After Arrest for DUI/DWI: The Legal Process

Last update: Aug. 29, 2008

After Arrest for DUI/DWI: The Legal ProcessTypically after a DWI arrest, a suspect is taken to jail and given a chance to perform more sobriety tests or repeat the ones conducted at the roadside. Like the tests at the roadside, the suspect may choose whether to perform them, except in the case of a blood test, which generally requires a search warrant. One test that is almost always offered at this point, however, is the breathalyzer.


A breathalyzer is a device that measures blood alcohol content (BAC) from a breath specimen. It is the suspect’s option whether to take the breathalyzer, and there are pros and cons of doing so.

In all states, the legal BAC limit while operating a vehicle is .08. A driver’s test result of below the legal limit goes a long way toward showing that he or she was not intoxicated. A specimen above the legal limit, however, is strong evidence that the suspect was intoxicated.

However, the definition of intoxication in most states is broad. The law usually says that intoxication means providing a specimen over the legal limit or not having control over one’s mental or physical faculties because of the introduction of some substance into the body. Therefore, alcohol does not have to be the reason a person is “intoxicated.” It could be because of medication or a combination of medication and alcohol. So, providing a breath specimen below the legal limit does not necessarily mean that a person is not intoxicated.

In many states, the decision of whether to provide a breath specimen can impact how long a suspect’s driver’s license is suspended after the arrest. Failure to provide a specimen often means that the license will be suspended for a longer period.

Blood Tests

Taking a suspect’s blood sample is rare, although it is becoming more common. If the police want to draw a suspect’s blood, they must obtain a search warrant if the suspect does not consent. Even then, the blood must be drawn by a qualified medical technician. To speed up this process and avoid a trip to a hospital, many jurisdictions train police officers to take blood samples from DWI suspects. This is of particular concern to civil liberties advocates.

Administrative License Suspension

In the majority of states, a person arrested for DWI will have his or her license suspended immediately after arrest. The suspect may request a hearing on the suspension, which usually takes place before an administrative judge. This is an administrative hearing and is separate from the DWI criminal case, which comes later. What the police must prove in such a hearing is (1) the officer had reasonable suspicion or probable cause to pull the suspect over and (2) the officer had probable cause to arrest the suspect. Because this is an administrative hearing, these two items must be proved by a preponderance of the evidence (as opposed to reasonable doubt in a criminal case). Preponderance of the evidence is a much lower standard than reasonable doubt, which is why DWI suspects often are not successful at these hearings. In most states, the period of license suspension is determined by whether the suspect provided a breath specimen; if he or she did, the period of suspension is shorter.

Despite the lack of success rates for DWI suspects, these hearings are advantageous for many reasons, not the least of which is the suspect will have the arresting officer’s testimony in advance of trial.

Pros and Cons of Going to Trial

Although prosecutors are not required to do so, they inevitably will offer a defendant a plea bargain, which is a guilty plea in exchange for lesser punishment. There are, of course, advantages and disadvantages of going to trial, and much depends on the evidence the prosecutor has against the defendant.

If a defendant refused to take the sobriety tests and/or provide a breath specimen, he or she is in a better position at trial because the prosecution has less evidence. This nevertheless puts the defendant in a somewhat-difficult position because a jury will want to know why the defendant refused such tests if he or she was not intoxicated. Even so, answering that question is much easier than trying to explain a poor performance on the sobriety tests or a breath or blood sample above the legal limit.

One danger in accepting a plea bargain is the DWI conviction will, under most circumstances, remain forever on the defendant’s record. Although most first-time offenses are misdemeanors, a large stigmatization accompanies a DWI conviction. Additionally, a conviction can cause problems when seeking employment if potential employers conduct a background search.


Penalties for DWI vary by state, and the severity depends on many factors, including whether the defendant went to trial and his or her criminal history. In most states, first-time penalties include a driver’s license suspension (in addition to the administrative suspension discussed above), fines, court costs, probation, community service and jail time. Additionally, penalties increase for every subsequent DWI conviction. Some states also require offenders to take classes collectively known as DWI or DUI education courses. These classes cover topics that include the risks associated with drunk driving and the consequences of such behavior.

In most states, a first-time DWI offense is a misdemeanor. The second or third offense, however, usually is a felony, resulting in much more serious penalties and almost always some amount of time in prison.

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