Louisiana DWI FAQ's

1. If I'm stopped by a police officer and he starts asking me questions, what should I do?

You have the right to remain silent. This right applies to all stages of a criminal proceeding, including the initial questions asked by a police officer. If the answer to a question is or may be incriminating, it is best to simply say "I would like to consult with my lawyer before I answer any questions". Be polite but be firm.

2. Do I have to take a field sobriety test if a police officer tells me to?

No. You do not have to submit to any part of a field sobriety test if you choose not to. This means you do not have to do the follow the pen test, the alphabet test, one leg stand, heal to toe, walk and turn, finger to nose, feet together - eyes closed - head back, or any other type "field sobriety test" offered to you by a police officer. And, unlike refusing to submit to a breath alcohol test, refusing to submit to a field sobriety test cannot result in the suspension of your driver's license.

3. How will the officer decide whether to arrest me for DWI?

This varies greatly from officer to officer. Factors which the officer will consider include:

1. Manner in which you were operating the motor vehicle

2. Odor of alcoholic beverage

3. Speech pattern (good, slurred, incoherent)

4. Bloodshot eyes

5. Balance

6. Admissions

7. Whether you understand the officer's questions and/or instructions.

8. General appearance

9. Performance (if any) on a field sobriety test.

4. When do I have the right to call a lawyer?

You have the right to call a lawyer before you answer any questions. You do not have a right to call a lawyer before you decide whether to submit to a field sobriety test or a breath alcohol test. However, you can always ask.

5. Should I agree to take the breath alcohol test?

Too many factors are involved in making this decision to give one definitive answer to the question. Factors to be weighed in reaching this decision are as follows:

1. Your driver's license may be suspended for six months for a first refusal or 545 days for a second refusal within a five year period.

2. Your license may be suspended for 90 days for a first submittal and 365 days for a second submittal (with a result of .10 or more) within a five year period.

3. Louisiana has a "per se" statute which means if you submit to a breath alcohol test and the reading is .10 or more and the prosecution is able to get the test results into evidence at trial, this would be proof of one element of the DWI offense. (The State would not have to prove that you were "under the influence").

4. The DWI conviction, itself, carries with it the possibility of a driver's license suspension. For a first conviction the potential suspension is 90 days, for a second the potential suspension is 12 months and for a third or fourth DWI the potential suspension is 24 months.

5. Whether the arrestee will actually read over or under .10.

6. Whether the arrestee has any prior DWI convictions with 10 years.

6. What if the officer didn't give me the Miranda warning, what does this mean?

A law enforcement officer is supposed to give the "Miranda warning" once he has "taken a person into custody". If the officer does not, then any incriminating statements made by the accused as a result of questioning by the law enforcement officer cannot be used against him.

7. What is the first thing I should do after I am arrested?

You should immediately consult with an attorney. The sooner you consult with an attorney, the sooner he can begin collecting evidence which is favorable to your case. The sooner friendly witnesses can be interviewed, the better their memories will be of the events which occurred surrounding your arrest. Additionally, certain other forms of physical evidence are more likely to be available and accurate if collected in close proximity to your arrest. Again remember that you only have 15 days from the date of your arrest to apply for an administrative hearing to contest the suspension of your driver's license.

8. Can I represent myself or should I hire a lawyer?

You have an absolute right to represent yourself if you choose to do so. However, this is probably not a good idea. An experienced attorney knows how to investigate and evaluate a case in order to obtain the best possible result for you. Additionally, the criminal penalties and civil penalties resulting from a DWI conviction are so serious that a person should never consider "just pleading guilty" before at least consulting with an attorney.

9. The officer took my driver's license from me; can I still drive?

Yes ...if you had a valid driver's license at the time of the arrest. If you did have a valid driver's license at the time of your arrest, the officer should have given you a temporary license which is good for 30 days. And, if you request an administrative hearing within 15 days of your arrest and prevail at that hearing, you will never loose your driver's license as a result of your submittal or refusal to take a breath alcohol test.

10. How do I find the best lawyer to represent me?

You should look for the lawyer who has the best reputation for handling the kind of case that you have. If you have been arrested for DWI then you should try to find the lawyer who has the best reputation for handling DWI cases. If you know an attorney personally, or you are being represented by an attorney in another matter, you could start by asking him for recommendations. You could call other attorneys in your area and ask them. If you know someone else who has been arrested for a DWI you might ask him if he had an attorney and, if so, if he was satisfied with the attorney's work.

Memberships in organizations such as the National College for DUI Defense, National Association of Criminal Defense Lawyers and Louisiana Association of Criminal Defense Lawyers are also good indicators.

Once you have selected an attorney or attorneys to interview, you should determine how much experience they have in both handling and TRYING DWI cases. Additionally, make sure you are clear on the "financial aspects" of the attorney's representation.

11. What are the penalties for DWI?

Please see:

Louisiana's DWI Law

Louisiana's Driver's License Suspension Laws

12. If I took the breath test, what can a lawyer do for me?

There are many issues to be resolved in a DWI case. The failure of the State to prevail on any of these issues could result in an acquittal. An example of some of those issues is as follows:

1. Probable cause. Did the law enforcement officer have reasonable grounds to stop you prior to the arrest. If the court determines that he did not, then all evidence which was seized after the stop must be suppressed from use at trial. This will result in an acquittal.

2. Operation. Can the law enforcement officer actually prove that you were operating a motor vehicle. If he cannot, then the end result will be an acquittal.

3. Did the officer have reasonable grounds to believe that you were operating a motor vehicle on a public highway under the influence of alcoholic beverages before he requested that you submit to the breath alcohol test. If not, then he cannot lawfully request that you submit to the test.

4. Can the prosecution lay a proper foundation to admit the breath alcohol test at trial? Before the court can accept a breath alcohol test into evidence, the prosecution must prove that the test was administered according to rules and regulations promulgated by the Louisiana Department of Public Safety and Corrections and according to statutory law. If the prosecution cannot do this, then the breath test is inadmissible.

5. Validity of the Breath Alcohol Test. The results of a breath alcohol test are not nearly as accurate as many people assume. There are many variables which can call into question the accuracy of the results.

6. Multiple Offenders. Before you can be convicted of a second, third or fourth offence, the prosecution must prove that the prior offense or offenses were legally obtained. An attorney can evaluate the evidence of the prior offences and determine if one or more of them should be stricken from the case. This can greatly reduce your potential sentence.

7. Driver's License. Even if you took the breath alcohol test, a number of issues must be resolved before the State can suspend your driver's license.

8. If your license is suspended, there are options available which may allow you to obtain a hardship license in order to get to and from work