Charge or Plea Bargain?

Generally, the more likely a jury is to find you guilty of driving under the influence (DUI), driving while intoxicated (DWI), or with a blood alcohol level (BAC) over .08%, the more you will want to plea bargain or negotiate a settlement with the prosecutor.

If your BAC was higher than 0.12% will have a very low chance of winning at trial. In all states 0.08% blood alcohol level is now sufficient to convict -- no matter how sober you felt, or how well you were driving. Your lawyer would have to shed doubt on the validity of the test results so that the jury either entirely disbelieves them or thinks that, after adjusting for possible errors in your favor, your blood alcohol level might have been less than 0.08%.

If your blood alcohol level tested out at between 0.08 and 0.11%, your chances of winning in a trial are slightly better. You still have to convince a jury that the test results are at least inaccurate enough to raise a reasonable doubt as to whether your blood alcohol was 0.08% or higher at the time you were driving. Juries tend to put a lot of faith in the blood test results. So, if your BAC tested over 0.08%, your chances of convincing a jury or judge that you weren't under the influence or impaired will depend largely on the type of testimony your lawyer can elicit from anyone who was with you either before or while you were driving.

If your BAC was measured at less than 0.08%, your chances of beating a drunk-driving charge are better. First, you won't be convicted of the crime of having a blood alcohol level of 0.08% or more, and the prosecutor will have to establish that you were impaired at the below-0.08% level. However, if your blood alcohol level was found to be just slightly under 0.08% -- say, 0.06% or 0.07% -- measured about an hour after you were driving, the prosecutor could claim that it was higher -- above the legal limit of 0.08% -- when you were driving, and fell below that level before the blood or breath sample was taken.

A skilled defense attorney should be able to cross-examine the prosecutor's expert witnesses to show that the likelihood of one's driving ability being affected at a blood alcohol level of less than 0.08% is small. Naturally, the farther below 0.08% your blood alcohol was, the better your chances are of being acquitted and the more likely the prosecutor will be willing to plea bargain. But be warned: Defense attorneys' statistics show that the chances of beating a drunk-driving charge at trial are low.

Should You Ask for a Jury Trial?

If you choose to fight the charge and go to trial, you're probably best off insisting on a jury trial -- you'll have a better chance than with a case-worn and possibly cynical judge who has seen a lot of guilty people. The only exception to this general rule is when your defense is fairly unusual or technical. For example, if you staggered out of a bar and into your car and fell asleep -- but you didn't drive -- a judge might be more receptive to your defense than a jury.

How Plea Bargaining Works

Plea bargaining (sometimes also referred to as sentence bargaining) is a process where a criminal defendant (or the defendant's lawyer) and the prosecutor reach a compromise. The defendant enters a guilty plea in exchange for a reduced charge, fine or jail sentence. The prosecutor gets to rack up a conviction without having to go to trial with a questionable case.

Plea bargains in drunk-driving cases, however, are no longer as common as they were many years ago. In light of the fact that many states flatly outlaw driving with a blood alcohol level of 0.08% or more -- regardless of whether the driver is under the influence -- it is common for prosecutors to obtain convictions in cases that were once borderline (0.08% to 0.12% alcohol levels). And if alcohol was involved in any way, prosecutors may be prohibited from bargaining the charge down to anything less than a "wet reckless." (Many jurisdictions prevent a plea bargain of "dry" reckless if alcohol was involved, whether or not the driver was under the influence or impaired.)

Traffic Ticket? Decide Whether to Fight in Traffic Court or Pay Up

There are two kinds of traffic tickets: Ones you can beat in traffic court and ones you can't. The problem is determining which kind you got. If it's your first ticket in ten years and you expect it will be another decade before you get another one, you may want to avoid this whole question, pay the fine, and move on. Or you may want to consider going to traffic school, which takes a day of your time but keeps you record clear. If you can't attend traffic school -- or choose not to -- you need to evaluate whether you have a winner or a loser, so you can develop the proper strategy to fight it in court.

Study the Law You Are Charged Under:

Believe it or not, cops sometimes don't know the exact wording of the law, and it is the exact wording of the law that is most important to you if you are going to fight your ticket. And many laws are often so convoluted that it's not uncommon to find, upon careful reading, that what you did was not, technically speaking, a violation of the exact words of the statute.

When trying to fight a ticket, ask yourself the question: "What are the elements (parts) of the offense I am charged with committing?"

For example, in most states, the law making U-turns illegal reads like this:

No person in a residential district shall make a U-turn when any other vehicle is approaching from either direction within 200 feet, except at an intersection when the approaching vehicle is controlled by an official traffic control device.

You should break this law down into its legal elements by drawing a line between each clause, like this:

No person in a residential district / shall make a U-turn / when any other vehicle is approaching from either direction within 200 feet / except at an intersection / when the approaching vehicle / is controlled / by an official traffic control device.

Focusing on each element of a law is often the key to unlocking an effective defense. That's because, to be found guilty of having made this illegal U-turn, the state must prove you violated each "element" or clause of the offense. In this case, the state would have to prove each of the following facts:

  • You were driving in a residential district.

  • You drove your vehicle in a 180-degree turn, or "U-turn."

  • Another vehicle was approaching within 200 feet or less, in front of or behind you.

  • An "official traffic control device" at an "intersection" was not controlling the vehicle approaching you.

If you can show that your conduct didn't violate even one element of a traffic law, you are home free. For example, if the area where you were ticketed was not a residential district, or the vehicle the officer claims was approaching was over 200 feet away, or you were at an intersection controlled by an "official traffic control device," you should quickly be found not guilty.

Will a judge really follow such a technical reading of the law?

You bet. This type of hyper-technical, word-by-word reading of statutes is the key skill all lawyers and judges learn in law school. In fact, they know of no other approach. This makes sense when you realize that the American legal system is built on the concept that you are innocent unless the government can prove you violated a law that prohibits clearly defined conduct.

Consider Other Viable Defenses Even if you can't challenge the law you are charged with violating, all is not lost. You should ask yourself some other questions that might open up a defense:

  • Was the officer's view of what occurred obstructed by other moving vehicles or stationary objects like trees, fences, or buildings? If so, this allows you to argue the officer could not have clearly seen the alleged offense and gives you an opening to sell your version of events to the judge.

  • Did the officer stop the right car? It is quite possible in heavy traffic for an officer to see a violation committed by one white minivan (a 1995 Plymouth Voyager, for example) and to stop another (an almost identical white 1994 Dodge Caravan) further down the road. Your ability to claim this happened goes way up if you can show that, because of a curve in the road, construction project, or just heavy traffic, the officer lost sight of the offending vehicle between the violation and pulling you over.

  • Were you charged with speeding when you were driving safely, even though you were driving over the speed limit? In about 20 states, the law says it's legal to drive slightly over the posted speed limit as long as you can prove conditions made it safe to do so.

  • Was there an actual, provable error in the officer's approach or methodology? In citing you for speeding, did the officer correctly pace your vehicle or properly use radar, laser, or VASCAR to establish your speed? (But realize that generalized statements about the possible inadequacies of radar or laser techniques almost never result in your beating a speeding ticket.)

  • Do any other legal defenses exist to the law you're charged with violating? For example, if you were charged with driving too slowly in the left lane of a multi-lane highway, in most states it is a legal defense that you were planning to turn left.

Defenses That Almost Never Fly

The defenses listed here don't usually work, so if this is all you've got, it's probably a waste of time to go to court (unless you're counting on the officer's not showing up, and you get lucky).

  • You claim you were honestly mistaken about the law (as opposed to a particular fact, as would be the case with a hidden stop sign). For example, if you tell the judge that you honestly thought it was okay to just slow down instead stopping at a blinking red light, his reply may be, "Sorry, ignorance of a law is no excuse."

  • You argue your violation didn't harm anybody. Sorry, you are still legally required to stop at a red light even if it's 3:00 a.m. and no other vehicle is moving within two miles. The fact that your illegal conduct was not dangerous is not a winning defense, except when you are cited for speeding in states where it can be legal to exceed the posted speed.

  • You complain, "The officer was picking on me." This is called "selective enforcement" and is often raised by a motorist who claims the ticketing officer ignored others who were also violating the law. It is almost impossible to win this one, since the law makes it plain that it does you no good to simply show that other drivers also violated the law and that the officer singled you out. To win with a "selective enforcement" defense, you have to take a huge additional step and show that the officer had a specific and improper motive to pick on you. If you had just won a libel case against him or had complained against him for an earlier incident, you might have a chance -- otherwise, forget it.

  • You tell a sympathetic story. The fact that your child, your mother, or your parakeet was ill will not get you off. At best, the judge may reduce your fine a little (especially if you throw in the fact that you have a low income and nine hungry mouths to feed).

  • You say, "The officer's lying." This is highly unlikely to result in your being found not guilty, at least without presenting any specifics to back up your contention.

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