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Traffic/D.U.I

 

Each of you at one time or another has been driving down the street minding your own business when suddenly in your rearview mirror you see flashing police lights. Quickly, you look down at your speedometer and you notice you're going fifteen miles an hour over the speed limit.

After the police officer has written you a ticket for speeding, your thoughts now turn to what effect this will have on your insurance rates as well as your driving privileges.

Is it ever a defense to a traffic ticket if you tell the judge that you did not intend to break the speed limit?

Nice try, but that won't work. Traffic violations are what are known as general intent crimes. A general intent crime does not require a prosecutor to prove intent on the part of the defendant.

It is sufficient if it is proved that the ordinance was violated. In other words, the police officer appears in court and testifies that he or she observed, either through a radar detector or visual observation, that you were going faster than the speed limit. If the court accepts the officer's version, you lose. A specific intent crime is one that requires the element of intent to be proven before there can be a conviction.

If a police officer uses a radar gun to determine how fast I was going, can I challenge the validity of the gun's findings?

Yes. Radar guns today are much more sophisticated than the ones that were used five or ten years ago. The use of lasers and other devices have made it much more difficult to contest their findings. Nevertheless, depending on the make and model of the radar gun, there are often questions that can be posed to an officer to determine whether or not the gun has been properly maintained, has received proper calibration, etc. It is often best to retain an attorney who is well-versed in defending traffic matters so that he or she can pose the right questions and attack the validity of the radar gun's findings.

If I get a speeding ticket shouldn't I just go ahead and pay it?

Whether or not you want to pay your speeding ticket is strictly up to you. But before a speeding ticket is paid and you admit to the infraction you have been charged with, it's often best to contact an attorney to determine whether or not the ticket will be construed as a moving violation, and, if so, what effect it will have on your driving privileges. Many states employ a point system and after a certain number of points have been accumulated, driving privileges can be suspended or revoked. Also, moving violations are a matter of public record and are reported to insurance companies, which often increase the insurance premium based on an individual's driving record.

Often, a prosecutor can be approached and a plea bargain can be entered where an additional fine is paid and the charge is reduced to a non-moving violation so it will not result in additional points on your driving record or affect your driving privileges. Whether or not the prosecutor will enter into such an agreement depends on a variety of factors, most importantly your previous driving record.

DRIVING UNDER THE INFLUENCE (D.U.I.)

Drunk driving, also known as driving under the influence or driving while intoxicated or impaired, is a serious national problem. Each year thousands of individuals are injured and killed because of drunk drivers. It is one of the leading causes of death in our society.

For years, having a few drinks and climbing behind the wheel was condoned, not only socially, but legally as well. The legal limit for what was considered intoxicated or impaired under the law was often as high as .15 blood alcohol content (BAC). Today, because of changing attitudes brought about by groups such as Mothers Against Drunk Driving (MADD), the BAC limit has now been reduced, in some states, to as low as .05 or .08. Depending on one's body size, that translates to very little alcohol before you are considered legally impaired.

What can I do to avoid getting a D.U.I. or a D.W.I.?

Easy: don't drink and drive. If you feel the need to drink, take a cab or give your keys to a friend or family member to serve as your designated driver.

What typically occurs when a person is stopped for driving under the influence?

Typically, an officer will decide to stop a vehicle that appears to be driving erratically. Once the vehicle has been stopped, the officer can request that the driver leave the vehicle and undergo a field sobriety test. This type of test involves walking a straight line, various balancing tests to determine if your equilibrium and balance have been affected by alcohol, as well as an interview of the driver. Often the interview will reveal alcohol on the breath of the driver, slurred speech, bloodshot eyes, inability to maintain one's balance, and mood swings that may reveal anger flashes, unusual giddiness or crying.

Once the officer has decided that the driver of the vehicle has ingested alcohol the officer may, depending on the law of that state, administer a breathalyzer test to determine whether or not there is, in fact, any alcohol in the driver's system. This will be done at the site or later at the police station after the individual has been placed under arrest. A breathalyzer test will allow the officer to determine the blood alcohol content of the driver. This evidence, combined with the officer's observation of the driver, often provides very compelling evidence at trial.

What if I don't want to take a breathalyzer test?

If an individual refuses to take a breathalyzer test, it may result, depending on the law in that state, in an immediate suspension of driving privileges, regardless of whether or not there is a conviction on the subsequent D.U.I. charge.

Are there any defenses available when someone is charged with driving under the influence?

Yes. The burden, as in all criminal matters, is on the state to prove its case. The state must prove that the driver was in fact impaired. If there is no blood alcohol content test, if the test results are inconclusive, if the test was administered improperly, or if the test results do not provide the requisite legal limit to be considered impaired, the state's case can be attacked. If an individual is taking medication that affects his or her ability to drive but has not been drinking alcohol, in certain states that might be a defense. In other states it may not be a defense, because that state's statute might be read broadly enough to include any type of impairment that affects one's ability to normally operate an automobile.

Some states allow for deferred adjudication for first-time offenders. In those states that allow for this or a similar procedure, the state may provide that an individual will be allowed to rehabilitate or change his or her behavior as opposed to being punished. In other states, prosecutorial discretion, which is the right of the prosecutor to negotiate some type of plea bargain with the defendant, has been eliminated by law. In those as well as other states, first-time offenders may be subject to mandatory jail time, a suspension or limitation of driving privileges, as well as a hefty fine.

Often, a second D.U.I. charge will result in longer jail time, suspension of driving privileges and a much larger fine. Remember, if you find yourself in the unfortunate situation where you have been charged with a serious offense such as driving under the influence, it is always best to immediately seek legal counsel so that he or she can apprise you of the law in your state.