If I'm stopped by a police officer and he asks me if I've been drinking, what should I say?

You have the absolute right to remain silent. You are not required to answer potentially incriminating questions. A polite "I would like to speak with an attorney before I answer any questions" is a good reply. Any admission of consumption of alcoholic beverages will be used by the police as evidence that you were under the influence.

What should I do if I'm asked by an officer to submit to roadside field sobriety tests?

There are a wide range of standard field sobriety tests (SFSTs), including the walk and turn test, finger to nose, one leg stand, horizontal gaze nystagmus(pen light test), alphabet recitation, etc. Most officers will use a set battery of three to five such tests.

Unlike the chemical test, where refusal to submit may have serious consequences, there are no penalties for your refusal to submit or participate in any SFSTs. Remember, if you attempt to participate in the SFSTs, any and all deviations or missteps will be used by the officer as evidence that you were under the influence. Thus, in most cases, a polite refusal may be appropriate.

Do I have the right to speak to an attorney before I decide if I will submit to a breath test or other chemical test?

You have the absolute right to speak to an attorney before you answer any questions or submit to any tests. However, if you refuse to submit to a test until you can speak to an attorney, the officer will consider it as if you had refused to submit to the test. The officer will not allow the opportunity to submit to a breath or blood test after you have spoken to an attorney.

If I am stopped by a police officer and asked to take a breath or other chemical test, what are the consequences if I refuse?

There are several adverse consequences to refusing to submit to a breath or blood test:

• Your First Refusal may result in a 180-day suspension with eligibility for hardship license after first 90 days.
• Your Second Refusal will get you 545 days without eligibility for hardship license.

Thus, the decision is one of weighing the likelihood of an incriminating blood-alcohol result against the consequences of refusing.

The officer took my license and served me with a notice of suspension after the breath test: What can I do now?

The law in Louisiana provides for immediate suspension and confiscation of the license if the breath test result is above the legal limit (or, in the case of a blood or urine test, if the officer reasonably believes the result will be above the limit) or the individual refuses to take a chemical test.

WARNING: Be aware of a 15-day deadline for submitting the required paperwork to the Louisiana Department of Public Safety and Corrections to request a hearing on the suspension of your driver’s license and to get an extension of the temporary license.

What is the punishment for drunk driving in Louisiana?

• For a DWI First Offense, the fine ranges from $300 to $1,000 (plus court costs and other fees), and the jail time can be 10 days to 6 months (all can be suspended.) You will also receive 32 community service hours, ½ of which must be done in a litter abatement program. A substance abuse evaluation and driver improvement school is required. In the event that your BAC is over .15, you will receive a minimum of 48 hours in jail and a license suspension of 90 days.
• For a DWI Second Offense, the fine ranges from $750 to $1,000 (plus court costs and other fees), and the jail time can be 30 days to 6 months (all but 48 hours of which can be suspended). Your community service time will be 240 hours and you will be required to attend a substance abuse evaluation and driver improvement school. In the event that your BAC is over .15, the minimum mandatory jail time is 96 hours, and your Driver's License will be suspended for 1 year.
• Third and fourth offenses are felonies and involve the risk of substantial jail time.

Can I represent myself? What can a lawyer do for me?

You can represent yourself -- although it is not a good idea. Would you attempt to perform a root canal on yourself? DWI law is a very complex field with increasingly harsh consequences. There are many complicated procedural, evidentiary, constitutional, sentencing and administrative license issues.

A qualified attorney, like the attorneys at the Law Offices of Ossie Brown, can review the case for defects, suppress evidence, compel discovery of such things as calibration and maintenance records for the breath machine, have blood samples independently analyzed, negotiate for a lesser charge or reduced sentence, obtain expert witnesses for trial, and contest the administrative license suspension.

What will it cost to get a lawyer?

Like any service, legal fees vary by the ability, reputation and experience of the lawyer you hire.

In Baton Rouge, Louisiana the normal range for a skilled DWI defense lawyer is from $2,500 to $10,000, depending on the level of offense(1st, 2nd, 3rd, etc.)

Factors that may cause the fee to be increased or decreased include:

• Is the offense a misdemeanor or felony?
• If prior convictions are alleged, the procedures for attacking them may add to the cost.
• The fee may or may not include trial or appeals.
• Costs such as expert witness fees, independent blood analysis, service of subpoenas, etc., may be extra.
• Generally, what defenses are there in a DWI case?
  
  • Proof of Operation of a Motor Vehicle - Intoxication is not enough: the prosecution must also prove that the defendant was operating a motor vehicle. This may be difficult if, as in the case of some accidents, there are no witnesses to his being the driver of the vehicle.
  • Probable cause - Evidence will be suppressed if the police officer did not have legal cause to (a) stop, (b) detain, and (c) arrest. Sobriety roadblocks present particularly complex issues.
  • Miranda - Incriminating statements may be suppressed if warnings were not given at the appropriate time.
  • Implied consent warnings - If the officer did not advise you of the consequences of refusing to take a chemical test, or gave it incorrectly, this may affect admissibility of the test results -- as well as the license suspension imposed by the motor vehicle department.
  • "Under the influence/Impairment" - The officer's observations and opinions as to intoxication can be questioned -- the circumstances under which the field sobriety tests were given, for example, or the subjective (and predisposed) nature of what the officer considers as "failing".
  • Blood-alcohol concentration - There exist a wide range of potential problems with blood, breath or urine testing. "Non-specific" analysis, for example: most breath machines will register many chemical compounds found on the human breath as alcohol. These and other defects in analysis can be brought out in cross-examination of the state's expert witness, and/or the defense can hire its own forensic chemist.
  • License suspension/administrative hearings - A number of issues can be raised in the context of an administrative hearing challenging the proposed suspension of driving privileges.
  • What do police officers look for when searching for drunk drivers on the highways?
    The following is a list of symptoms in descending order of probability that the person observed is driving while intoxicated. The list is based upon research conducted by the National Highway Traffic Administration:
    • Turning with a Wide Radius
    • Straddling Center of Lane Marker.
    • "Appearing to be drunk"
    • Almost Striking Object or Vehicle
    • Weaving
    • Driving on Other Than Designated Highway
    • Swerving
    • Speed More Than 10 mph Below Limit
    • Stopping without Cause in Traffic Lane
    • Following Too Closely
    • Drifting
    • Tires on Center or Lane Marker
    • Braking Erratically
    • Driving into Opposing or Crossing Traffic
    • Signaling Inconsistent with Driving Actions
    • Slow Response to Traffic Signals
    • Stopping Inappropriately (Other than in Lane)
    • Turning Abruptly or Illegally
    • Accelerating or Decelerating Rapidly