While the holidays are meant for coming together and giving thanks for what we have, this year will no doubt be a little different. Whether you are Zoom calling your family or choose to travel, the Wednesday before Thanksgiving is a dangerous time to be on the road. Thanksgiving Eve has come to represent an evening of heavy drinking, due to many individuals returning to their hometowns celebrating the holiday.

What Should I Expect if I’m Pulled Over?

If you are pulled over this holiday and it is your first offense, there are three charges you could potentially face:

1. Felony Drunk Driving Causing Serious Impairment of Bodily Function – If involved in an accident causing serious injury
2. Super Drunk – Blood-Alcohol Level is above 0.17
3. Operating While Intoxicated (OWI) – Blood-Alcohol Level is 0.08 or higher

What If This Is Not My First Drinking and Driving Offense?

If you are in this situation, the first thing I would suggest is to contact an attorney. If you are charged with a Drinking and Driving offense twice in the past 7 years – no matter the initial charge – you will be charged with a second offense. This charge carries a potential 1-year suspension of driving privileges, and substantially more severe fines and restrictions than a first-offense Drunk Driving.

Can I Potentially Lose My License?

Absolutely, yes you can, which poses a great problem for many people who heavily rely on their licenses. When clients come to me one of their biggest concerns is facing jail time, and that is a legitimate concern. But whether you are a mother, father, employee, or owner, if you do not have a driver’s license, it can prove extremely difficult to resume your normal lifestyle. Here is a list of driving restrictions you could face:

1. Super Drunk – 45-day hard suspension with a 1-year alcohol ignition interlock system.
2. Operating While Intoxicated (OWI) – 30-day hard suspension with 6-month restricted driving privileges.
3. Operating While Visibly Impaired (OWVI) – 90-day restricted driver’s license only allowing travel to and from your employer.

Should I Take The Breathalyzer Test?

When you are pulled over under suspicion of drunk driving, a police officer will have what is called a Handheld Portable PBT test that they will ask you to blow into. If you refuse to take the breathalyzer test, it is a civil infraction with an associated fine, but there are no restrictions on your driving privileges.

The more important situation to consider is if you are brought to the police station and asked to take the breathalyzer test there. A lot of barroom lawyers – meaning not real lawyers – talk of legends where they completely refused the breathalyzer test and were off Scot-Free, this is false, and I will tell you why.

In the United States, a driver’s license is a privilege, not a right; this is referred to as “Implied Consent”. If you refuse the breathalyzer test at the police station, that police officer will receive a search warrant by an on-call Judge, and I guarantee within 5 minutes of refusing you will be taken to the hospital to have your blood drawn. As a result of not taking the test, no matter what I do for you in criminal court, you are facing a 1-year suspension of your driving privileges period. However, you can fight this charge if you seek out what is known as a “Hardship Appeal”.

What is a Hardship Appeal?

To receive a Hardship Appeal, you must go to a Circuit Court, separate from any criminal court. There are many things you need to do during this process:

1. Receive a Substance Abuse Evaluation
2. Your Lawyer Must Request a Hardship Appeal
3. Take Case to a Circuit Court

When taking your case to the Circuit Court, you will go before the judge to explain your mistake of refusing to take the breathalyzer test. The Court will review your substance abuse evaluation, and if they believe you have a serious problem with alcohol you will not receive your license back. This situation is a prime example of why you need an experienced attorney guiding you through the difficult process of a Hardship Appeal, so you can remain licensed during the pendency of your criminal matter and probation.

If you are facing criminal charges, call Fausone & Grysko, PLC today at (248) 380-0000, and find out how our defense attorneys can help you.