DWI Questions & Answers

What is a DWI?

DWI is a two part law. This means that you can be convicted under either one of the following two sections of the law:

1. It is unlawful for any person who is intoxicated to operate or be in actual physical control of a motor vehicle.

2. It is 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 eight-hundredths (0.08).

This means that the prosecutor only has to prove one of these facts:  you were either intoxicated or you had a BAC of .08 or higher.  This is how they are able to prove a DWI without a breath alcohol test and even if the BAC is lower than .08.

What does “intoxicated” mean as used in the DWI law?

“Intoxicated” means influenced or affected by the ingestion of alcohol, a controlled substance, any intoxicant, or any combination thereof, 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.

Will you use an expert on my case?

Our lawyers frequently use experts on our cases.  For standardized field sobriety tests we use Tony Corrotto or Lance Platt.  For breath testing we use Dr. Roger Hawk.  The experts vary in expense on a case by case basis.

What are the penalties for DWI?

Aside from the embarrassment, increased insurance premiums, and possible interference with employment and professional licensure, in Arkansas Courts you can look forward to:

1st Offense

Jail:  Minimum-24 hours; Maximum-1 year

Fines:  Minimum-$150; Maximum- $1,000

Court Costs:  $300

Classes:  Alcohol education class and MADD Victim Impact Panel

Driver’s License:  DL suspension for 6 months. You will be eligible for an interlock device.  (If it is a DWI-Drugs, then you will be eligible for a work permit.)

2nd Offense

Jail:  Minimum-7 days; Maximum-1 year

Fines:  Minimum-$400; Maximum-$3,000

Court Costs:  $300

Classes:  Alcohol Education Course and MADD Victim Impact Panel

Driver’s License:  DL suspension for 2 years; eligible for an interlock device.

3rd Offense

Jail:  Minimum-90 days; Maximum-1 year

Fines:  Minimum-$900; Maximum-$5,000

Court Costs:  $300

Classes:  Alcohol Education Course and MADD Victim Impact Panel

Driver’s License: DL suspension for 30 months; eligible for an interlock device.

4th Offense – Felony

Jail:  Minimum-1 year; Maximum-6 years in prison

Fines:  up to $10,000 fine

Court Costs: $300

Driver’s License:  Revocation of DL for 4 years

Classes:  Alcohol Education Course and MADD Victim Impact Panel

Enhancements:  There are certain factors that may result in enhanced penalties.  They are fact specific and depend on the unique circumstances of different kinds of cases. Call one of our DWI attorneys to discuss the facts of your case.

Is a DWI-Drugs treated the same as a DWI?

Yes, as stated above, the DWI statute defines intoxication as being influenced or affected by the ingestion of alcohol, a controlled substance, any intoxicant, or any combination thereof.

Does it matter if the drug (controlled substance or intoxicant) was prescribed to me?

No, but it does matter what the drug is. Many prescribed drugs are not schedule I-VI drugs and therefore, do not fall under the DWI statute. A “Controlled Substance” is a drug, substance, or immediate precursor in Schedules I through VI. The fact that any person charged with a violation of this act is or has been entitled to use that drug or controlled substance under the laws of this state shall not constitute a defense against any charge of violating this act. This statute includes both legal and illegal drugs. There is currently a debate as to whether a non-controlled substance is classified as an intoxicant. Many police officers are arresting people for DWI when the person has taken medication that is not a controlled substance. We have had mixed results in Courts throughout Arkansas. Our attorneys have justifiably argued (with some success) that the statute is too vague as to the definition of “intoxicant”. The Courts that have disagreed did so by focusing on the client’s level of impairment. Use caution and call one of our Arkansas DWI attorneys for more information.

Can I get a DWI if I wasn’t driving?

Ironically, the act of “driving” does not have to be proved by the State in order to convict someone under the driving while intoxicated statute. The law states you must not “operate” or “be in actual physical control of a motor vehicle” if you are intoxicated or have a BAC of .08 or greater. The Courts have interpreted that to mean having the keys in the ignition, whether the vehicle is running or not. Generally, the police will attempt to prove actual physical control by asking if you have been driving or by other circumstantial evidence. The law has become very muddled regarding this element of the crime. If you have a specific question, you should contact our office and one of our DWI attorneys can determine if this defense applies to your case.  We have successfully defended people charged with DWI by showing that the State could not prove that the client was in actual physical control of the vehicle.

Can I get a DWI if I was not on public roadway?

The law does not require the operation of a vehicle on a public roadway. Many people have gotten DWIs on private property. This does, however, raise the issue of whether the police had the authority under Rule 3.1(probable cause to make a seizure) or 2.2(approaching for the purposes of investigation while not in custody) to actually make contact with you. Call our office and speak with a DWI attorney to determine if your specific facts allow for such a defense.

Is a four wheeler a motor vehicle?

A vehicle is defined as every vehicle which is self-propelled and every vehicle which is propelled by electric power obtained from overhead trolley wire but not operated upon rails. This would include four wheelers, cars, trucks, electric wheel chairs, golf carts, etc…

Can my DWI be pled down to a careless driving?

Yes and No. State law prohibits the reduction of a DWI to a lesser charge. You must go to trial or plead guilty. Federal law does not have the same prohibition, and in some instances you may be able to plea to a reduced charge. However, almost all of the DWIs in Arkansas are charged under state law, and, as stated above, DWIs are one of the only crimes in which the prosecutors are not allowed to negotiate or reduce the DWI to a lesser charge.  This is why it is so important that you hire a lawyer experienced in taking DWIs to trial.    

Can I get a work permit?

Yes and No. In the past, work permits were often provided to those charged with DWI and allowed driving only during proscribed hours and only for certain activities such as work, school and DWI education classes.  Current law allows for work permits only in cases of DWI-Drugs and for DUI cases for those under 21 years old.  For those charged with DWI, driving is only allowed after an interlock device has been installed in the person’s vehicle.  But, unlike work permits, once the interlock has been installed, there are no restrictions on driving for a first offense DWI. There are different requirements for people who drive company cars.  Contact one of our DWI attorneys to see how these restrictions may apply to you.

What is an interlock device?

An interlock device is a machine hooked to your vehicle’s ignition that prevents your car from starting if there is a detectable amount of alcohol on your breath. You must first blow into the device to start the vehicle and, then, at randomly announced times, you must blow into the device again to keep the vehicle operating.  There are several local companies that install the devices and the price for installation and monthly maintenance vary.  A list of the various companies will be given to you by Driver Control when you get your interlock order.

What if I refused to take a BAC test offered by the officer?

The officer may be able to get a warrant to obtain a blood sample for blood alcohol concentration testing; if no blood is taken, though, the officer will have no evidence of what your BAC was at the time. However, if you do not take the offered BAC test, you will most likely also be charged with Refusal to Submit. Refusal is an additional charge and carries some stiff penalties in addition to those for DWI.  Also, a lack of a BAC level will not prohibit the prosecution from proving that you are guilty  of DWI.  They will use evidence from the police officer to prove intoxication.  Additionally, the fact that someone refuses to blow can be used as evidence of consciousness of guilt.  In other words, the prosecution will tell the judge that the reason you did not blow is that you knew you were over the limit.  

What if I had drugs in my system, does that mean I am guilty of DWI?

No, the mere presence of drugs in your system does not mean you are guilty of DWI-drugs; the State still must prove that you were impaired by the drugs. Many people today have drugs in their system and function normally. The presence of drugs and the inability to do as well as the officer expects on field tests does not mean you are impaired by the drugs. However, many people are charged under these circumstances. Sometimes the police will do what is called a DRE (Drug Recognition Expert) exam. It is a process in which the officer looks at your pupil size, takes your blood pressure, checks your temperature, etc.  Based on these observations, the officer will give his opinion about the kind of drug he believes you have taken and by which you are impaired. These exams are not required under the law and, unlike the BAC test, there is no penalty for refusing to take them. Many people still do not understand the complexity of these exams or the problems that can occur during the evaluation. Please call one of our DWI attorneys.  We have been trained in the DRE process and will be able to fully explain the 12 step evaluation used by police to charge someone with DWI-Drugs.

Click book to purchase
Arkansas DWI Defense:
The Law & Practice Book
by John Collins
Purchase John Collins DWI Book