DUI-OUI Lawyer

dui-lawyer-mauiThe law in Hawaii was called “Driving Under the Influence of an Intoxicant” (DUI) and has been changed to “Operating a Motor Vehicle Under the Influence of an Intoxicant” (OUI).  For all practical purposes the charges are the same. If charged with DUI – OUI, it is a good idea to contact a DUI-OUI Lawyer by calling our office here in Wailuku, Maui.

There are two types of OUI charges. Operating a Motor Vehicle Under the Influence of Alcohol and Operating a Motor Vehicle Under the Influence of Drugs.

OUI Alcohol. While commercials on both radio and television proclaim “over the limit, under arrest.” That is a misnomer. You can be placed under arrest and convicted of the charge of OUI even if you are under the .08 limit. If your blood alcohol level is between .05 and .08 you may still be convicted of OUI if other evidence proves beyond a reasonable doubt that you are under the influence of alcohol in an amount sufficient to impair your normal mental faculties or ability to care for yourself and guard against casualty.

If you are under 21 years old and you have a blood alcohol level between .02 and .079 you may be charged and convicted of Operating a vehicle after consuming a measurable amount of alcohol; persons under the age of twenty-one. Those penalties can be discussed with me in my office. Should your blood alcohol level be above .08 you may be charged and convicted of the charge of Operating a Motor Vehicle Under the Influence of an Intoxicant.

You may also be charged with Driving Under the Influence of Drugs. Unlike an OUI alcohol case there is no limit issue when it comes to drugs. The drugs that can result in charge and conviction are illicit/unprescribed drugs as well as legally prescribed medication. The State only needs to prove that you operated a motor vehicle while under the influence of any drug that impairs the person’s ability to operate the vehicle in a careful and prudent manner.

There is also a civil administrative process that deals solely with your Driver’s License. The Administrative Driver’s License Revocation Office [ADLRO] oversees this process that permits the State of Hawaii to revoke your license even if you are not convicted of a crime.

These matters will be discussed below.

Contact With The Police

There are three primary ways that people come into contact with the police in a DUI/OUI context. You are stopped at a roadblock, the police have reasonable suspicion to pull your vehicle over and involvement in a traffic accident.

Roadblocks are legal and constitutional. They must be set up and run with specific instructions that comply with the Constitution. Those rules include when vehicles may be pulled into a roadblock. There must be a specific numerical pattern specified prior to the beginning of the roadblock.(i.e. every tenth car) Maui Police Department uses a numerical pattern of two cars. The roadblock will be deemed unconstitutional should there be a deviation from the roadblock plan. Should the roadblock be deemed unconstitutional then all evidence gathered at the roadblock will be excluded from evidence in Court. We will discuss this matter further during the preparation of your case.

The police do not need to have probable cause to pull you over. They only need reasonable suspicion. The difference is a legal standard. The standard for reasonable suspicion is lower than probable cause.

You may also be arrested if there is a traffic accident. Please remember that even if the accident is another person’s fault you may still be arrested for a crime.

Field Sobriety Tests

The police will probably request that you perform field sobriety tests at the scene. We can discuss the validity of those tests during your consultation. You are not required to perform
those tests. Your performance on those tests are usually not video taped and will be used against you in both the ADLRO process and the criminal process.

The police may also request that you take a breath test at the scene. You are not required to do so and there are no consequences for your refusal. This test cannot be used against you in your criminal trial. This test can only be used to support your arrest by the police. This test is separate and apart from the testing requested at the police station.

At The Police Station

You will be handcuffed and taken to the police station if the police have probable cause to believe that you have been driving under the influence of an intoxicant. Once at the police station the police are required to inform you that, in the case of an OUI alcohol arrest, you may take a breath test, a blood test, both a breath and blood test or refuse all testing. In the case of an OUI drugs arrest, you may take a urine test, a blood test, both a urine and blood test or refuse all testing.

Your driver’s license will be taken by the police and forwarded to the Administrative Driver’s License Revocation Office in the event that your breath test is over .08, if you refuse testing or if a blood or urine test is requested. I will discuss the issues surrounding your driver’s license later in this section.

Refusing to take a chemical test at the police station also carries with it potential criminal charges. If the police have probable cause to believe that you are under the influence of a alcohol/drugs and you are properly informed regarding your choices of chemical testing then you will probably be charged with Refusing a Chemical test which is a “petty misdemeanor.”

If the police formally charge you with a crime they will set bail for you. Typically on Maui the bail for the charge of OUI is $1,000.00. This must be posted in cash or a bail bond. Please see the section on Bailfor more information.

The police department should issue you a temporary permit. This permit is only issued if you have a current driver’s license in your possession. This permit is only good for 30 days from the date of your arrest.

Administrative Driver’s License Revocation – ADLRO

The State of Hawaii is permitted to take your driver’s license prior to any conviction through the Administrative Driver’s License Revocation process. This process is separate from your criminal charge. This civil process allows the State to revoke your license with less than proof beyond a reasonable doubt.

This process is time sensitive and requires the agency to act within the set statutory time limits. Failure to do so will result in the termination of your case with the agency. You are also required to respond to the agency within certain time limits if you want to challenge the revocation.

You are entitled to a hearing to challenge your revocation. I will assist you in that hearing.

The ADLRO may revoke your license as follows:

  1. A one year revocation of license and privilege to operate a vehicle, if your record shows no prior alcohol enforcement contact or drug enforcement contact during the five years preceding the date the notice of administrative revocation was issued. Ifyou refuse to be tested then your license will be revoked for two years.
  2. An eighteen month revocation of license and privilege to operate a vehicle, if your record shows one prior alcohol enforcement contact or drug enforcement contact during the five years preceding the date the notice of administrative revocation was issued. Ifyou refuse to be tested then your license will be revoked for three years.
  3. A two-year revocation of license and privilege to operate a vehicle, if your record shows two prior alcohol enforcement contacts or drug enforcement contacts during the five years preceding the date the notice of administrative revocation was issued. Ifyou refuse to be tested then your license will be revoked for four years.
  4. A minimum of five years up to a maximum often years revocation of license and privilege to operate a vehicle, if your record shows three or more prior alcohol enforcement contacts or drug enforcement contacts during the ten years preceding the date the notice of administrative revocation was issued. If you refuse to be tested then your license will be revoked for ten years.

This revocation means that you will need to satisfy certain criteria before you are eligible to re­ license after the revocation period. You will need to obtain a substance abuse evaluation and comply with any recommended conditions. You will also need to obtain a re-licensing form. After this is complete you will need to take your permit test and your driver’s test to obtain a driver’s license along with payment of a reinstatement fee.

During the term of your revocation you are not permitted to drive except in two situations.

Work

This section applies to you if you are required to drive for work purposes during work hours and the vehicle that you are driving is not your personal vehicle. We can obtain permission from the ADLRO to allow you to drive a work vehicle. We will need to have detailed information about this vehicle that is contained on the vehicle registration card. Your employer will then be
required to sign a paper regarding this permit. There are certain restrictions regarding this type of
permit including 1) You may only drive during specified hours of employment, not to exceed twelve hours per day, and only for activities solely within the scope of the employment;(2) Only the vehicles specified; and (3) Only if the permit is kept in the respondent’s possession while operating the employer’s vehicle.

This information does not apply to CDL licenses.

Your Vehicle

You will need to install an interlock device into your vehicle. This service currently costs $84.00
to install and $89.00 per month. Once this is installed and you have obtained an “ignition interlock permit”you may drive this vehicle for any purpose including work. There are no restriction regarding when and where you drive this vehicle. This permit only allows you to drive this vehicle.

To install an interlock device:

  1. You must call “Smart Start” at 1-800-880-3394. Tell them that you need to schedule an appointment to install an interlock devise into your vehicle.
  2. The only installation location on Maui is “Certified Sounds.” Call them @ 244- 7900 after you speak with Smart Start and confirm your appointment.
  3. When are scheduled to have this device installed you need to take your vehicle to 401 Hookahi Street, Wailuku, Maui, Hawaii. You must bring with you your registration and current insurance card.
  4. You will be required to watch a video regarding this devise while you are at “Certified Sounds.”

After this device is installed please bring the lease and your current insurance card to my office. We will make copies and send off the request for an “Interlock Driving Permit.” The ADLRO will mail us your permit. We will call you to pick up the permit. At that time you will be legally able to drive during the revocation period.

This interlock device permits you to drive that vehicle 24/7.

If your license is revoked you must not drive unless you are permitted to by the ADLRO or the Court. Failure to abide by these restrictions could result in a conviction for a new charge that carries with it further license revocation and mandatory jail terms.

DUI-OUI Criminal Charges

You were given a court date when you posted bail. The bail sheet will tell you the date, time and location of your court hearing. You must be present at that hearing or have a lawyer present on your behalf.

This first court date is called the arraignment and plea. You are formally told, in court, what the charges are against you. You should not enter a plea of “guilty” or “no contest” to any charges at the arraignment. There are exceptions to my rule that I will discuss with you if necessary. A plea of “not guilty” does not upset the judge and is not a statement of fact. It is a legal term that simply says that you are currently asserting your right to be presumed innocent unless and until the State proves you guilty beyond a reasonable doubt. You should enter a plea of”not guilty” so that your attorney may properly investigate and evaluate your case. This process is impossible prior to your arraignment and plea. While an attorney can obtain police reports from the Administrative Driver’s License Revocation Office s/he cannot get all of the information necessary to conduct the necessary factual and legal investigation necessary to protect your rights.

The Court will give you a pre-trial conference date if you enter a plea of “not guilty.” Your attorney can begin the process of evaluating your case. This usually involves obtaining evidence and conducting legal research that is unique to each case. Your attorney should meet with you and discuss the strengths and weaknesses of your case.

Your lawyer may need to file motions(requests to the court) regarding the collection of evidence, constitutional issues and/or outright dismissal. These motions will usually be heard prior to trial.

At any point prior to trial your case may be settled. You should discuss with your lawyer the settlement offer and the reasons for settlement. Those reasons should not be based on specific facts in your case. The attorney should discuss both the strengths and weakness of your case.

Should your case proceed to trial the judge would need to find you guilty beyond a reasonable doubt. If the state is unable to do so then you will be found “not guilty.” If you are found guilty of operating a vehicle under the influence of an intoxicant then you could be facing the following penalties without possibility of probation or suspension of sentence as follows:

  1. For the first offense, or any offense not preceded within a five-year period by a conviction for an offense under this section or section 291E-4(a):
    1. A fourteen-hour minimum substance abuse rehabilitation program, including education and counseling, or other comparable program deemed appropriate by the court;
    2. One-year revocation of license and privilege to operate a vehicle during the revocation period and installation during the revocation period of an ignition interlock device on any vehicle operated by the person;
    3. Any one or more of the following:
      1. Seventy-two hours of community service work;
      2. Not less than forty-eight hours and not more than five days of imprisonment;
      3. A fine of not less than $150 but not more than $1,000;
    4. A surcharge of $25 to be deposited into the neurotrauma special fund; and
    5. A surcharge, if the court so orders, of up to $25 to be deposited into the trauma system special fund;
  2. For an offense that occurs within five years of a prior conviction for an offense under this section or section 291E-4(a):
    1. Revocation for not less than eighteen months nor more than two years of license and privilege to operate a vehicle during the revocation period and installation during the revocation period of an ignition interlock device on any vehicle operated by the person;
    2. Either one of the following:
      1. Not less than two hundred forty hours of community service work; or
      2. Not less than five days but not more than thirty days of imprisonment, of which at least forty-eight hours shall be served consecutively;
    3. A fine of not less than $500 but not more than $1,500;
    4. A surcharge of $25 to be deposited into the neurotrauma special fund; and
    5. A surcharge of up to $50 if the court so orders, to be deposited into the trauma system special fund;
  3. For an offense that occurs within five years of two prior convictions for offenses under this section or section 291E-4(a):
    1. A fine of not less than $500 but not more than $2,500;
    2. Revocation for two years of license and privilege to operate a vehicle during the revocation period and installation during the revocation period of an ignition interlock device on any vehicle operated by the person;
    3. Not less than ten days but not more than thirty days imprisonment, of which at least forty-eight hours shall be served consecutively;
    4. A surcharge of $25 to be deposited into the neurotrauma special fund; and
    5. A surcharge of up to $50 if the court so orders, to be deposited into the trauma system special fund;
  4. In addition to a sentence imposed under paragraphs (1) through (3), any person eighteen years of age or older who is convicted under this section and who operated a vehicle with a passenger, in or on the vehicle, who was younger than fifteen years of age, shall be sentenced to an additional mandatory fine of $500 and an additional mandatory term of imprisonment of
    forty-eight hours; provided that the total term of imprisonment for a person convicted under this paragraph shall not exceed the maximum term of imprisonment provided in paragraph (1), (2), or (3), as applicable. Notwithstanding paragraphs ( 1) and (2), the revocation period for a person sentenced under this paragraph shall be not less than two years; and
  5. If the person demonstrates to the court that the person:
    1. Does not own or have the use of a vehicle in which the person can install an ignition interlock device during the revocation period; or
    2. Is otherwise unable to drive during the revocation period, the person shall be absolutely prohibited from driving during the period of applicable revocation provided in paragraphs (1) to (4); provided that the court shall not issue an ignition interlock permit pursuant to subsection (i) and the person shall be subject to the penalties provided by section 291E-62 if the person drives during the applicable revocation period.

The judge cannot revoke your license if it has already been revoked by the ADLRO.

SEEK LEGAL ADVICE

If you are stopped and arrested for DUI OUI please contact me. I am happy to provide you with free initial consultation of your case. This consultation is done in person and is completely confidential. We will discuss your case and the process in more detail.

I hope you never need to use me. If you’re in trouble and need help call me.