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FAQ


Q. What is the difference between a DWI and a DUI?

A.  The short answer is "the person's age." A person who is 21 years of age or older cannot be convicted of a DUI, only a DWI. An element of the crime of DUI is that the person was under 21 at the time of the offense. 

A person who is under 21 can be charged with either a DUI or a DWI. Typically, if a person under 21 is alleged to have had a BAC result of .08 or higher, then the officer will charge him or her with a DWI. The penalties for a DWI are generally much more severe than those of a DUI.  

Q.  Is there a different level of proof required between a DWI and a DUI?

A.  Yes. DWI means "Driving While Intoxicated." DUI means "Driving Under the Influence." "Intoxication" is defined by Arkansas statutory law as substantial impairment of the driver's reactions, motor skills, AND judgment. "Under the Influence" is defined by Arkansas law as an impairment, even to the slightest scale, of the driver's reactions, motor skills, AND judgment.

Moreover, a DWI (based, at least in part, on a BAC result) requires a BAC level of .08 or more. Whereas, a DUI only requires a BAC level of .02 or more.

Q.  Can I expunge (or seal) the record of my Arkansas DWI or DUI conviction?

A.  Yes, it is possible. The answer for many years was a definite "no" for any misdemeanor DWI (felony DWI's (4th offense or higher) were already eligible for expungement).  However, that changed with the codification of Ark. Code Ann. 16-90-1401, et seq. You may now petition the court of your conviction for an expungement of your Arkansas DWI (felony or misdemeanor). The judge may not deny your petition for expungement unless there is "clear and convincing evidence" that the expungement should not be granted. Keep in mind that you must wait until five (5) years from the completion of your sentence for your DWI before you can petition to expunge and seal your Arkansas DWI conviction.

DUI's have always been and continue to be eligible for expungement sixty (60) days after the completion of your sentence for the DUI.

Q.  What are the chances that the prosecutor will drop my Arkansas DWI or DUI charge?

A.  For a DWI, there is zero chance. However, this not a reflection of our abilities as your lawyer. It IS a reflection of the politicians that were elected to the Arkansas Legislature. Many years ago, Arkansas legislators passed a law that specifically prohibits anyone (including the prosecutor and even the judge) from reducing a DWI to a lesser charge. However, a multiple-offense DWI (i.e. DWI - 2nd Offense) can be reduced to a lesser DWI (i.e. DWI - 1st Offense).

For a DUI, the law does NOT prohibit reducing it to a lesser charge. However, prosecutors are usually very reluctant to reduce a DUI.

Q.  How long do DWIs and DUIs "count against" me in Arkansas?

A.  A DWI or DUI can only be counted or used against you for enhancement purposes for 5 years after the date of the offense. This is true regardless of whether your prior DUI or DWI was from Arkansas or some other state.

Example:   Assume that you were convicted of a DWI - 1st Offense that occurred on June 1, 2014. If you are charged with another DWI that occurred on or before May 31, 2019, then the new DWI is a DWI - 2nd Offense, which has significantly more severe penalties. This is true regardless of the fact that the date of conviction for your second DWI may be after 5 years from the date of the offense of your first DWI; the law counts DWI's from "offense date to offense date," not "conviction date to conviction date."

Q.  What is meant by the term "breathalyzer?"

A.  "Breathalyzer" can refer to any instrument that measures a person's breath to determine its alcohol content and then converts that amount to a blood alcohol content ("BAC") measurement. The term was originally used many decades ago to refer to Smith & Wesson's particular brand of breath testing device. Susequently, like the terms Kleenex and Xerox, it has become synonymous with any breath testing device of this type. The State of Arkansas has adopted the use of the Intoximeter EC/IR II as its evidentiary breathalyzer.

Q.  Can I refuse to take a breathalyzer?

A.  Yes!  However, there are different consequences to refusing to take a breathalyzer, depending on the type of breathalyzer in question. Although you have the "right" to refuse a test, it may constitute the separate violation of "Refusal." A refusal to take a portable breath test ("PBT") does NOT constitute the crime of Refusal. The results of a PBT test are not even admissible in court due to the technology's inherent unreliability. 

However, Arkansas (and every other state) has an "implied consent" law that states that if you drive, you have "impliedly consented" to take a breathalyzer (or another chemical test, such as blood or urine, which are requested MUCH less frequently by officers). This refers to an evidentiary breathalyzer (in Arkansas, it is the Intoximeter EC/IR II). Although an officer cannot physically force you to take a breathalyzer or other chemical test (except with a search warrant issued by a judge), you will be charged with a Refusal to Submit to a Chemical Test if you refuse to take such a test.  To determine whether you should refuse or not, you must evaluate your own personal consequences, typically relating to the associated drivers license suspension that will likely result, if you take the test or if you refuse.

Q.  Can I refuse to take field sobriety tests?

A.  Yes!  Contrary to a refusal to take a breathalyzer (or other chemical test other than a blood test), a refusal to take field sobriety tests is NOT a violation for which a charge can be added. However, the police officer almost never volunteer the fact that you can refuse to take them. Many people take the tests either because 1) they want to prove to the police officer that they are not intoxicated or 2) they do not want to anger the officer into charging them with a DWI/DUI. However, in our experience, it is VERY rare for a person to pass the tests (since many sober people fail these tests) or, if you did pass the tests, for an officer to admit that you passed. Moreover, once an officer has requested that you take field sobriety tests, they have usually already formed their opinion that you are intoxicated, and it is HIGHLY unlikely that you will not be arrested for a DWI/DUI (in other words, whether you hurt the officer's feelings by not taking his/her tests, that should be the least of your concerns). 

Q.  What is going to happen to my driver's license?

A.  This depends on what you have been charged with. You must first look at the driver's license suspension penalties applicable to you. You start serving out this sentence at the time of your arrest, before you've ever seen the inside of a courtroom.

These suspension periods relate only to your driving privileges in ARKANSAS. If you are not a resident of Arkansas, then your driving privileges in your home state should not be suspended unless or until you have received notification from your home state.  However, using Texas as an example, we have had clients from Texas (although very rarely) be suspended while their case in Arkansas was pending; at the same time, we have had Texas clients who never received any drivers license suspension whatsoever.

It is important to understand that, at the time of your arrest, your case is on 2 separate tracks: 

          Track #1.  Court and

          Track #2.  The "DMV" or "Driver Control" (as it is called in Arkansas), which is a division of the Department of Revenue.

For the most part, what happens to your driver's license has NOTHING to do with "Court." Court controls jail time and fines; Driver Control controls your driver's license.

At the time of your arrest, the officer probably took your driver's license (or more precisely, "the piece of plastic that represents your license to drive") right there on the spot. From that time, you have SEVEN (7) DAYS to make a written request to Driver Control for temporary relief so that you can drive for all, or at least some part, of your suspension period. Keep in mind that your particular driver's license penalties will determine whether you are even eligible for relief. 

If you are eligible for relief, and you made a request for temporary relief within the seven (7) day period, then you will be scheduled to appear at your local Revenue office for a "hearing." Although this is called a hearing, the "hearing officer" typically has no formal legal training. At the hearing, it is usually just you and the hearing officer. There is no judge, no prosecutor, and no cops. Your defense lawyer CAN attend this hearing, and in rare cases, prevent your driver's license from being suspended. 

[Note:  If your license is suspended, you have the right to file a civil appeal that, like your initial hearing, is separate from your DWI or DUI court process. However, that process is rather complicated and will have to be explained to you by one of our DWI attorneys in person.]

Usually, the only time that Court affects your driver's license is when you win your DWI or DUI. If you are still within your suspension period at the time of your win, then you get your license back without any further penalties or requirements.

However, if your case ends with a DWI or DUI on your record OR if you have served out your suspension period but your case has not yet gone to trial, then you can get your unrestricted Drivers License back if you:

          1.  Take an approved alcohol class(es) (or complete alcohol treatment, if a multiple-offense DWI),

          2.  Attend a Mothers Against Drunk Driving (MADD) Victim Impact Panel (VIP) meeting,

          3.  Pay a $150 reinstatement fee to Driver Control (Department of Revenue), and

          4.  Spent a period of time equal to your suspension period (e.g. 6 months for DWI 1st) with an interlock device installed on a car.

Q.  How much could my Arkansas DWI or DUI cost me if I am convicted?  (Estimates based on an average DWI - 1st Offense)

A.  Fines - $1,000

     Court Costs - $300

     Ignition Interlock Installation Fee - $200

     Ignition Interlock Monthly Fee - $480 ($80 per month x 6 months)

     Alcohol Classes - $150

     MADD VIP Meeting - $10

     License Reinstatement Fee - $150

     Vehicle Towing - $150

     Increased Car Insurance Premiums - $4,500 (over 3 years)

     TOTAL = $6,940...plus any Lost Work & Attorneys Fees (which vary, based upon the facts of the case)

 

     AND THEN THERE ARE THE IMMEASURABLE COSTS...

          Possible Jail Time? Priceless

          Having a Criminal Record? Cost Unknown

 

Q.  So can I actually go to jail on a 1st Offense DWI?

A.  Yes.  The mininum sentence for a 1st Offense DWI is 24 hours in the county jail. Furthermore, this sentence is mandatory. The judge does not have the ability to sentence you to less than 24 hours.

In some courts, the standard sentence on every 1st Offense DWI is actually MORE than 1 day in jail. If that occurs (meaning, if you plead guilty or are found guilty), you will return to the county jail to complete your sentence. Regardless of what court you are in or whom your judge is, the specific facts in your case are also important in the sentence the judge may impose on you if you plead guilty or are found guilty. The judge has the power to sentence you to anywhere between 1 day and 1 year in the county jail.

Significant jail time (i.e. more than a few days) on a 1st Offense DWI typically occurs in situations where 1) you have a lifetime history of prior DWI's, 2) there was an accident involved, 3) you had a BAC above a .15 to .20 (depending on the court/judge), 4) drugs were found on you or in your vehicle, 5) you were charged with other significant offenses as part of the DWI, etc.

This is part of the reason why it is important to try to win your Arkansas DUI or DWI case if you can.

Q.  How much is your fee?

A.  That is kind of like telling your doctor that you're having chest pains and then asking how much it will cost. Everyone's case is different. We need to know much more about you and your case before we can determine the degree of complexity of your case.  On average, it takes from 1 hour to 1 1/2 hours to discuss your case and determine the defenses that may be needed to properly defend your case. We do not charge for a consultation; it is ABSOLUTELY FREE. 

After we have reviewed your case in depth, we will be able to quote you a fee. We do not attempt to be the cheapest lawyers, but we do try to be the BEST. We try to accommodate potential clients in any way that we can. Typically, we will be able to provide a potential client with a variety of options to arrange for payment. We also accept Visa, MasterCard, and American Express.