Expert Advice > DUI/DWI
Criminal | DUI/DWI | Drugs | White Collar Crimes | Personal Injury | General Law
- If I am stopped for DUI, do I have to perform the field sobriety tests?
No. A person can always refuse to participate in law enforcement's field sobriety tests. If you do refuse, the Government can tell the jury at your trial that you refused to perform the tests. A person can also refuse to take a blood test if they have not twice been convicted of DUI in the last ten years. But again, the Government can inform the jury of your refusal. Also, if you refuse to take a blood test, your driver's license will be revoked for one year even if you are found not guilty of DUI.
- Can I be convicted of DUI fo sleeping in my vehicle?
Maybe. It has happened before. A person has been convicted of DUI when found sleeping behind the wheel of his parked vehicle even though the keys were not in the ignition. In South Dakota, a person is guilty of DUI if he is in "actual physical control" of a vehicle while intoxicated. All that is necessary to establish "actual physical control" of a vehicle is proof that vehicle was operable and that the defendant was in a position to manipulate the controls which would cause it to move.
- How much will a DUI cost me?
It depends on whether it is your first offense or not. Here are some of the costs commonly associated with a DUI conviction in Sioux Falls. Fine $350-750; Court Costs $45; Reimburse State for Cost of Blood Test $55; Substance Abuse Evaluation $40; Out-Patient Alcohol Treatment $700-1200; Interlock Breath Tester for Vehicle $80 installation fee, $60/month rental fee; Electronic Monitoring during House Arrest $10/day. You will also have attorney's fees and an increase in your insurance rates. If you are currently paying a premium rate, you can expect that to double. REMEMBER YOUR RIGHT TO REMAIN SILENT!
- Can a person be cahrged with DUI the day after a "hit and run" accident with a telephone pole even if no one actually saw him hi the telephone pole?
Sure, if the State had enough circumstantial evidence. For example, a witness hears a noise outside and looks to see a car driving away from a downed telephone pole. Police then locate the vehicle through its license number and find collision damage. The State then only has to prove the driver's identity and the driver's level of intoxication at the time of the crash. A bartender could provide this evidence. In most cases, however, people tell on themselves the minute police knock on their door and ask to see their vehicle. The State's case gets much easier at that point. REMEMBER YOUR RIGHT TO REMAIN SILENT!
- Why is it when you look in the court section of the paper you read about several people convicted of DUI-1st offense, but the fine and sentence is different from person to person?
Under state law, judges have wide discretion in sentencing a defendant, and they look at a number of factors in arriving at an appropriate sentence. The factors include: the nature of the offense; any injuries caused to others; the defendant's personal background, family history, substance abuse history, financial condition, prior criminal record, acceptance of responsibility, remorse, and prospect of rehabilitation; and the interest of the public in retribution and deterrence. Judicial discretion is a good thing. No one is in a better position to determine an appropriate sentence than a judge. No two crimes and no two defendants are the same.
- If a defendant is charged with DUI-3rd Offense, are his 2 prior DUI's admissible at trial to show that he has a propensity to drink and drive, and thus, must be guilty of the 3rd offense?
No. Evidence of prior crimes is not admissible at trial in order to show a defendant's bad character, or his propensity to commit crimes. The State must prove its case based on the facts of the current charge alone. The State can't argue that someone is obviously guilty of DUI because they have a long history of drinking and driving. While a person's criminal record is not admissible to prove guilt or innocence, it is one of the most important facts considered by the Judge at sentencing.
- If a person has 2 prior DUI's, are there ways to have the records sealed if a person meets certain criteria (like no future offenses for a certain amount of time) or is a person doomed to carry around this baggage on his record forever and have it show up on all future employment background checks?
Unfortunately, short of a pardon by the Governor, your "doomed." A pardon is the only way to have 2 prior DUI's removed from your record.
- The Attorney General has proposed a twice-a-day breathalyzer program, which is being implemented on a test basis in four South Dakota counties, including Minnehaha. Is the breathalyzer program being used as an alternative to jail sentences in DUI-2nd and DUI 3rd cases?
No. The daily breathalyzer program is only being used as a condition of pre-trial release to monitor those defendants who cannot otherwise satisfy the judge that they do not pose a danger to the community. Judges are still imposing jail sentences in almost all DUI-2nd and DUI-3rd cases.
- If I am stopped for DUI, do I have to perform the field sobriety tests?
No. A person can always refuse to participate in law enforcement's field sobriety tests. If you do refuse, the Government can tell the jury at your trial that you refused to perform the tests. A person can also refuse to take a blood test if they have not twice been convicted of DUI in the last ten years. But again, the Government can inform the jury of your refusal. Also, if you refuse to take a blood test, your driver�s license will be revoked for one year even if you are found not guilty of DUI.
- Can a park ranger arrest you for DUI in a boat?
Yes. State park rangers and conservation officers have the same powers of arrest as a sheriff or a constable, and the same rules for drinking and driving in a car apply to boats. It is a Class 1 misdemeanor to operate a boat on the public waterways of this state if your blood alcohol content is 0.08 % or more, or if you are under the influence of alcohol.
- Can a blood test determine your blood alcohol content (BAC) with 100% accuracy?
No, not 100%. The real issue in DUI cases is determining a person's BAC at the time they were driving. A person's BAC is not the same at the police station an hour after an arrest as it was at the time they were driving. A person's BAC is constantly changing depending on a number of factors. Factors include when the person took his last drink, what he drank, how fast or slow he drank it, the size of the person, what the person last had to eat and when, as well as several other factors. Government chemists attempt to arrive at a person's BAC at the time of arrest by "back extrapolating," but it is not an exact science.
- Can a person be convicted of DUI for riding a horse while intoxicated?
Yes, but only for a couple more months. A new law will go into effect July 1, 2006, excluding horses and other animals from the DUI laws. For those of you who like to party and are looking for a new "legal" form of transportation, call Cory Sargent, Sargent Quarter Horses, Clearfield, SD (605) 557-3290.
- How will my Commercial Driver's License be affected if I am convicted of DUI?
The law regarding Commercial Driver's Licenses (CDLs) changed in September 2005 due to a mandate from the federal government. Now, if you are convicted of a first offense DUI, your Commercial Driver's License (CDL) will be revoked for a minimum of one year even if you are driving a non-commercial at the time of your DUI arrest. A second or subsequent DUI conviction results in a lifetime revocation of your CDL.
- Can a police officer legally stop me for turning onto an alternate road to avoid going through a sobriety check-point/road-block?
Yes. The South Dakota Supreme Court has held that a police officer's observation of a vehicle turning around to avoid going through a sobriety roadblock constituted a reasonable suspicion to stop a motorist and was thus constitutionally permissible.
- I am a farmer who has had my driver's license revoked and I don't have a work permit. Can I drive my tractor to and from the field on the public road?
Yes. You don't need a driver's license to drive a farm tractor or implement of husbandry to or from the home farm buildings to or from any adjacent or nearby farmland for the exclusive purpose of conducting farm operations." Also, you don't need a driver's license to drive any vehicle on your private property. You can also drive a four-wheeler without a license so long as you stay in the ditch and only go on the road to cross.
- Can a person be convicted of DUI for riding a bicycle while intoxicated?
Not any more. A new law just took effect July 1, 2006, excluding bicycles, tricycles, all unpowered foot-pedal conveyances, horses and other animals from the DUI laws.
- Have field sobriety tests been scientifically tested for accuracy?
The National Highway Traffic Safety Administration (NHTSA) has done studies over the last 30 years to determine the accuracy of the various sobriety tests used by police. Based on its research, NHTSA has endorsed 3 tests � the walk-and-turn test (WAT), the one-leg-stand test (OLS), and the horizontal gaze nystagmus test (HGN). When performed correctly by the arresting officer, these tests have claimed reliability rates of 68% for WAT, 65% for OLS, and 77% for HGN. Cumulatively, if all are done correctly, up to 83% correlation to a BAC of 0.10% or higher may be expected. The use of other tests is discouraged.
- This holiday season I have seen multiple cartoons and commercials depicting Santa Claus and his sleigh stopped for DUI. Could Santa really be convicted of DUI in South Dakota?
If depends on whether Ol' St. Nick was riding in the sleigh or riding on Rudolph's back. He is guilty of DUI if while under the influence of alcohol, he is in actual physical control of a vehicle, to wit: his sleigh. However, our law provides that any person "riding a horse or other animal" is excluded from the DUI laws. As long as he was riding a reindeer instead of in his sleigh, he would not be guilty of DUI.
- What happens to my driver's license if I am convicted of DUI-1st Offense?
Your driving privileges will be revoked for at least 30 days, but not more than 1 year. The Court generally authorizes a restricted driving permit during the revocation period for you to drive to work, school or counseling. If your blood alcohol level (BAC) was 0.17 or higher, you will have to completely abstain from the use of alcohol during the period of your work permit, and if the governor signs House Bill 1072, you will have to report twice a day to the sheriff's office and submit to a breathalyzer to ensure you are not drinking. You will have to do this every day you have your work permit.
- I was stopped and arrested for DUI. They didn't give me a blood test until 2 hours after I was arrested. Is the test admissible in court?
The blood test would be admissible if the State introduces evidence that would enable the jury to extrapolate the test results back to the time you were driving. The State usually has a chemist offer an opinion stating what the driver's blood alcohol level would have been at the time he was driving based on several assumed factors. The accuracy of these assumed factors can have a big effect on the accuracy of the expert's testimony. The factors include the person's weight, what the person was drinking, when the person had his last drink, when the person last ate and what he ate, whether the person has been in accident or suffered a trauma and any other special medical condition the person may have.
- If I am stopped for DUI, do I have to perform the field sobriety tests?
No. A person can always refuse to participate in law enforcement's field sobriety tests. If you do refuse, the Government can tell the jury at your trial that you refused to perform the tests. A person can also refuse to take a blood test if they have not twice been convicted of DUI in the last ten years. But again, the Government can inform the jury of your refusal. Also, if you refuse to take a blood test, your driver's license will be revoked for one year even if you are found not guilty of DUI.
- Can I be convicted of DUI fo sleeping in my vehicle?
Maybe. It has happened before. A person has been convicted of DUI when found sleeping behind the wheel of his parked vehicle even though the keys were not in the ignition. In South Dakota, a person is guilty of DUI if he is in "actual physical control" of a vehicle while intoxicated. All that is necessary to establish "actual physical control" of a vehicle is proof that vehicle was operable and that the defendant was in a position to manipulate the controls which would cause it to move.
- How much will a DUI cost me?
It depends on whether it is your first offense or not. Here are some of the costs commonly associated with a DUI conviction in Sioux Falls. Fine $350-750; Court Costs $45; Reimburse State for Cost of Blood Test $55; Substance Abuse Evaluation $40; Out-Patient Alcohol Treatment $700-1200; Interlock Breath Tester for Vehicle $80 installation fee, $60/month rental fee; Electronic Monitoring during House Arrest $10/day. You will also have attorney's fees and an increase in your insurance rates. If you are currently paying a premium rate, you can expect that to double. REMEMBER YOUR RIGHT TO REMAIN SILENT!
- Can a person be cahrged with DUI the day after a "hit and run" accident with a telephone pole even if no one actually saw him hi the telephone pole?
Sure, if the State had enough circumstantial evidence. For example, a witness hears a noise outside and looks to see a car driving away from a downed telephone pole. Police then locate the vehicle through its license number and find collision damage. The State then only has to prove the driver's identity and the driver's level of intoxication at the time of the crash. A bartender could provide this evidence. In most cases, however, people tell on themselves the minute police knock on their door and ask to see their vehicle. The State's case gets much easier at that point. REMEMBER YOUR RIGHT TO REMAIN SILENT!
- Why is it when you look in the court section of the paper you read about several people convicted of DUI-1st offense, but the fine and sentence is different from person to person?
Under state law, judges have wide discretion in sentencing a defendant, and they look at a number of factors in arriving at an appropriate sentence. The factors include: the nature of the offense; any injuries caused to others; the defendant's personal background, family history, substance abuse history, financial condition, prior criminal record, acceptance of responsibility, remorse, and prospect of rehabilitation; and the interest of the public in retribution and deterrence. Judicial discretion is a good thing. No one is in a better position to determine an appropriate sentence than a judge. No two crimes and no two defendants are the same.
- If a defendant is charged with DUI-3rd Offense, are his 2 prior DUI's admissible at trial to show that he has a propensity to drink and drive, and thus, must be guilty of the 3rd offense?
No. Evidence of prior crimes is not admissible at trial in order to show a defendant's bad character, or his propensity to commit crimes. The State must prove its case based on the facts of the current charge alone. The State can't argue that someone is obviously guilty of DUI because they have a long history of drinking and driving. While a person's criminal record is not admissible to prove guilt or innocence, it is one of the most important facts considered by the Judge at sentencing.
- If a person has 2 prior DUI's, are there ways to have the records sealed if a person meets certain criteria (like no future offenses for a certain amount of time) or is a person doomed to carry around this baggage on his record forever and have it show up on all future employment background checks?
Unfortunately, short of a pardon by the Governor, your "doomed." A pardon is the only way to have 2 prior DUI's removed from your record.
- The Attorney General has proposed a twice-a-day breathalyzer program, which is being implemented on a test basis in four South Dakota counties, including Minnehaha. Is the breathalyzer program being used as an alternative to jail sentences in DUI-2nd and DUI 3rd cases?
No. The daily breathalyzer program is only being used as a condition of pre-trial release to monitor those defendants who cannot otherwise satisfy the judge that they do not pose a danger to the community. Judges are still imposing jail sentences in almost all DUI-2nd and DUI-3rd cases.
- If I am stopped for DUI, do I have to perform the field sobriety tests?
No. A person can always refuse to participate in law enforcement's field sobriety tests. If you do refuse, the Government can tell the jury at your trial that you refused to perform the tests. A person can also refuse to take a blood test if they have not twice been convicted of DUI in the last ten years. But again, the Government can inform the jury of your refusal. Also, if you refuse to take a blood test, your driver�s license will be revoked for one year even if you are found not guilty of DUI.
- Can a park ranger arrest you for DUI in a boat?
Yes. State park rangers and conservation officers have the same powers of arrest as a sheriff or a constable, and the same rules for drinking and driving in a car apply to boats. It is a Class 1 misdemeanor to operate a boat on the public waterways of this state if your blood alcohol content is 0.08 % or more, or if you are under the influence of alcohol.
- Can a blood test determine your blood alcohol content (BAC) with 100% accuracy?
No, not 100%. The real issue in DUI cases is determining a person's BAC at the time they were driving. A person's BAC is not the same at the police station an hour after an arrest as it was at the time they were driving. A person's BAC is constantly changing depending on a number of factors. Factors include when the person took his last drink, what he drank, how fast or slow he drank it, the size of the person, what the person last had to eat and when, as well as several other factors. Government chemists attempt to arrive at a person's BAC at the time of arrest by "back extrapolating," but it is not an exact science.
- Can a person be convicted of DUI for riding a horse while intoxicated?
Yes, but only for a couple more months. A new law will go into effect July 1, 2006, excluding horses and other animals from the DUI laws. For those of you who like to party and are looking for a new "legal" form of transportation, call Cory Sargent, Sargent Quarter Horses, Clearfield, SD (605) 557-3290.
- How will my Commercial Driver's License be affected if I am convicted of DUI?
The law regarding Commercial Driver's Licenses (CDLs) changed in September 2005 due to a mandate from the federal government. Now, if you are convicted of a first offense DUI, your Commercial Driver's License (CDL) will be revoked for a minimum of one year even if you are driving a non-commercial at the time of your DUI arrest. A second or subsequent DUI conviction results in a lifetime revocation of your CDL.
- Can a police officer legally stop me for turning onto an alternate road to avoid going through a sobriety check-point/road-block?
Yes. The South Dakota Supreme Court has held that a police officer's observation of a vehicle turning around to avoid going through a sobriety roadblock constituted a reasonable suspicion to stop a motorist and was thus constitutionally permissible.
- I am a farmer who has had my driver's license revoked and I don't have a work permit. Can I drive my tractor to and from the field on the public road?
Yes. You don't need a driver's license to drive a farm tractor or implement of husbandry to or from the home farm buildings to or from any adjacent or nearby farmland for the exclusive purpose of conducting farm operations." Also, you don't need a driver's license to drive any vehicle on your private property. You can also drive a four-wheeler without a license so long as you stay in the ditch and only go on the road to cross.
- Can a person be convicted of DUI for riding a bicycle while intoxicated?
Not any more. A new law just took effect July 1, 2006, excluding bicycles, tricycles, all unpowered foot-pedal conveyances, horses and other animals from the DUI laws.
- Have field sobriety tests been scientifically tested for accuracy?
The National Highway Traffic Safety Administration (NHTSA) has done studies over the last 30 years to determine the accuracy of the various sobriety tests used by police. Based on its research, NHTSA has endorsed 3 tests � the walk-and-turn test (WAT), the one-leg-stand test (OLS), and the horizontal gaze nystagmus test (HGN). When performed correctly by the arresting officer, these tests have claimed reliability rates of 68% for WAT, 65% for OLS, and 77% for HGN. Cumulatively, if all are done correctly, up to 83% correlation to a BAC of 0.10% or higher may be expected. The use of other tests is discouraged.
- This holiday season I have seen multiple cartoons and commercials depicting Santa Claus and his sleigh stopped for DUI. Could Santa really be convicted of DUI in South Dakota?
If depends on whether Ol' St. Nick was riding in the sleigh or riding on Rudolph's back. He is guilty of DUI if while under the influence of alcohol, he is in actual physical control of a vehicle, to wit: his sleigh. However, our law provides that any person "riding a horse or other animal" is excluded from the DUI laws. As long as he was riding a reindeer instead of in his sleigh, he would not be guilty of DUI.
- What happens to my driver's license if I am convicted of DUI-1st Offense?
Your driving privileges will be revoked for at least 30 days, but not more than 1 year. The Court generally authorizes a restricted driving permit during the revocation period for you to drive to work, school or counseling. If your blood alcohol level (BAC) was 0.17 or higher, you will have to completely abstain from the use of alcohol during the period of your work permit, and if the governor signs House Bill 1072, you will have to report twice a day to the sheriff's office and submit to a breathalyzer to ensure you are not drinking. You will have to do this every day you have your work permit.
- I was stopped and arrested for DUI. They didn't give me a blood test until 2 hours after I was arrested. Is the test admissible in court?
The blood test would be admissible if the State introduces evidence that would enable the jury to extrapolate the test results back to the time you were driving. The State usually has a chemist offer an opinion stating what the driver's blood alcohol level would have been at the time he was driving based on several assumed factors. The accuracy of these assumed factors can have a big effect on the accuracy of the expert's testimony. The factors include the person's weight, what the person was drinking, when the person had his last drink, when the person last ate and what he ate, whether the person has been in accident or suffered a trauma and any other special medical condition the person may have.
