What is a DUI?

In order for a person to be guilty of Driving Under the Influence ("DUI") the State must prove the following:

  1. The Defendant drove or was in actual physical control of a motor vehicle.
  2. Upon a highway, street or bridge or upon the public or private property open to the public.
  3. While under the influence of alcohol, drugs or an intoxicating substance.
Idaho has made it illegal to drive or be in actual physical control of a motor vehicle with a .08 alcohol concentration. This is referred to as the per se method of proof. This means the state has to prove that you were driving or you were in actual physical control of a motor vehicle and your alcohol concentration was over the .08 limit. Actual physical control is defined as being in the driver's position of the motor vehicle with the motor running or with the motor vehicle moving.

If there is not a test for alcohol concentration or if the officer suspects a drug DUI, the state can still prove a DUI if there is evidence that you consumed an intoxicating substance and it affected your ability to drive. This is referred to as the non-per se method of proof. We normally see this type of proof in refusal (to take a BAC test) or drug DUI cases. The state will attempt to show a person's ability to drive was impacted by an intoxicating substance by eliciting evidence on the person's poor driving pattern and how they performed on field sobriety tests. The State will then attempt to show that the person ingested either drugs or intoxicating substances or both.

At first blush, it seems that DUI's are easy for the state to prosecute, however, there are many hurdles the state must overcome before they can convict a person of DUI. An attorney must make a thorough investigation of all the police reports and audio or video evidence to properly advise a client and navigate the legal web that has ensnared them.

Instead of listing all the defenses and exploring every single case to explain the law I have included in this article what you need to know right now in order to aid your understanding and giving you a quick synopsis of the interplay with the administrative license suspension and what penalties you may be facing. After all the years of practice this is the information my clients want to know about first. The only way I can give you an accurate legal opinion for your particular case is after a through review of the reports, audio, video and in depth interview with you.

When you are arrested for DUI this is what you need to know:

If you took a breath test and failed by blowing over the statutory limit of .08 the following will apply:

You will have two cases that will be filed against you. The first case will be a civil case initiated by the Idaho Department of Transportation. The second case is the criminal case that will be filed in the county court where the violation took place.

The civil case is typically referred to as the ALS case or the Administrative License Suspension. The Department will move to suspend your drivers license for 90 days with the first 30 days being absolute where you have no driving privileges of any kind. After the first 30 days you would be eligible for a work permit as long as your license is valid in Idaho. This suspension will start 30 days from the date of service on the notice of suspension form that the officer gave you. During this 30 day period you can drive normally until the 30 day absolute suspension begins to run. The notice of suspension form is gold in color and is titled "Notice of Suspension for Failure of Evidentiary Testing." If you had a prior evidentiary failure from a prior DUI within five (5) years, the Department will move to suspend your license for one year with no driving privileges of any kind.

You have seven days to petition the Department for a hearing to contest this suspension and enforce your rights. I provide this service for my clients so it is imperative that you contact me before this seven-day window expires.

If you have a commercial driving permit you will have two civil cases filed against you. One for your CDL and one for you class D license. You will not be eligible for a work permit for the CDL, but would be eligible for a work permit on your class D license. If the Department is successful in suspending your license your CDL will be suspended for 1 year. If you have a prior evidentiary test failure you will lose your CDL for life. This suspension is dictated by federal law and is administered by the Department. This suspension is career ending so it is imperative that you contact me before the seven-day window expires to file your petition for hearing.

If you refused evidentiary testing and were not forced to give blood the following will apply:

By Idaho law a person is deemed to have consented to evidentiary testing. What this means is under Idaho's implied consent statute, any person who drives or is in actual physical control of a vehicle is deemed to have impliedly consented to evidentiary testing at the request of a officer who has reasonable grounds to believe the person was driving under the influence. Putting this bluntly means you have no right to refuse evidentiary testing in Idaho. Typically when a person refuses to provide a breath sample the officer will perform a forced blood draw by calling in a phlebotomist at the jail and having them draw blood which will be sent to the state lab for evidentiary testing.

Sometimes the jail is very busy or the officer may not want to deal with a person so the officer in their discretion can declare a refusal and charge a person with DUI. If this happens the officer will issue a temporary permit to drive for the next 30 days. A permit will not be issued to a person whom already has their license suspended or if the person was driving a commercial vehicle.

Youhave seven (7) days to petition the court for a hearing to contest this license suspension. As opposed to an ALS suspension, mentioned above, this suspension is administered by the county court where the violation took place. The suspension is typically referred to as a BAC or refusal suspension. If you do not request a hearing you will lose your privileges to drive for 1 year and have a $250.00 civil penalty imposed. This would be an absolute one (1) year suspension with no driving privileges of any kind. If you have a prior refusal suspension within the last ten (10) years the court will move to suspend your license for 2 years absolute with no driving privileges of any kind.

It is imperative that you contact me before the lapse of this seven-day window. If we file an objection to this suspension we can review your case and analyze any defenses you may have to this suspension. There are ways to minimize the suspension or to have it thrown out all together, but you have to file an objection to protect your rights.

If the officer has performed a blood draw:

By Idaho law a person is deemed to have consented to evidentiary testing. What this means is under Idaho's implied consent statute, any person who drives or is in actual physical control of a vehicle is deemed to have impliedly consented to evidentiary testing for alcohol at the request of a officer who has reasonable grounds to believe the person was driving under the influence. Putting this bluntly means you have no right to refuse evidentiary testing in Idaho. Typically when a person refuses to provide a breath sample the officer will perform a forced blood draw by calling in a phlebotomist at the jail and having them draw blood which will be sent to the state lab for evidentiary testing.

An officer will not seize your license or provide you with a Notice of Suspension for Failure of Evidentiary Testing. If the blood test result shows that the alcohol concentration of your blood is over the statutory limit of .08 or if you have intoxicating drugs in your system then the Idaho Department of Transportation will mail you the Notice of Suspension. The Notice will indicate when your license suspension will begin. The Department will move to suspend your drivers license for 90 days with the first 30 days being absolute where you have no driving privileges of any kind. After the first 30 days you would be eligible for a work permit as long as your license is valid in Idaho. Until you receive notice of the suspension you can drive as normal. If you had a prior evidentiary failure from a prior DUI within five (5) years, the Department will move to suspend your license for one year with no driving privileges of any kind.

It is imperative that you notify me as soon as you receive a blood draw DUI. When you are notified by the Department, you have seven (7) days to file your notice to contest this suspension. Your seven (7) days begin to run from the date indicated in your notice that will be mailed from the Department. The notice will be mailed to your address on your license. If you have moved and not updated your address you will not receive this notice and you risk being defaulted by the Department.

As a matter of practice, I file my hearing request as soon as my client retains me so that I can monitor this suspension and track it through the system to avoid any problems with the Department.

Back to the Criminal Case:

Once you have been cited for DUI the officer or the jail will give you notice of a date that you need to appear in court. This is the notice on your criminal case and it begins criminal proceedings against you. The criminal case deals with the fines, jail and an additional license suspension separate and apart from the ALS suspension mentioned above. You must personally appear or hire me before this date expires. If you do neither, a warrant will be issued for your arrest. If my client hires me before this date, typically we can appear for the client without the client attending this initial appearance. Timing is of the essence so it is important to contact me at your earliest opportunity.

What am I facing if I'm convicted of DUI?

By Idaho law there are maximum penalties for a DUI. This means there is a maximum fine, jail time and license suspension for each individual offense. It does not mean the judge must impose this penalty just that there is a maximum penalty that they can impose. In some cases you will see the phrase "mandatory minimum." In these particular cases there is a set number of days in jail that a person must serve. However, a skilled attorney can navigate these waters so a person does not have to sit in a jail cell and other options can be employed. There are only a few circumstances where I have seen a judge impose the maximum penalty in a DUI case. Most of the cases are resolved with much lower penalties that you will see here. This is just a basic framework to give you an idea of what you are facing. A lot of factors go into sentencing, that I will discuss with you, that have a large impact on how each individual case ultimately gets resolved.

If you have a 1st time DUI with an alcohol concentration of .08 but less than .20 or a drug DUI the following applies.

May be sentenced to jail for a term not to exceed six (6) months.

May be fined an amount not to exceed one thousand dollars ($1,000).

Shall have his driving privileges suspended by the court for a period of thirty (30) days which shall not be reduced and during which thirty (30) day period absolutely no driving privileges of any kind may be granted. After the thirty (30) day period of absolute suspension of driving privileges has passed, the defendant shall have driving privileges suspended by the court for an additional period of at least sixty (60) days, not to exceed one hundred fifty (150) days during which the defendant may request restricted driving privileges which the court may allow, if the defendant shows by a preponderance of the evidence that driving privileges are necessary for his employment or for family health needs.

Shall undergo an alcohol evaluation.

If you have a 2nd time DUI with a prior DUI within 10 years the following applies.

Shall be sentenced to jail for a mandatory minimum period of not less than ten (10) days the first forty-eight (48) hours of which must be consecutive, and five (5) days of which must be served in jail, as required by 23 U.S.C. section 164, and may be sentenced to not more than one (1) year, provided however, that in the discretion of the sentencing judge, the judge may authorize the defendant to be assigned to a work detail program within the custody of the county sheriff during the period of incarceration.

May be fined an amount not to exceed two thousand dollars ($2,000).

Shall surrender his driver's license or permit to the court.

Shall have his driving privileges suspended by the court for an additional mandatory minimum period of one (1) year after release from confinement, during which one (1) year period absolutely no driving privileges of any kind may be granted.

Shall, while operating a motor vehicle, be required to drive only a motor vehicle equipped with a functioning ignition interlock system following the one (1) year mandatory license suspension period.

Shall undergo an alcohol evaluation.

If you have a 3rd time DUI with a prior DUI within 10 years the following applies.

This violation shall be considered a felony.

Shall be sentenced to the custody of the State Board of Correction for not to exceed ten (10) years. Should the court impose any sentence other than incarceration in the state penitentiary, the defendant shall be sentenced to the county jail for a mandatory minimum period of not less than thirty (30) days, the first forty-eight (48) hours of which must be consecutive, and ten (10) days of which must be served in jail, as required by 23 U.S.C. section 164

May be fined an amount not to exceed five thousand dollars ($5,000).

Shall surrender his driver's license or permit to the court.

Shall have his driving privileges suspended by the court for a mandatory minimum period of one (1) year after release from imprisonment, and may have his driving privileges suspended by the court for not to exceed five (5) years after release from imprisonment, during which time he shall have absolutely no driving privileges of any kind.

Shall, while operating a motor vehicle, be required to drive only a motor vehicle equipped with a functioning ignition interlock system following the mandatory one (1) year license suspension period.

Shall undergo an alcohol evaluation.

If you have 2nd time felony DUI and have a prior felony DUI within 15 years the following applies.

This violation shall be considered a felony.

Shall be sentenced to the custody of the State Board of Correction for not to exceed ten (10) years. Should the court impose any sentence other than incarceration in the state penitentiary, the defendant shall be sentenced to the county jail for a mandatory minimum period of not less than thirty (30) days, the first forty-eight (48) hours of which must be consecutive, and ten (10) days of which must be served in jail, as required by 23 U.S.C. section 164

May be fined an amount not to exceed five thousand dollars ($5,000).

Shall surrender his driver's license or permit to the court.

Shall have his driving privileges suspended by the court for a mandatory minimum period of one (1) year after release from imprisonment, and may have his driving privileges suspended by the court for not to exceed five (5) years after release from imprisonment, during which time he shall have absolutely no driving privileges of any kind.

Shall, while operating a motor vehicle, be required to drive only a motor vehicle equipped with a functioning ignition interlock system following the mandatory one (1) year license suspension period.

Shall undergo an alcohol evaluation.

If you have an excessive alcohol concentration of a .20 or above the following applies.

Shall be sentenced to jail for a mandatory minimum period of not less than ten (10) days, the first forty-eight (48) hours of which must be consecutive, and may be sentenced to not more than one (1) year;

May be fined an amount not to exceed two thousand dollars ($2,000).

Shall surrender his driver's license or permit to the court.

Shall have his driving privileges suspended by the court for an additional mandatory minimum period of one (1) year after release from confinement, during which one (1) year period absolutely no driving privileges of any kind may be granted.

Shall undergo an alcohol evaluation.

If you have a prior excessive alcohol concentration DUI the following applies.

This violation shall be considered a felony.

Shall be sentenced to the custody of the State Board of Correction for a term not to exceed five (5) years; should the court impose any sentence other than incarceration in the state penitentiary, the defendant shall be sentenced to the county jail for a mandatory minimum period of not less than thirty (30) days; and May be fined an amount not to exceed five thousand dollars ($5,000).

Shall surrender his driver's license or permit to the court.

Shall have his driving privileges suspended by the court for a mandatory minimum period of one (1) year after release from imprisonment, and may have his driving privileges suspended by the court for a period not to exceed five (5) years after release from imprisonment, during which time he shall have absolutely no driving privileges of any kind.

Shall, while operating a motor vehicle, be required to drive only a motor vehicle equipped with a functioning ignition interlock system following the mandatory license suspension period.

Shall undergo an alcohol evaluation.

If you are under 21 and your alcohol concentration is less that a .08 the following applies. The legal limit for a person under the age or 21 is .02

Shall be fined an amount not to exceed one thousand dollars ($1,000).

Shall have his driving privileges suspended by the court for a period of one (1) year, ninety (90) days of which shall not be reduced and during which period absolutely no driving privileges of any kind may be granted. After the period of absolute suspension of driving privileges has passed, the defendant may request restricted driving privileges which the court may allow, if the defendant shows by a preponderance of the evidence that driving privileges are necessary as deemed appropriate by the court.

Shall be required to undergo an alcohol.

A. For a Second time violation the following applies:

Shall be sentenced to jail for a mandatory minimum period of five (5) days, as required by 23 U.S.C. section 164, not to exceed thirty (30) days.

Shall be fined an amount of not less than five hundred dollars ($500) nor more than two thousand dollars ($2,000).

Shall have his driving privileges suspended by the court for a period not to exceed two (2) years, one (1) year of which shall be absolute and shall not be reduced and during which period absolutely no driving privileges of any kind may be granted.

Shall, while operating a motor vehicle, be required to drive only a motor vehicle equipped with a functioning ignition interlock system following the mandatory one (1) year license suspension period.

Shall undergo an alcohol evaluation.

B. For a Third Time Violation the following applies:

Shall be sentenced to jail for a mandatory minimum period of ten (10) days, as required by 23 U.S.C. section 164, not to exceed six (6) months.

Shall be fined an amount of not less than one thousand dollars ($1,000) nor more than two thousand dollars ($2,000).

Shall surrender his driver's license or permit to the court.

Shall have his driving privileges suspended by the court for a mandatory minimum period of one (1) year, during which period absolutely no driving privileges of any kind may be granted, or until such person reaches the age of twenty-one (21) years, whichever is greater.

Shall, while operating a motor vehicle, be required to drive only a motor vehicle equipped with a functioning ignition interlock system following the mandatory one (1) year license suspension period; and

Shall undergo an alcohol evaluation.

If you have been charged with Aggravated DUI the following applies:

This violation shall be considered a felony.

Any person causing great bodily harm, permanent disability or permanent disfigurement to any person other than himself in committing a violation of the provisions of section 18-8004(1)(a) or (1)(c), Idaho Code.

Shall be sentenced to the State Board of Correction for not to exceed fifteen (15) years. Should the court impose any sentence other than incarceration in the state penitentiary, the defendant shall be sentenced to the county jail for a mandatory minimum period of not less than thirty (30) days, the first forty-eight (48) hours of which must be consecutive.

May be fined an amount not to exceed five thousand dollars ($5,000).

Shall surrender his driver's license or permit to the court.

Shall have his driving privileges suspended by the court for a mandatory minimum period of one (1) year after release from imprisonment, and may have his driving privileges suspended by the court for not to exceed five (5) years after release from imprisonment, during which time he shall have absolutely no driving privileges of any kind.

Shall be ordered by the court to pay restitution,

Any evidence of conviction under this section shall be admissible in any civil action for damages resulting from the occurrence. A conviction for the purposes of this section means that the person has pled guilty or has been found guilty, notwithstanding the form of the judgment(s) or withheld judgment(s).

If you are enrolled in a drug court, DUI court or a mental health court or similar problem solving court the following would apply to your driver's license notwithstanding the provisions listed above.

A person who is enrolled in and is a participant in good standing in a drug court or mental health court approved by the supreme court drug court and mental health court coordinating committee under the or other similar problem solving court utilizing community-based sentencing alternatives, shall be eligible for restricted noncommercial driving privileges for the purpose of getting to and from work, school or an alcohol treatment program, which may be granted by the presiding judge of the drug court or mental health court or other similar problem solving court, provided that the offender has served a period of absolute suspension of driving privileges of at least forty-five (45) days, that an ignition interlock device is installed on each of the motor vehicles owned or operated, or both, by the offender, and that the offender has shown proof of financial responsibility provided that the restricted noncommercial driving privileges may be continued if the offender successfully completes the drug court, mental health court or other similar problem solving court, and that the court may revoke such privileges for failure to comply with the terms of probation or with the terms and conditions of the drug court, mental health court or other similar problem solving court program.

These courts are specialty courts that not all people may qualify for. I will review with you the qualifications and explore whether or not you may be eligible for these type of diversion courts. These courts do not take away the penalties associated with DUI, but do give the courts latitude to grant restricted driving privileges for cases where the person my be suffering an absolute license suspension,

Conclusion:

DUIs are complex due to the nature of the crime and interplay of the ALS administered by the Department of Transportation. A poorly defended DUI can result in an extended license suspension or an unfortunate stay in the county jail. All of these results can be easily avoided in many of the cases. Additionally, for first time offenders there is a mechanism by which I can ask the court to dismiss your case after the completion of your probation. This would allow a person to truthfully reveal that they have never been convicted of DUI. This is a very helpful tool when dealing with employers and future job applications. The overriding theme for a DUI case is; the quicker you make the decision to hire an attorney the better job they can do.