What is OUI?
OUI refers to Operating under the Influence and is sometimes referred to as DUI (driving under the Influence), DWI (driving while intoxicated), or OWI (operating while intoxicated).
Who can get an OUI?
Anyone! Any person, whether over or under the age of 21, may be arrested for OUI if they are driving while under the influence of drugs or alcohol. In some states, you can receive an OUI while driving a boat, lawnmower, or bicycle, or simply for sitting or lying in your car.
How is an OUI Determined?
Police officers are specially trained to recognize drivers who show those signs of driving drunk. Such signs they look for include:
- Weaving
- Swerving
- Drifting
- Tailgating
- Breaking erratically
- Driving into traffic
Speeding, consequently, is not a sign of driving drunk as it requires more concentration and stability.
What is Blood Alcohol Content (BAC)?
BAC refers to how much alcohol is present in your blood stream and measured as a percentage. In all 50 states it is a crime to drive or otherwise operate a vehicle with a BAC at or above 0.08%. If you are under 21, the level is 0.02%.
How does a breathalyzer work?
When you blow into the mouthpiece, the device measures the content of alcohol in your breath and estimates your blood alcohol content. If your BAC registers .08% or more, you may be arrested for DUI.
Are they Foolproof?
No, breathalyzers are usually inadequate
- Estimates from a breathalyzer are based on a hypothetical “average person.” If your measurements differ from that person, the machine may estimate your BAC higher than it really is.
- Some non-intoxicating substances, such as mouth wash or other breath fresheners can cause breathalyzers to register false positives.
- It may be possible to prove that despite a BAC of .08% or more that you were not impaired. If so, you may avoid an OUI conviction.
- Conversely, if the state can prove you were impaired despite a reading below .08%, you may be convicted of OUI.
What are Field Sobriety Tests?
These are tests you must perform in front of the police officer to determine your intoxication level. These involve no machines or technology. They include
- One legged stand: balance while standing on one leg and slowly counting to 30
- Horizontal Gaze Nystagmus: officer observes your eye movement while tracking an object such as a pencil
- Walk and turn: walk in a straight line heel-to-toe
Can I refuse the field sobriety tests? Should I?
Unlike the chemical tests for determining BAC you are not legally required to submit to field sobriety tests. You may, and should respectively decline the field sobriety tests. Remember, being rude or abusive, it will only hurt you, always remain calm, courteous and polite.
Don’t I have the right to an attorney before these tests?
No, your right to an attorney does not become available until after you are formally arrested or taken into custody of the police department. However, if at any time during the stop you feel you need an attorney, it is a good idea to ask for one. If you do ask for an attorney, listen to what the officer says in response, this could be very important if he misrepresents the law to you.
What if the police officer asks me if I have been drinking?
The best response is to say nothing at all. Again, do not be rude; simply reply “I would like to speak to an attorney before I answer any questions.” However, the police officer does have a right to certain information such as your name, address, and date of birth.
When the officer begins to ask you questions, ask for an attorney. He will most like respond that you do not have the right to an attorney and ask you to answer the question. At that point, you should respectfully decline to answer any questions. A good attorney will be able to give a jury a reason for your declining to answer.
What will it cost for me to hire an attorney?
The fee you pay will vary from attorney to attorney. Often the fee reflects the reputation and experience of the attorney. However, a fee can also be higher based on an attorney’s geographic location, with bigger city locales associated with higher fees. These fees may vary by upwards of thousands of dollars.
When considering an attorney’s fee know that the following are often considered in their determination:
- The amount of time an attorney will spend on your individual case
- How many charges there are against you and whether they are misdemeanors or felonies
- Whether or not this is a second or third OUI, or your first
- Other costs incurred such as those for independent blood analysis, witness fees, and other fees such as service of subpoenas
- The additional costs of administrative license suspension procedures.
Whatever the cost, you should always ask the attorney for a written agreement and understand all the terms of his representation.
What is the punishment for drunk driving?
Generally, the first time you are convicted of an OUI (Operating under the Influence) the penalty involves a fine, license suspension, attendance at an OUI education course for up to 21 weeks, and 1 year probation. For a second offense, punishment may include 2 weeks in a treatment facility and 2 years probation. For more information see
What is a Continuance Without a Finding?
This means that you have pled guilty to a first offense OUI. It is not a conviction, but it does carry the same penalties as a guilty finding. If you get another OUI offense, it will be treated as a first offense causing enhanced penalties. This never comes off your record.
What is a “rising BAC” defense?
This defense is based on the idea that it is illegal to have a certain BAC at the time you drove.
If the chemical test taken to determine your BAC was performed anytime after you were initially stopped then the results may not be representative of your BAC while driving.
This is due to the fact that it takes between 45 minutes and 3 hours for alcohol to actually be absorbed by your system. Therefore, your BAC will continue to rise even after you have been stopped.
For example, if you are stopped, then a blood test is performed an hour later which reads a BAC of .10%, your BAC at the time you were driving may have only been .06%. Thus, even though the chemical test shows a blood alcohol content above the legal limit, your BAC at the time you were driving was below.
