DWI and DUI in Arkansas-FAQ

DWI and DUI in Arkansas
The Frequently Asked Questions

Imagine if you will that I have been out for a ride on my Harley and decide to stop somewhere for dinner. I take a seat at the bar, order a burger and something to drink, and after exchanging a few pleasantries; someone finds out that I am attorney with a practice dedicated to DWI defense and then the following questions always come up. I hope that you find them helpful or at the very least somewhat entertaining, but remember, they are offered for information purposes only and while generically correct they are not legal advice for any specific situation. If you are charged with a DWI/DUI in Washington, Benton, Madison, Crawford, or Sebastian County, Arkansas, please give me a call for help with your specific case. If charged somewhere else, you really should consult with an experienced DWI attorney in your jurisdiction.

Do the police have quotas for DWI arrests?
They love to tell you that they do not, but they do. All police agencies are partially funded by federal and state grants. Almost all have grants for DWI intervention (arrest). Basically they work like this: An officer(s) position(s) is funded by a grant to increase DWI arrest. The grant application will claim that by funding the position(s) the agency can increase DWI arrests by some specific amount over a multiple year period. The grant is approved by the feds or state for one year with proof of performance for the remaining years. So if the officer(s) and the police agency as a whole does not have the number of DWI arrests required by the grant the grant funding is cut and the officer loses his job. So do you think the police have DWI quotas? Interestingly, the grants are only based upon arrests and not conviction, so the police are encouraged to make arrests in even marginal cases just to meet quotas.

If I hire an attorney, can I get the DWI charges dismissed?
NO! By statute in Arkansas, a DWI arrest must be disposed of by either a plea of guilty or an acquittal (not guilty) at trial. This is the only charge in Arkansas that a prosecutor cannot dismiss before trial. So you could murder or rape someone and the prosecutor could determine that the evidence is insufficient and dismiss the case, but for a DWI you either are going to take a plea offer or take your chances at trial.

Will I lose my license if I get charged with a DWI?
YES! The police will seize your license upon arrest, give you a temporary license consisting of a pink piece of paper which is good for thirty days, and also give you another piece of paper to contest the automatic suspension of your license which must be submitted to the Arkansas Department of Finance and Administration Division of Driver Control within seven days of your arrest. See the page for DWI and DUI Penalties page for the length of time your license will be suspended and availability of a restricted driving permit. You will also have to take “alcohol awareness classes” at your own expense and pay a $150.00 reinstatement fee before you will be able to get your license reinstated.

What happens if I get stopped for driving while my license is suspended?
If you are driving without a valid restricted driving permit or outside of the restrictions on the permit, then you can expect to do ten days in jail on the first offense and a whole lot more for a second or third offense. Also, the period of your suspension will be increased. A lot of people get in trouble after having received a DWI, completed their “alcohol awareness classes”, and done everything else they are supposed to except paid the $150.00 reinstatement fee. Yes, they get ten days in jail because they didn’t pay the $150.00, even though the only reason they do not have a valid license is their failure to pay the reinstatement tax (fee).

A friend of mine had too much to drink and decided to sleep it off in the parking lot and still got charged with DWI: Why?
Arkansas has what is known as Actual Control of a Vehicle (ACV). ACV means that if you have what appears to be the intent and ability to drive the vehicle you are in control of it and therefore you are deemed to be driving the vehicle. Basically, if you put the keys in the ignition while you are intoxicated you can get a DWI, even if you are asleep in the back seat in a private parking lot or your own driveway.

Can you get a DWI for smoking marijuana or taking prescribed medications?
YES! The definition of “intoxicated” includes any controlled substance including medications prescribed by your doctor. So if you cannot pass the SFSTs while taking medication and driving you will be charged with a DWI. It is not a defense that the medications were prescribed. So if you just had surgery on your back and could not pass the SFSTs sober or intoxicated, do not take any medications and get behind the wheel.

I have two friends who received DWIs and one’s license was suspended for two years and the others for only forty-five days – Why?
The law on DWI driver’s license suspensions changed on July 31, 2009. The difference between being arrested at 11:59 on July 30th or 12:01 on July 31st is significant. For a first offense the law changed from immediately allowing a restricted driving permit for 120 days to requiring an ignition interlock for 180 days. While on a second offense DWI the law changed from a person having their license suspended two years and only able to receive an interlock restricted license after one year to having their license suspended for two years and receiving the interlock restricted license after forty-five days. So I would suspect that your friends fell on different sides of the change in the law.

I was arrested for DWI and the police never read me my Miranda rights: Why?
Because of what can only be called judicial rule bending, Miranda only applies to “police interrogation and statements while a person is in custody”. Apparently, no one on the Supreme Court has actually been pulled over by the police and had their driver’s license taken from them because they have created the legal fiction that you are not in custody on a DWI (but not necessarily other charges) until the handcuffs are on you. So until the police place you under arrest and start asking you questions they do not have to Mirandize you. Every year I will have a few cases where the office will decide to give more SFSTs or will forget and ask additional questions after arresting the person and taking them to jail. These statements will be suppressed, which may weaken the prosecutor’s case, but it does not ensure an automatic acquittal.

My son got a DWI and lost his license: Can I just buy him a moped to go back and forth to school and work?
This is one of the big myths out there concerning DWI and regrettably the answer is a big – NO! Although you do not need a driver’s license to operate a motorcycle with a motor of less than 50 cc’s or a moped, you cannot operate any motor vehicle, even an electric motor powered bicycle if your driver’s license has been suspended. This applies to all driver’s license suspensions for any reason, not just for DWI/DUI.

What is the difference between a DWI and a DUI?
What Arkansas calls a DWI is usually referred to as a DUI in other states. What Arkansas calls a DUI is usually referred to an underage DUI in other states.

What exactly is a DWI?
A DWI is driving while intoxicated and a DUI is driving under the influence. A DWI is given to anyone who operates or is actual physical control of a motor vehicle while intoxicated or who’s blood alcohol concentration is eight-hundredths (.08) or above.

What exactly is a DUI?
A DUI is given to any person under the age of 21 who operates or is actual physical control of a motor vehicle while under the influence of alcohol or who’s blood alcohol concentration is between two-hundredths (.02) but below eight-hundredths (.08). The important distinction is that anyone who is intoxicated or whose blood alcohol is above eight-hundredths (.08) will be charged with a DWI while only those under the age of 21 will be charged with a DUI even if not intoxicated but who are at the minimum of under the influence.

What is the difference between intoxicated and under the influence?
Intoxicated is defined by statute to mean “influenced or affected by the ingestion of alcohol, a controlled substance, any intoxicant, or any combination of alcohol, a controlled substance, or an intoxicant to such a degree that the driver’s reactions, motor skills, and judgment are substantially altered.”

Under the influence is defined by statute to mean “being controlled or affected by the ingestion of an alcoholic beverage or similar intoxicant, or any combination of an alcoholic beverage or similar intoxicant, to such a degree that the driver’s reactions, motor skills, and judgment are altered or diminished, even to the slightest scale, and the underage driver, therefore, due to inexperience and lack of skill, constitutes a danger of physical injury or death to himself or herself and other motorists or pedestrians”.

How long does a DWI stay on a person’s driving record?
The law in Arkansas is currently five years, but you can expect it to be changed soon to eight or ten years. Several bills have been before the legislature in recent years trying to change what is commonly called the “look back period”. The current trend nationally is to go to ten years. I expect that eventually a DWI will become a permanent part of your driving record.

What is the difference between a DWI-1 and a DWI-2?
A DWI-1 is what a person is charged with the first time they receive a DWI or if it has been more than five-years since their last DWI offense. A DWI-2 is what a person will be charged with if they receive a second DWI charge within five years of a DWI-1. The charges continue to accumulate for each offense, and it is not uncommon to see people charged with a DWI-3, DWI-4, or even a DWI-5.

What are the penalties for a DWI or DUI?
See the DWI and DUI Penalties page for the potential fines, court costs, jail time, and driver’s license suspension penalties associated with the different DWI or DUI charges.

Do you have to pay the fines and costs immediately on a DWI?
Most courts will work out a payment plan for the fines and costs, but will put you in jail and suspend your license if you fail to timely pay.

What is an Aggravated DWI?
Arkansas really does not use the term “Aggravated” for a DWI like some states do for the more severe cases. The law in Arkansas used to have an aggravated provision were the person has a blood alcohol content (BAC) of fifteen hundredths (.15) or above were subject to an enhanced period for their driver’s license suspension but that is no longer the case.

Do you have to go to jail if you get charged with a DWI?
All DWI charges require a minimum of one day in jail, but the law does allow you to do community service in lieu of jail time on most DWI-1, DWI-2, or DWI-3 charges. Whether or not you can actually do community service instead of jail time will be up to the judge and prosecutor. If you really want to do community service instead of serving time in jail and you have been charged with a DWI you will almost certainly need to hire an attorney.

You can sometimes avoid any additional jail time if you have “credit for time served”, which means that there was a minimum of eight hours between the time you were stopped by the police on your DWI charge and when you were released from jail. The Arkansas attorney general has issued an opinion that states that eight hours in jail satisfies the one day jail requirement for a DWI charge, so a smart bondsman will not bond you out of jail till you have served the eight hours. People often get bonded out after six or seven hours because they want to go home and then after they are found or have pled guilty they have to go back to jail and serve another eight hours when if they would have just been patient for another hour or so they would have never had to go back to jail.

If I am stopped for a DWI should I blow?
Arkansas has what is known as Implied Consent, which is basically a statute that says if you operate a motor vehicle in Arkansas you agree to a blood alcohol test. So if you do not blow, you will be charged with an additional crime of Violation Of Implied Consent. As an attorney I am prevented from ever advising someone to break the law, so I cannot advise you not to blow. As a practical matter though, it really will depend on how much you have had to drink (see the Blood Alcohol Calculator Chart page) and how intoxicated or under the influence you are. If you only had few drinks, I think you are probably better off going ahead and blowing in most instances. There are several reasons for the this: First – the Arkansas Supreme Court recognizes “consciousness of guilt” which basically means that a person’s refusal to blow is an admission that that are in fact intoxicated; and, Second – the only way to have an actual blood test is to provide the breath test and then ask the police to take you to the hospital for a blood test at your own cost.  By the time the police get you back in the car, take you to the hospital, get your paperwork done, and someone actually draws your blood a considerable amount of time will have passed and you have a significant chance of having a lower BAC. Should the police refuse to take you to the hospital for the blood test after you have provided the breath test, the results of the breath test are not admissible in court.

What is the best advice you can give someone facing a DWI charge?
Besides the obvious call a cab or friend, the best advice would be to have your driver’s license and registration handy at all times. Don’t drive a car with any non-functioning safety equipment, drive with your windows down, and keep your mouth shut as much as possible, ask if you are free to go as soon as the officer returns from running your driver’s license, politely ask to have an attorney present, do not perform any SFST’s, see the questions on Miranda, go ahead and blow, ask to be taken to the hospital for an actual blood test at your own expense, and be prepared to go to jail anyway. Hire an experienced attorney with a practice dedicated to DWI defense. If you do all of these things, you will have a much better chance of acquittal (not guilty).

Should I hire an attorney to defend me on a DWI charge?
Yes, but not just any attorney or for that matter, just an “experienced attorney”. DWI defense is a specialized area of practice. Very few attorneys have actually tried a DWI case or gone to specialized continuing legal education courses devoted to DWI/DUI defense. Even fewer will have gone to the expense of maintaining law library dedicated to DWI defense containing at a minimum the DOT/National Highway Traffic Safety Administrations DWI Detection and Standardized Field Sobriety Testing – Student Manual, Taylor and Oberman’s Drunk Driving Defense (the bible for DWI defense), and Kwasonski’s Officer’s DUI Handbook. Only a handful of attorneys across the United States have gone to the expense of and taken the time to be trained and certified to administer SFSTs. So, spend your money wisely.

Copyright 2010 and 2020 – Paul D. Reynolds

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