Actual Control of Vehicle (ACV) – It is unlawful for any person who is intoxicated to operate or be in actual physical control of a motor vehicle. ACA 5-65-1039a). This provision is used to obtain a DWI conviction when the police can show evidence of intoxication from such things as SFSTs, but do not have proof of a BAC of .08 or greater on a DUI conviction without proof of a BAC of .02 or greater.
Actual Physical Control– Means that the keys are in the ignition and the motor vehicle can be driven. An interesting case holds that a car with a remote start that is running with the lights on, but that is not capable of being driven until the key is put in the ignition is not Actual Physical Control. If you are not in Actual Physical Control or were not in Actual Physical Control at the time of an accident or stop, you cannot be guilty of DWI.
Arraignment – This the point in your case were a defendant is advised by a judge of the actual charges against him. The defendant is required to enter either a guilty or not guilty plea at this time.
Bail or Bond – The amount of money that a defendant must post to be released on a criminal or DWI charge that is used to ensure that the defendant will appear for court. Usually a defendant will post a portion of the bond by paying a bail bondsman to guarantee his appearance. If the defendant fails to appear, the bondsman must either go find the defendant and bring him to court or pay the bond amount to the court. Note: Although the bond is often times set by a judge in an amount equal to the maximum amount of fines and costs, the forfeiture of the bond when a defendant fails to appear will not satisfy the fines and cost.
Blood Alcohol Content (BAC) – The concentration of alcohol in the blood, expressed as the weight of alcohol in a fixed volume of blood and used as a measure of the degree of intoxication in an individual. The concentration depends on body weight, the quantity and rate of alcohol ingestion, and the rates of alcohol absorption and metabolism.
Controlled Substance -Means a drug, substance, or immediate precursor. ACA 5-65-102
DUI – It is unlawful for any person under the age of 21 to operate or be in actual physical control of motor vehicle while under the influence of an alcoholic beverage or similar intoxicant. ACA 5-65-303(a). It is also unlawful for any person under the age of 21 to operate or be in actual physical control of a motor vehicle if at the time there was a BAC of .02 to .079. ACA 5-65-303(b).
DWI – It is unlawful for any person who is intoxicated to operate or be in actual physical control of a motor vehicle. ACA 5-65-103(a). It is also unlawful for any person to operate or be in actual physical control of a motor vehicle if at that time the alcohol concentration in the person’s breath or blood was .08 or more. ACA -65-103(b).
Horizontal Gaze Nystagmus (HGN) – A test for intoxication based on observation of involuntary jerking movements of the eyes as they follow horizontal motion. The test consists of six possible clues. If four of the six clues are present, the person is considered to be intoxicated. HGN is one of the three (3) tests included in the SFSTs.
Ignition Interlock Device – Is a mechanism installed in a motor vehicle to prevent the vehicle from starting if a BAC of greater than .02 is detected. At random times after the vehicle has been started, the device will require another breath sample. The purpose of this is to prevent a friend from breathing into the device, enabling the intoxicated person to get behind the wheel and drive away. If the breath sample isn’t provided, or the sample exceeds the ignition interlock’s preset blood alcohol level, the device will log the event, warn the driver and then start up an alarm (e.g., lights flashing, horn honking, etc.) until the ignition is turned off, or a clean breath sample has been provided.
Influence – DUI – Means 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. ACA 5-65-302.
Intoxicated – Means 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 and the driver, therefore, constitutes a clear and substantial danger of physical injury or death to himself and other motorists or pedestrians.
Standardized Field Sobriety Tests (SFSTs) – A battery of three tests developed by the DOT/National Highway Traffic Safety Administration (NHTSA) to evaluate a person’s level of intoxication based evaluation of physical clues. The battery consists of HGN, Nine-step Walk and Turn, and One Leg Stand.
One Leg Stand – A test for intoxication based on observation by the officer of the subject standing on one leg (either leg), holding out the other foot approximately 6 inches off the ground, foot pointed forward so the raised foot is approximately parallel to the ground for a period of thirty seconds. This is a divided attention test consisting of two stages: Instruction Stage and Balance and Counting Stage. The officer is looking for four distinct clues; 1- sways while balancing; 2 – uses arms to balance; 3 – hopping; and 4 – puts foot down before told to stop the test. The officer is also looking to see if you start the test before instructed to do so. The One Leg Stand is one of the three (3) tests included in the SFSTs.
Portable Breath Test (PBT) – A handheld device used to measure blood alcohol content. The results of which may not be admitted in court to prove intoxication, but which may be used by a defendant to prove that he was below .08 BAC at the time of arrest. The PBT is arguably a SFST in that it is part of the DOT/NHTSA student manual, but since the results are not admissible in court to prove intoxication I do not usually include them in an SFST discussion.
Violation of Implied Consent Law (VICL) – The law that requires you to provide a BAC sample if the police have probable cause to believe you were intoxicated. If you fail to provide the BAC sample your license will be suspended for six months for the first offense, although you will be eligible for an ignition interlock device. See the DWI-DUI Penalties Page for more information concerning second and subsequent violations.
Rising Alcohol – This is a defense based upon the theory that at the time of arrest a defendant’s BAC was below .08 but rose above that level at the time the BAC test was administered. This has been a rather successful defense in other states, but in the past has not been that successful in Arkansas. A recent change in Arkansas law requires the police to administer two BAC tests. Both will usually be breath tests and if the defendant was arrested fairly close to the time he stopped consuming alcohol, and the BAC provided is marginally over the .08 threshold there is a good chance this defense may gain some new legs.
Walk and Turn – In this test, the subject assumes a heel-to-toe stance with the subject’s arms down at his side. The subject is to maintain this position until the officer tells his to begin walking. At that time, pursuant to the instructions given by the officer during the instruction phase, the subject is to take nine heel-to-toe steps down a real or imaginary line, turn around and take nine heel-to-toe steps back up the line. The turn is not a pivot, but instead is made by taking a series of small steps with one foot, keeping the front foot on the line. While walking, the subject is to keep his arms at his side, watch his feet at all times, and count his steps out loud. The Walk and Turn is one of the three (3) tests included in the SFSTs.
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