Category Archives: DUI


Some private attorneys have a tendency to put on a show. They seem to feel like their clients want to see movie lawyers who are brash and confrontative with the judges.  Some of them remind me of bantam roosters or fighting cocks in their posturing.

The other day, a private attorney representing a young man whose parents sat behind them demanded of the judge:

“Am I to understand that Your Honor is ruling that simply because my client exercised his constitutional right to not testify against himself by refusing to submit to the breathalyzer test, that he is more likely to commit a violent offense, and therefore deserves to have bail set rather than be released on his personal recognizance?!”

Judges are used to these lawyers, and never take the bait, in my experience. They don’t descend into argument with them, or fall into the temptation of scolding them. They seem to simply wave them aside like so many fruit flies and make their record for any potential future appeals.

“No, counsel, I am basing my ruling on the fact that your client has a prior history. That your client’s history extends back to before he was old enough to legally drink.  That he was at a frat party – where he lived – and chose to leave his home, in order to drive drunk. That he appears to have a serious problem with alcohol already, at his young age. That he hit a police patrol car in attempting to elude the police once they put their lights and sirens on. That with someone like him who has less self-control we need to take extra precautions to safeguard the community. That is why I am ordering bail in the amount of $25,000.  And I hope that you will take the time, counsel, to fully discuss with your client the consequences of not following the conditions of his release.”



After my latest post with a drug court graduate’s letter to his mother, a dear and sensitive friend shared with me his experience in witnessing a convicted drunk driver giving his speech about killing someone on the road.

This man had crossed the center line and killed a teen driver, and he was never going to forget it.  He stood crushed, trying to talk about the unthinkable: causing the death of an innocent young person.  He could never go back in time and change that outcome.  He could never atone for it.  Because nothing he could ever do would make up for it.  Nothing he could ever do would bring his balance sheet to a positive number.  He was now a killer, and he would die a killer.  Yet there he was, out of prison now, trying to use his story to warn others, to hopefully save them from both causing and experiencing suffering without end.

As he spoke, an older woman stood at his side.  She was tearful, too.  At times, she would touch his back or show him some kind of support.  It seemed to bolster him, so he could keep talking through his tears, keep sharing his story – his warning tale.  When he was done, he turned to her.  Then he stepped aside, and she took over the podium.  Now the drunk driver, the killer, was standing in support.   What was this older woman going to say?  Was she going to say how this was her son, and she shared his guilt, for not having intervened with his early drinking?  No.  She was not his mother.

She was the mother of the teenage girl this man had killed.  She was the mother of the crime victim.  And she was standing with the criminal, the convict, who was supporting her as she spoke in her turn of losing her daughter, the light of her life.  And how she misses her girl every single day, and always will.  How she looks forward to dying, on the slender hope that she might see her baby again.  How some days, even now after a decade, she wishes it could come soon.

She reiterates her plea that no one in this room cause the kind of suffering that she has gone through.   At the very end, the man adds that his eight years in prison were nothing compared to his inner suffering.  “I will carry this with me to the day I die, and if there is an afterlife, into the beyond.  I can never, never make it go away!  Please do what I wish I could have done – what I would give anything to go back in time and repair – hand somebody your car keys, for God’s sake!  Better yet, get sober!  Please!  Don’t do what I did to this family!”

They move off the podium and go sit together in the front row, still supporting each other in their shared grief over a single event that changed both their lives forever.

There are several programs around the country to set up reconciliations, in which a crime victim gets the chance to confront the criminal, and the criminal may get the chance to offer an apology or regrets.  I find it amazing that any crime victim would be brave enough to do this.  I would think that very few people would even consider talking to the criminal, especially a random stranger.  And to build any kind of relationship out of that pain seems impossible.  And astounding.  How many of us could stand there beside someone who killed a family member, and give comfort?  How many of us could take comfort there?

I know someone who lost family members in an accident like this, and she refused to meet with the driver when he requested it.  She didn’t want to risk bringing him any comfort or closure, she said, because she was never going to get any.  And who can blame her?What happened was inexorable and merciless, and she in turn has zero desire to make it easy on anyone else, especially the killer.

Each individual interaction we have holds the capacity to transform both parties.  When one person does something to another, both are changed.  And so are their loved ones.  We are so interconnected, like it or not.  No one can get back to exactly where they were before an event like this.  Moving forward through forgiveness is something no one can demand or even suggest to a grieving family member.  But for this remarkable mother, I feel sure that what she is doing has been a great healing for herself, her family, and her community.  And an act of incredible love and courage.


Few people know that in many states, being in physical control of a vehicle, even when it is not running, is a crime with the same penalties as a DUI (Driving Under the Influence).  The question of whether one is “in physical control” is not clearly defined in the statutes.  The basic idea is whether the person is in a position to drive off while still drunk.  This is a delicate matter, as we cannot punish people for crimes they have not committed.  So states added “physical control” as a way to criminalize sitting in your car.  Various judges have ruled that guilt depends on “the totality of the circumstances” so the jury ends up deciding as a matter of fact, not law, whether the particular would-be driver was in physical control of the vehicle.

Let’s take one case.  Was the person under the influence?  Yes.  Were they in the driver’s seat?  Yes.  Keys in ignition?  Yes.  Car running?  No.  What were they doing?  Sleeping.  So how did the police even find them?  A concerned neighbor called to report someone slumped over the wheel of a car.  They gave a description of the car and the license plate.  They gave the location, and the police came to do a welfare check.

The rest is police report history.  You can imagine it includes all the regulars.  While approaching vehicle, this officer noticed a strong odor of alcohol coming from open window.  Suspect fumbled around looking for items in car, which (legally) gave rise to officer concern for safety, in turn allowing officer to have suspect leave car, and to detain for investigation.  Officer then notes bloodshot, watery eyes, unsteady gait, and more.   Suspect is arrested for Physical Control.

But wait.  There is a defense to Physical Control.  It is called “safely off the roadway.”  If a person causes their vehicle to be safely off the roadway, even if they are drunk and in apparent possession and control of a vehicle, if the jury believes it is more likely than not that they were safely off the roadway, then they are not guilty of the crime.

There is an obvious policy reason for this, just like most governments finally decriminalized abandoning babies, so that desperate mothers could leave their newborns on a doorstep instead of killing them or leaving them in a dumpster.  We as a society really WANT drunk drivers to pull over and stop driving!  Get off the road.  Ideally, of course, we want zero unwanted pregnancies and zero drunk or drugged drivers.  But practically speaking, let’s move toward harm reduction.

People may or may not agree with this law, or this defense.  But one of the first questions during jury selection is whether the potential juror will be able to apply the law as it is given to them and not substitute their personal opinion as to what they think the law is or the law should be.  Most jurors state under oath that they will be able to uphold the law.

Remember that the court does not give the law or the legal instructions to the jury until the end of trial, so during selection, the only thing the jurors hear is what the crime charged is, and the elements of the crime.  Not any potential defenses.  And as usual, a few potential jurors had never heard of this being a crime.

Halfway during jury selection, one potential juror burst out in a loud voice, “I’m really angry!  How can there be a law like this, and nobody knows about it?  I’ve never heard of it in my life!  If I get drunk in a bar and it closes, and I realize I am too drunk to drive, what am I supposed to do?  You’re saying I can’t sit in my car and call a friend and wait in my car for them to pick me up?  I am supposed to stand outside on the street drunk at 2:00 a.m.?  Because the bar is closed, and they’re not gonna let me wait inside! That doesn’t make any sense!  I thought you wanted people to be safe!  How does that make anybody safe?  Aren’t the laws supposed to make us safe?”

She didn’t get picked for the jury, but a few other jurors wiggled in their seats while she spoke up, and I believe her opinion stayed with them.  The jury came back with Not Guilty.  Even with keys in the ignition.  They determined that the suspect was safely off the roadway, right where they wanted him to be.


Many people get indignant when they read that some idiot drove drunk and then at sentencing was ordered to spend a mere night in jail, or two nights if they blew especially high for blood alcohol content.  I can understand that, but I also believe that few people are aware of all the aspects of a criminal sentence beyond the upfront jail time.  The devil is in the details, as the saying goes. Let me share with you a fairly typical first-time DUI (driving under the influence of alcohol or drugs) sentence in my community.   I am not talking here about other crimes such as vehicular assault, drug crimes, or vehicular homicide.  Just good old-fashioned “drunk driving”.

For someone convicted of DUI, the minimum sentence is one day (overnight) in jail and a fine of 850 dollars, along with other court costs and conditions.  The maximum by law is a year in jail and a 5000 dollar fine.  Additional mandatory fees include 200 dollars for the breathalyzer test, and another couple hundred in court costs to help fund the criminal justice system.  So at least around 1200 bucks or so.

On a typical first-time DUI case, where no one was badly injured, there was not an extensive amount of property damage, the person did not try to flee, and there were no children in the car, to name just a few factors, the judge tends to start with the minimum penalties, along with the usual conditions, with the remainder of the sentence (both money and jail) suspended.  Please understand, however, that suspended does not mean it goes away.  Far from it.

So what does suspended sentence mean?  It means something quite ominous to the typical erring human, actually.  The rest of the whole year of potential jail time and the remainder of the 5000 fine is literally hanging over your head for five long years.   If you fall behind in the payments, you can be sanctioned.  If you violate any of the conditions, you can be sanctioned.  If you miss a court hearing, you can be sanctioned.  So in effect, the jail time and further fines and sanctions can be sprinkled out upon you over a five year period, long after you forget why you drank and drove, and perhaps even years into your sobriety.  There is a saying that something can come back and “bite you in the butt” and it seems to me that a DUI suspended sentence has a hard potential bite.  As it should, to the degree that such a bite promotes safety and sobriety.

Each time you fail to comply with any one of the myriad conditions, you get called back into court and you can end up with some days of jail,  additional monetary fines, or additional punishment, such as work crew.  Work crew is where you get picked up at a set location at the crack of dawn and ride along in a van with other convicts to perform labor such as cleaning up litter, weeding in a park, and such.  Although all useful work is honorable, some people don’t fancy being spotted by friends and colleagues wearing a bright orange work crew vest and picking up garbage downtown.  So let’s go over the “usual conditions” that you have to comply with to avoid such sanctions during your five years of probation on the DUI case.

Where to begin?  Further conditions include, but are not limited to, having zero new criminal law violations of any kind.  So if you get a traffic ticket and your license is suspended for non-payment, and you then drive with a suspended license, that is a new independent crime, with its own set of sanctions.  But it is also a violation of the conditions of your DUI, so it will also bring you back into court on your old DUI to face punishment for having a new criminal law violation.  The new crime does not have to be alcohol or drug related at all.  You could  get into a fistfight (assault) or keep calling your ex (telephone harassment), or commit any number of lesser or greater crimes, and all of that will increase your punishment for your DUI long after your original sentencing.  Years after, even.

An expensive condition that many people fail due to lack of money or other limitations is sobriety treatment.  As a condition of being convicted of a DUI, you will be court-ordered to obtain a chemical dependency evaluation, and (here is the clincher) follow the recommendations.  That means if the drug and alcohol counselor writes in her report that you need two years of treatment (the most common finding in my experience) then you have to pay for and attend two years of treatment, usually at the agency who decided how much treatment you need.  This may include inpatient, intensive out-patient, individual and group therapy, and several AA type (sober support) meetings per week (on top of the treatment at the state-approved agency).  And if you miss any meetings, seem to have a bad attitude, or fail to provide proof of your AA meetings, the agency writes your probation officer.  Your probation officer writes the court.  The court calls you in for a hearing.  You get additional sanctions.  Did I mention that treatment can cost thousands?

There is also a one-day workshop required for all DUI cases, called Victim’s Panel.  It is a presented by a group of volunteers who have been impacted by DUI drivers.  Some have lost a family member.  Some may have become disabled.  Some were traumatized by being hit and injured out of the blue.  This panel of speakers tries to reach the emotional side of the crime, similar to the John’s Class which I describe in detail in an earlier post.  For Victim’s Panel, you spend a day sitting in a room with people who have been deeply wounded by someone like you – someone who did what you did.  Enjoy!  As Mothers Against Drunk Driving state, the workshop is “to show offenders first-hand the trauma, physical pain, emotional suffering and devastation, financial loss, anger, and frustration that is commonly experienced by innocent victims and their family members because of a DUI-related crash”.

While you are doing all this and paying for it all, missing days at work with your life turned upside down, and getting zero pity because you are a stupidass drunk, don’t forget to let the court know each time you move.  Because the court needs to be able to reach you to call you in for hearings throughout the five year period.  So you have a requirement to report any change of contact information within 24 hours of a move.  This prevents people from coming in and claiming the never got a hearing notice.  It is the convict’s job to keep in touch with the court.  If in fact the person is AWOL (another acronym – absent without leave, meaning the court cannot find you) then the time of absence is NOT included in the five years.  If you were gone for ten years after only one year of probation, once the court finds you again, their probation clock start ticking anew and you will still have four years probation left.  And by the way, if you do miss a hearing, a warrant will be issued for your arrest.

On the financial side,  the court can require restitution as part of a criminal case.  Criminal cases have punishments galore, but do not necessarily include making the perpetrator “pay back” the victim.  For example, if someone hits my car, the usual procedure, if I cannot settle it via the insurance, is to sue them in civil court and get a judgment and then try to enforce the judgment by attaching their property, garnishing their wages, etc.  In cases where the court orders restitution in a criminal case, one of the conditions of probation is to pay restitution to the victims, so what would usually be a civil case is rolled into the criminal case.  In car accidents, the restitution amount can be a thousand or so for hitting a parked car or a telephone poll, up to any number of thousands if there were medical bills or hospitalization.

I remember a case where a defense attorney asked a client why he hadn’t just paid the restitution to be free of it, instead of coming up on all these review hearings and getting further jail time, when it was 137 dollars, and the young man explained that it was 137 thousand dollars, not dollars.  To wit, $137,000.  In his case, the lawyer at that time had allowed him to plead guilty with an open-ended (to be determined) amount of restitution, and it turned out that someone was badly injured and had surgery on a leg.  Did I mention that many drivers do not have insurance?  Apparently beer is cheaper than car insurance, and it sure tastes better.  Until you have an accident, and then the taste is highly bitter.  It ends up tasting a lot like regret.

Does this seem like a lot of conditions?  Are you getting the picture that the one day of jail is not the whole story?  But wait, there’s more! We are not done with conditions yet.  Here is another one.  You may only drive with a valid license and insurance.  And good luck with the new cost of paying high-risk insurance along with all your court costs and restitution and treatment.  More likely than not, welcome to my world of taking the bus.  You also lose any commercial driver’s license you have, so you are barred from driving any commercial vehicle such as a taxi, truck, or any work vehicle with a commercial license.

Another condition.  How would you like to breathe into a breathalyzer every time you want to start your car?  It may also be set to go off a few more times while you are driving along.  How would you like to pay a couple hundred dollars to have it installed on any car you ever drive?  And once it is installed, you have the pleasure of continuing to pay for it at around 100 dollars a month for at least a year, and possibly longer.  Think about it.  You will pay a private company so they can try to catch you drinking and start the process to send you back to jail.  This is what you will do, that is, once you get the chance to apply and pay for a special ignition interlock license.

Before you can even get to the ignition interlock installation and ongoing fees, your driver’s license will be suspended for a period of 90 days if you had a low blood alcohol reading, or for a whole year if you blew a higher level or refused the test.  After the suspension, you get to pay yet another fee to have your license reinstated.  Before it will be reinstated, you have to file proof that you have purchased high-risk car insurance , which you will need to keep for at least three years, sometimes longer.  Even if the licensing department didn’t require it, you have a court order that you may not drive without valid insurance as a condition of your continued release.  And of course you will pay yet another fee to obtain the special ignition interlock device license.

Whether it is your first time or your tenth, anyone who is careless enough to drink and drive is considered to have an addiction problem that is out of control.  Because nobody in their right mind would drink and drive.  It is stupid and dangerous to barrel down the road in a couple thousand tons of metal, able to hit and kill people and cause life-changing harm.  If you ever, even once, drink and drive, you have a drinking problem, along with a serious lapse in judgment.  And please don’t bother me with an “everybody does it” argument – my answer to that is, you need to find new friends.  Very few people do it.  If your friend do it, you need new friends.  And if you do it, you have a problem.

Thus it is also quite common for the judge to order you to abstain completely from the use of alcohol (or drugs as appropriate) during the whole term of probation.  This means you may be required to call the probation department every single workday and listen to a recording that tells you a color, such as yellow.  If you are assigned yellow, and you hear yellow, you must go to the office that same day (likely during what you used to think of as your working hours) and pee in a cup.  Because it is random, you could come up two days in a row.  Failure to appear counts the same as a positive reading, and will cause you to be called back into court.  You will also likely have random UAs or urinalyses as part of your mandated treatment.  So drink a lot of water.  And be prepared to leave work early.

For cases where the judge is especially concerned about the high likelihood that you will fall back into drinking, there is a new wonder of technology called by its acronym SCRAM.  SCRAM is a Secure Continuous Remote Alcohol Monitor.   No two interpreters that I know say it exactly the same, but the convicted driver soon finds out exactly what it entails.  The SCRAM  unit fits on your ankle and virtually sniffs your skin night and day, because alcohol is something that you exude from every pore in your body after drinking.  With this device (which you will wear 24/7 including in the shower and in bed) the unit very quickly signals to the monitoring agency that you have consumed alcohol, and the notification chain of events brings you back into court to face further sanctions for violating the terms of your probation.  Think you could get away with a just a couple of beers?  Think again.  The SCRAM unit is extremely sensitive to the point that users are counseled to avoid bodywashes with alcohol in them, and even some brands of cough medicine.

Feeling overwhelmed yet about how to follow all your conditions to avoid further jail time?  Haha, it starts to feel a bit like a bad hangover, doesn’t it?  Headache, a bit of nausea, and a hole in your heart that reminds you that it is your own damn fault.  Along with confusion.  Don’t worry, the probation department will be explaining to you where to go for services and how to comply with all the conditions.  And they will be charging you 25 dollars a month on top of all your other fees in order to actively monitor your case for the first couple of years.  Your probation officer will read regular reports from your treatment agency and any other entities involved, because you will sign waivers allowing all the parties to share information about you.  Your drinking and driving has made you a matter of public interest.

Your probation officer will start by setting face-to-face meetings every few weeks.  Over time, after showing full compliance, they may allow you to come in less frequently, as you slowly move through all the classes, workshops, fines and fees, treatment, urine tests, and other conditions.  And remember, they only work during office hours.  If you also work those hours, you will be asking for time off from your boss in order to come and meet with the probation officer.  And of course if you miss a scheduled meeting with probation, they write the judge, you get a letter to come in for a hearing, and if you miss your hearing (perhaps because you had the silly idea that you wanted to keep your job and you have had so many appointments and you don’t want to tell your boss why have to be gone so much) then the judge will issue a warrant for your arrest, and you may end up in jail, which will also make it pretty hard for you to show up for work.

So next time you are toasting with your friends in a bar and taking one for the road, think hard about the low, low cost of a taxi.   And consider also the incredible fun you can have being sober.  If you ever spend the whole evening at a party as the sober designated driver, you will learn a lot about your friends as they drink, and unlike them, you will actually remember it all.  And it will give you a useful little mirror to reflect upon how you present yourself to the world when you are  not sober.  It is a funny little bit of reflection you will gain if you can be sober around people who are drinking or drugging, and keep your eyes open, and really experience how people are doing in their altered states.  After a few such eye-opening observations, you may even decide to get sober and stay sober, even without all the fuss of a criminal case.  And why not?  There’s no law against it!



Can you tell the judge that I don’t usually drink but my cousin came up from California.  And maybe you can explain to the judge, I hadn’t seen him in four years!

I know I don’t have a drinking problem because I didn’t drink for eight years.  I don’t know why I got the idea to drink again.  It was a bad idea.  Yes, I had a DUI before, but you see, I did treatment then.  That’s how I know I don’t have a drinking problem.

What?  A DUI?  Whoa.  The cops never told me that!  At least I don’t remember.  I thought they pulled me over because I was driving at night without my headlights on, have a suspended license, and there was no ignition interlock device on the car I was driving, as required by my other DUI.  Whoa!  Why did they think I was drunk?

Let the judge know it was my birthday and since I knew I was gonna get shitfaced – oops sorry I sad that – I decided I should move the car to a safer place before I was too drunk.  I was actually trying to do the responsible thing because my car was parked in a two-hour zone and I didn’t want to break the law.  So explain that I was just moving the car around to a parking lot and anyway I was a lot drunker later so I was driving pretty sober.  I was doing the responsible thing here.

I was not going to drive at all – I was getting drunk with some coworkers in one of their apartments but then one of their wives got home from work and she was like, everybody out!  This is not a tavern!  She was really mad and so I had to go to my car.  I was just sitting in my car – I was not going to drive, of course.  I mean, I knew I was drunk!  I told the wife that!  But she made me leave anyway.  So I was just going to sleep it off in my car.  What?  Running?  The car was running?  Whoa! I don’t remember that.  You call that Physical Control, and it’s the same punishment as a regular DUI?  That’s weird, because I didn’t have very good physical control when I got arrested.