A DWI STORY

You have “a few” drinks at a friend’s house. On the drive home you reach across the front seat to grab a pack of gum and cross a lane line. The lights start flashing behind you and you think, “on no, what do I do now?”

The scariest thing for almost anyone arrested for a DWI is fear of the unknown. For first time offenders almost everything about dealing with the police and the court process is an unknown and terrifying. For people with one or more prior DWI arrests, the unknown is how bad the penalty will be this time. No driving privileges? Expensive fines? Jail?

My name is Jason Korner, and I am a DWI defense attorney in St. Louis, Missouri. One of the most rewarding parts of my job is helping to alleviate that fear of the unknown for my clients. Almost everyone who meets with me shortly after a DWI arrest tells me they feel much better after speaking with me. Most people leave my office in a much better state of mind than when they arrived. If you or a loved one has been arrested for DWI, please contact my office today by calling 314-409-2659 or click here to fill out our contact form.

frequently asked questions

Will this DWI be on My Record?

When I am asked this question, it is important to note that there are two main records that people are talking about: criminal record and driving record. There is not just one overall “permanent record.” Different things will appear on each of these records. The driving record would indicate things such as:

DWI convictions
A past or present driver’s license suspension
Points from a DWI conviction, or from any other traffic citations

In many cases, there may be a driver’s license suspension, but not a conviction for DWI. In that situation, the criminal record would not show a conviction, but the driving record would show the suspension. The opposite is also possible, where there is no driver’s license suspension, so the driving record would be clean, but there may be a plea of guilt on the criminal case, which would show on the criminal record for limited purposes. A plea of guilt to a DWI is not going to be seen in the same way, or in nearly as many places, as a conviction for DWI. Although not a conviction, a plea to a DWI can relate to the following:

If a person receives another DWI the prosecutor can use the prior plea of guilt to either charge the person as a prior offender (a more serious matter), or it can be used in plea negotiations.

Some background checks, especially background checks that require fingerprinting may show a disposition of guilty for the DWI, even if the outcome was not a conviction.

The fact is whether something is going to end up a person’s record is not easily answered. I believe that too many attorneys gloss over this question far too easily and say, “No, if it’s not a conviction, it’s not going to be on your record,” when that is simply not the truth. People need to be correctly informed by their attorney about exactly what the plea of guilty could mean, where it might be seen, and how it might affect them in the future.

What is the Difference Between a DUI and a DWI?

There is no difference between a DWI and a DUI. Drunk driving prosecutions have different names and acronyms in different states because of the terminology used in the statutes in those states. For example, in Illinois it is Driving Under the Influence (DUI), in Ohio it is Operating a Vehicle While Intoxicated (OVI), and here in Missouri it is Driving While Intoxicated (DWI).

I Passed the Field Sobriety Tests, But the Officer Still Arrested Me

This is often something that I hear from my clients, especially clients that were not that intoxicated when they were arrested. He believes he did very well and passed the field sobriety tests. Unfortunately, a lot of times the officers are looking for many more detailed things than the person realizes. The police officer is looking for more than whether the person has the ability to walk straight down a line and turn around and walk straight back down the line; the officer is looking many other specific things that are covered in the field sobriety testing section of this book. Often, when a person thinks that he did well on those field sobriety tests, the fact is that while he did not perform terribly, he also probably did not perform well enough to pass the tests by the police officer’s estimation.

Do I Need a DWI Lawyer to Challenge this DWI?

Yes, always. Various groups have raised the profile of DWI cases, sometimes resulting in injustice to innocent people. Unfortunately, many people are believed to be guilty before they are ever allowed to challenge their case at all; and without an attorney, it will stay that way. Their license will be suspended.

A conviction for DWI can be put on their record, even as a first-time offender. Certainly, those are all things that people want to avoid. This presumption of guilt that comes along with a DWI case is not the way the system is set up to work, and it takes a good DWI defense attorney to challenge that presumption. The attorney can turn the case back into innocent until proven guilty beyond a reasonable doubt based on only the facts of that person’s case, not letting his client fall victim to unfair prejudice.

Further, DWI law has grown far too complex for attorneys who handle many types of law to be knowledgeable enough to effectively represent clients in DWI defense. This means that an attorney who practices divorce law and personal injury law probably is not going to be the best attorney to represent you in a DWI case. To receive the best possible defense in a DWI case., you need an attorney who specializes in criminal defense, and dedicates the majority of his practice to the defense of DWI cases.

Will the Case be Dismissed If My Name is Wrong on The DWI Ticket?

“The officer wrote my name down wrong on the ticket he gave me for driving while intoxicated. Will this make the ticket go away?” No, unfortunately, simple typographical errors are not going to make a driving while intoxicated charge go away, nor would it for most normal traffic tickets. What it will do is draw into question the officer’s attention to detail, which is extremely important. If he’s making minor errors like that, then what other errors could he be making throughout the process of writing his report and conducting his full investigation? Small errors like that are a red flag that there might be other problems with the case.

Now, I like when a person tells me they believe they passed the field sobriety tests, because it does show a level of confidence in the fact that they were not intoxicated, that they did a nice job with the field sobriety tests, and there may be more things to challenge on those field sobriety tests than in other cases. It also may be an indication that the officer was being far too nitpicky and had already made his mind up, even prior to administering the field sobriety tests that he was going to place this person under arrest.

The officer might just be using the field sobriety test to confirm an unfounded suspicion. These are all things that I look for when a client tells me he passed the field sobriety tests, but was still placed under arrest.

The PROPER STEPS TO A DWI INVESTIGATION

Initial Phase of a DWI Investigation – All of us have seen a car that is all over the road suspected the driver is most likely drunk. Although there are many possible explanations for a car to be all over the road, the police will jump to the conclusion that the driver is drunk. In my time as a DWI defense attorney, I have seen almost every reason other than alcohol for a car to drive erratically:

Texting
Playing with the radio
One client dropped a lit cigar in his lap
Sexual acts from a frisky passenger
Gusting winds and a high profile vehicle
Lost on an unfamiliar road, at night, in the rain
Exhausted after a long day of work

One of my first jobs when dealing with a DWI case is to explain away any poor driving observations. Just because someone may have been drinking does not mean he is intoxicated, and it certainly does not mean any bad driving was the result of his drinking. As seen in the list above (which is only a few of the unlimited reasons a person could be distracted while driving), the focus must be on the real, non-alcohol related reason a person was driving poorly.

The first thing that a police officer is going to look for during a DWI investigation is a reason to pull someone over. These reasons range from speeding to failing to signal, but often in a DWI case it starts with weaving between lanes or touching the lane lines. These observations are treated differently by a police officer. For example, if a person is pulled over for something normal like speeding 10 or 15 miles per hour over the speed limit, that by itself does not lead to a suspicion of intoxication.

However, if someone is in a car accident or is weaving back and forth between lanes, then those observations are going to give rise to some suspicion of intoxication prior to the police officer ever coming into contact with the person behind the wheel.

Once the officer conducts the vehicle stop, he is going to walk up to the car, and when the window is rolled down, he is going to see if he can smell an odor of intoxicants. He is going to see if there is an odor coming from the vehicle, and observe how many people are in the vehicle. If there is only one person in the vehicle, and the police officer smells the odor of intoxicants, then the officer is going to attribute that odor of intoxicants to the driver. Either way, the officer is probably going to ask if the driver has been drinking.

It is important to understand that an officer has nothing to lose by asking the question, “Have you been drinking this evening?” It’s very easy for them to do. And if somebody admits to drinking, regardless of how much that person says they have had, the officer is going to ask them to step out of the vehicle for further investigation, usually for field sobriety tests.

That is why it is important that, if you have not been drinking, that you say, “No, I haven’t had anything to drink.” If an officer is told that you have had “just a few,” the officer is going to believe that you have been drinking, but he is not going to believe you had just a few. The police are going to believe that it is much more than what you said, because the typical response that the officer gets when he asks, “Have you been drinking?” is “Yes, I’ve had two beers.”

Other things police officers can observe while a person is still behind the wheel during the traffic stop is whether that person has slurred speech, has trouble locating his insurance card or driver’s license, and if he has trouble manipulating the license to get it out of his wallet before he hands it to the officer. Finally, the police officer will observe the suspect’s eyes: Are they bloodshot or glassy? Are they staring more than usual? These are observations that a police officer can make before he ever asks somebody to step out of a vehicle, and those are the first things that an officer is looking for during a DWI investigation.

Out of the Vehicle Investigation – After the police officer has asked the person in a DWI investigation to step out of the vehicle, the police officer will generally have him walk to the back of the person’s vehicle. Usually, the patrol car will be parked behind the driver’s vehicle. What the officer is going to look for during this sequence of events is how the person gets out of the vehicle.
Does the person have to unnecessarily use the door or the side of the car to help them out of the vehicle?

Once the person is on his feet, how is his balance? Does the person use the vehicle for balance as he walks to the back of the vehicle?
Once the person is standing at the back of the vehicle, is he swaying? Is he leaning against the vehicle?

When the person took the steps to walk to the back of the vehicle, were those steps staggering, or abnormal in some other way?
Now, if the police officer’s car has a dashboard camera, this is when the dashboard camera will start to pick up actual video observations of the suspect. Usually, with a lapel microphone, the officer may have already recorded the conversation that he had with the person at the driver’s side window. But the video really comes into play once the person is out of his car and at the back of his vehicle, in front of the police car.

The dashboard camera may also have recorded the driving observations that led to the original stop, but at this point the dashboard camera will begin to pick up the person’s physical condition.
It has been my experience that, if there is a video, jurors will focus their attention on the suspect’s general physical demeanor on the video.

These physical observations on the video are where the average person or juror feels he or she can best evaluate whether someone is intoxicated. Jurors understand that a person driving poorly does not necessarily mean the person is intoxicated. Although the prosecutor and the police officer may weigh field sobriety tests heavily in the their determination of whether someone is intoxicated, jurors usually will not weigh field sobriety tests as heavily.

This makes sense because jurors are not familiar with field sobriety tests. They do not understand how they work or what they should be looking for when watching the field sobriety tests. Jurors feel the most comfortable judging someone in a way they know best, which is through general observations like balance, walking, slurred speech, and body language.

At this point, the police officer will usually have another conversation with the person at the back of the vehicle. The officer will ask additional questions beyond those questions originally asked when the person was in the car.

The police officer may ask more questions about what the person had to drink, such as:

What specifically did he have to drink?
Was it beer?
Was it wine?
Shots?
If it was beer, what kind of beer?
How big were the drinks?
How long were you drinking?
Where were you drinking?

One beer is not one beer anymore with all the craft breweries and beers that are available. So, one beer might be 5% alcohol, whereas another one might be 10% alcohol. A well-trained police officer is going to ask these questions to determine how much alcohol a person actually consumed. There is an important distinction to be made between how much liquid a person consumed versus how much alcohol that person actually consumed.

The amount of alcohol consumed is the most important piece of information a police officer could obtain during a DWI investigation. The police officer should also ask questions to establish the time period during which the person consumed the alcohol.

When a police officer does not ask these important follow-up questions, it can be held against the police officer in court. Failing to ask these questions is a shortcoming of many police investigations. This lack of proper investigation should be held against the police officer, and should impact the way a prosecutor or jury values that officer’s ability to conduct a full, fair, and accurate investigation.

These questions should be asked by the police officer before making a determination of whether the investigation should then proceed to the administration of field sobriety tests, and finally it should play a role in the officer’s overall decision of whether to arrest the person for driving while intoxicated.

 

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DWI: DRUG INTOXIFICATION

Can a person face DWI charges when they have not been drinking? Yes, a person can face a DWI charge when they have no had anything to drink if a police officer suspects the person to be under the influence of drugs. In Missouri, a person can be found guilty of a DWI if he is driving under the influence of drugs, alcohol, or a combination thereof. Recently, there has been a surge of DWI prosecutions involving either drugs or a combination of drugs and alcohol.

These happen in a two main instances:

When a person may have taken too many prescription medications to be behind the wheel, or when a person has mixed prescription medications with alcohol.

There has also been an increase in cases involving marijuana or synthetic marijuana. Often the police officers use the odor of marijuana and an admission to smoking marijuana within a recent time period before driving as probable cause to arrest the person and charge him with a DWI.

DWI by drug intoxication is very hard for prosecutors to prove even with a blood or urine test that is positive for THC (the active chemical in marijuana) or prescription drugs. The standardized field sobriety tests that have been discussed in this book are standardized only for alcohol or other central nervous system depressants.

This means those field sobriety tests are not standardized for many drugs, which makes these test much less valuable to the police officers during a drug intoxication investigation.

If a police officer relies on the field sobriety tests in the same way during a DWI drug intoxication investigation as he would during an alcohol investigation, there will be a big hole in the police investigation and a problem for prosecutors when trying to prove the case.

If these cases are challenged and pushed by the defense, many prosecutors know that they will have a hard time proving the State’s case; therefore, these cases can often be negotiated down to a lesser offense. This is still a developing area of law, especially with DWI by marijuana intoxication. The law is developing more quickly because of the legalization of marijuana in some states, especially Colorado and Washington.

The most important thing to know about DWI by drug intoxication is that these cases do need to be fought. Outside of a thorough and proper police investigation (and very bad facts for the person who was pulled over) these are good cases to push towards trial, because they are weak cases for the state.