DUI Glossary - Part 1
A person charged with a DUI-DWI is typically unfamiliar with the terminology, the court procedures, abbreviations and acronyms for drunk driving and how a drunk driving or drugged driving arrest proceeds from handcuffs, to jail, to bonding out, to arraignment, through plea offers and plea negotiations, to pre-trial motion hearings and possible trial. The trial can either be held before a judge sitting without a jury or at a jury trial.
The terms and phrases relating to drinking and driving and the explanations of the impaired driving evidence collected by police for use at an administrative license suspension hearing or at the criminal trial can be confusing. The relationship between the criminal part of a DUI case, and the administrative license revocation or suspension aspect confuses most people facing a DUI prosecution.
This copyrighted glossary has been adapted from The DUI Book, one of a dozen books about DUI laws written by Atlanta DUI Lawyer William C. Head. By being able to find explanations of the legal jargon and court vernacular in one place, a citizen facing criminal charges can learn more about the criminal justice system and the terminology used by their DUI lawyer or by others within the court system. This DUI glossary may assist an accused drunken driver to comprehend the legal process of a DUI arrest better, plus be prepared to deal with the various stages or phases of the criminal court process.
ACCUSATION – The document that a prosecutor accusing a misdemeanor DUI uses to specify and identify each specific type of crime alleged to have been committed by the accused person. In some states, misdemeanor offenses are accused by an “information”, which is a synonym for accusation. An accusation in a DUI-DWI case typically has several “counts” (each count is written and considered as a separate offense, with separate items of proof required to support a conviction). The various counts set forth in the accusation identify in general terms, how, when and in what fashion each criminal or traffic offense was committed. In DUI-DWI practice, a person might be accused in alternative “counts” of an accusation with (1) DUI-alcohol (drunk driving), (2) DUI-per se (being above the state’s “over the limit” alcohol blood level), (3) DUI-drugs [impairment from a prescribed medication or from illegal (i.e., cocaine) drugs], AND (4) DUI-alcohol AND drugs, by being under the combined impairing effects of both alcohol and some type of other drug. The accusation usually has language describing the underlying traffic offense or offenses that created probable cause to pull over the accused DUI driver.
ACQUITTAL – A finding by a judge or jury that a person who went to trial for allegedly committing a crime is not guilty of that offense. Because a person typically faces multiple counts in an accusation or an information, acquittal on one count, but conviction on another count is not uncommon. In an impaired driving case, in which the accused took an implied consent test and was “above the limit”, she might have been acquitted of operating while impaired (OWI), but convicted of OWI per se (being over the legal limit) which is the type of drunk driving offense that requires no proof of impairment.
ACUTE INTOXICATION – A term used by medical personnel in hospitals and emergency care facilities to refer to a patient’s intoxication that is “of clinical significance” (translated: potentially fatal). The most common source of such a condition is ethanol (alcohol as found in beer, wine, liquor or similar alcoholic beverages). Complications from acute intoxication may include trauma, aspiration (vomit getting into your lungs), delirium, coma, and convulsions, depending on the substance and method of the drug being introduced or administered to the person. See Mr. Head’s blood alcohol BAC calculatorestimation tool for number of drinks required for you to have a fatal BAC level.
ADJOURNMENT – Postponing or rescheduling a case or court session until another date and time. In some jurisdictions, this is called a “continuance.” Each state’s laws control when and under what circumstances an adjournment or continuance is available to either party, for good cause shown to the Judge, who either grants or denies a change of date.
ADJUDICATION – Generally, this term refers to a final judicial determination (by a court) of a decision in a pending legal matter. In juvenile court cases, an adjudication of delinquency is the equivalent of a ‘conviction.’ In typical criminal cases, “adjudication” refers to the court entering its final ruling of guilty or not guilty after a bench trial. By contrast, a ruling on pre-trial motions by a judge before trial is not a final adjudication, but is merely a decision on what evidence is admissible at a later trial.
ADMINISTRATIVE LICENSE SUSPENSION OR REVOCATION – In the context of drunken driving arrests, “Administrative License Suspension” laws or “Administrative License Revocation” laws exist in all but two states. This type of civil punishment for DWI-DUI drivers was recommended by an agency of the federal government, NHTSA, as a means of administratively suspending or revoking a DUI-DWI suspect’s driving privileges before the criminal charges were ever resolved. In fact, most states (e.g., California, North Carolina) passed their state ALS or ALR laws to ignore what is happening in the driving while impaired criminal case. The concept for ALS-ALR laws was that any person who submitted to implied consent testing and yielded a numeric test result equal to or greater than the state’s legal limit for that driver (e.g., the adult DUI-DWI in all states is 0.08 grams percent) would be summarily suspended from driving, or have his or her driver’s license revoked or restricted for a mandatory period of time. This new type of ALS or ALS license suspension for driving and “being over the limit” was added to the existing implied consent suspension or implied consent revocation that was imposed when an arrested drunken driver refused to be tested, as mandated by the state’s implied consent law.
AFFIDAVIT – A written statement of fact that is verified by oath or affirmation before a notary public or another judicial officer sanctioned by law to attest to a person’s signature. If state statute allows the use of an affidavit for a particular purpose (e.g., a custodian of records certifying the attached papers are the complete medical records of the defendant) offered to the court to verify some fact or to confirm that some act has been accomplished which does not require a court appearance. A common example in a DUI case might be sworn certification of periodic maintenance records for a breathalyzer device having been checked for calibration by a state technician.
AFFIRMATIVE DEFENSE – Without denying the charge, the defendant raises special extenuating or mitigating circumstances such as insanity, necessity, or coercion to avoid civil or criminal responsibility. In a drugged driving case involving “sleep driving” from taking Ambien before going to sleep, the affirmative defense is “unintentional DRIVING” caused by an unexpected reaction to the prescribed medication. This is sometimes referred to as “the Ambien defense” due to most sleep driving cases being cases involving Ambien or one of its generic alternatives. Another way of thinking of an affirmative defense would be as a valid excuse as to why the crime was committed inadvertently or why the defendant should not be held to blame for the crime, such as lacking the intention to be driving at all. The defendant usually must prove (or set forth some evidence of) any affirmative defense he/she raises. Court rules or state statutes typically require a defendant to notify the opponent before the trial that an affirmative defense will be asserted, and different state evidence laws control whether the Prosecutor or the defense has to carry the burden of proof.
ALCOHOL – A term derived from Arabic. Alcohol is a category of chemicals that have similar molecular composition, whether suited for human consumption or not. The term “alcohol” is often used by lay persons to refer to alcoholic beverages made with ethyl alcohol or ethanol, which is “drinking alcohol.” The usual type of alcohol found in mixed drinks, wine and beer is ethanol. The most common impairing substance in DUI arrests is alcohol in a DUI alcohol case. However, the chemical “alcohol” can be part of many products that contain some form of alcohol, often in an altered or different form than ethanol, for example, consumer products such as sugarless chewing gum, breath sprays, medicines, mouthwashes, cologne or deodorant. Wood alcohol is a solvent used for many purposes, but is lethal to humans. Most alcohols, in large enough quantities, including ethanol, can be lethal.
ALFORD PLEA – The so-called Alford plea is a form of “guilty” plea in which the defendant does not admit the act, but admits that sufficient evidence exists with which the prosecution could likely convince a judge or jury to find the defendant guilty. Alford pleas are more commonly used in felony criminal cases, as opposed to DUI misdemeanor cases. Your criminal defense lawyer can advise of the benefits or lack of benefits to you in your criminal prosecution, for an Alford plea. Upon receiving an Alford plea from a defendant, the court may immediately pronounce the defendant guilty and impose sentence as if the defendant had otherwise been convicted of the crime. However, in many states, such as Massachusetts, a plea that “admits sufficient facts” more typically results in the case being “continued without a finding” (see description below) and later dismissed. It is the appeal of the ultimate dismissal of charges that engenders most pleas of this type. This plea originated in the United States Supreme Court case of North Carolina v. Alford, 400 U.S. 25 (1970). After the Alford decision, the plea “Alford” plea generally has the same effect as a plea of guilty with respect to sentencing. Later use of the conviction based on an Alford plea as an aggravating factor (if the defendant is later convicted of another offense) is allowed in all courts.
ALIBI – A “lack of presence” defense. The Defendant need not prove that he was elsewhere when the crime happened; rather, a Prosecutor must dis prove a claimed alibi (i.e., Prosecutor must prove beyond a reasonable doubt that the defendant was present). Although rare in DUI-DWI cases, some drivers may not be present — after an accident — when the police arrive at the scene. In most, if not all, states, the Defendant’s criminal defense attorney must notify the prosecution prior to trial if they are going to claim an alibi defense.
APPEAL – A request to take a case to a higher court for review of proceedings in a lower court. As a general rule, no new evidence may be introduced during the appellate process. Although most appeals are conducted at the end of a trial, limited other appeals called interlocutory appeals or discretionary appeals may be appropriate in certain criminal cases. Prosecutors wishing to appeal certain important pre-trial rulings by a judge excluding key items of evidence in a criminal case have the statutory right to stop the proceedings (by appealing) and asking for review of the adverse ruling from an appellate court, because adverse rulings (such as exclusion of a high BAC level blood alcohol test) could end or substantially hinder their criminal prosecution. Since the Government (the prosecutor) cannot appeal an acquittal, this type of appeal law is important and makes common sense. On the other hand, an accused defendant who loses a pre-trial motion hearing must typically wait to see if the jury (or a judge, if a bench trial) acquits him or her of the DUI charges before appealing. For criminal convictions, and appeal is a matter of right, but for interlocutory appeals, these cannot go forward unless the trial judge first certifies the disputed ruling is of such gravity and importance as to either end the case, or establish new legal precedence.
APPEARANCE – Although usually associated with an attorney’s “entry of appearance” (see below), this word can signify a client’s obligation to show up for court at the time, date and place indicated in a summons or other court notification of a scheduled hearing, calendar call or trial date.
APPELLANT – The party appealing an adverse decision or judgment to a higher court.
APPELLATE COURT – A court having jurisdiction to review the actions of a trial court, for a review of the record created at a lower level. No witnesses testify at an appellate level, generally. Trial level courts are where testimony is taken. Trial level courts are where witnesses will be sworn in to testify under oath and the presiding trial judge makes rulings on the admission of documents, exhibits or testimony at the trial. The judge also is responsible for managing the jurors and giving legal instructions on the law that the jury is legally obligated to apply in the trial.
APPELLATE JURISDICTION – The power and authority of a court (established by state law) to review a case that has already been tried by a lower court or acting upon a special, interlocutory appeal or discretionary appeal. (See definition of “appeal” above.)
APPELLEE – The party responding to an appeal filed by the opposite party in a higher court.
ARRAIGNMENT – Typically, the first court appearance after an individual’s arrest and release from jail on an appearance bond. The arraignment process is where the pending criminal charges are formally read aloud to the accused citizen, and the accused person enters his or her plea of guilty or not guilty. In most DUI cases, the DUI attorney representing the accused drunken driver will “waive” (give up) the defendant’s right to hear the charges being read aloud, to save a wasted court appearance. A person who appears in court without a lawyer and stands mute will be considered (by his or her silence) to be pleading not guilty, and the judge will order the clerk of court to show the plea as a “not guilty” on the court docket records.
ATTORNEY – A lawyer; one who is licensed to act as a representative for another in a legal matter or proceeding; one who is licensed to practice law. Most attorneys are licensed in and only practice in one state, with some exceptions for attorneys whose office location is near the border of another state or states.
ATTORNEY-CLIENT PRIVILEGE – In all legal matters, the client (whether or not a party to litigation) has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer. The attorney-client privilege authorizes a client to refuse to disclose, and to prevent others from disclosing, information communicated in confidence to the attorney and any legal advice received in return. The objective of this well-recognized privilege is to enhance the value which society places upon legal representation by assuring the client the opportunity for full disclosure to the attorney, unfettered by fear that others will be informed of confidential matters. While the privilege belongs only to the client, the attorney is professionally obligated to claim it on his or her client’s behalf whenever the opportunity arises, unless he has been instructed otherwise by the client. In OUI-DUI cases, the DUI lawyer may be private counsel or a state-appointed attorney who is paid by the state, but whose loyalty and confidentiality obligation goes to the indigent, accused defendant.
BAIL – In criminal proceedings, to set free a person arrested or imprisoned (pending the outcome at trial or the case’s possible resolution of an appeal, after trial) in exchange for another person posting security such as cash, a credit card payment or pledging real estate, so that the jailed person’s later appearance is secured by the equity in real estate that the principal pledges. Bail is forfeited by the trial judge if the person fails to appear in court as directed.
BOND – In criminal law, a surety bondsman or bondswoman puts up money or property that assures the appearance of the defendant or (if the defendant fails to appear) the payment of the defendant’s bail amount. Commercial bonding companies are the most common sources of principals for appearance bonds, and collect a bondsman’s fee that is capped by state law. The person who agrees to be the “surety” is financially obligated to the Government to pay the bond if the person released from jail fails to appear. The failure to appear will typically cause the judge of the court requiring attendance to issue a “bond forfeiture” order, as well as a warrant for the defendant’s arrest for FTA (failure to appear). In DUI cases, another common provision of most states’ OWI-OUI laws relates to the non-appearing, accused citizen’s driver license. The judge has the legal authority to order suspension or revocation of the missing defendant’s driving privileges.
BLOOD ALCOHOL CONTENT – BLOOD ALCOHOL CONCENTRATION – The amount of alcohol in a person’s bloodstream from a forensic test via blood collection, urine sample or breathalyzer. The numeric results obtained by a BAC level test for a drunken driving prosecution can be used to prosecute a DUI-DWI case or to be evidence in a civil case, following an accident that causes injury or property loss. The adult (age 21 and over) legal limit in drunken driving cases is .08% in all states. For someone under 21, the legal limit is 0.00%, 0.01% or 0.02%, depending on the state the offense is committed in. For persons of any age driving a commercial vehicle, the legal limit is 0.04%.
BLOOD TEST – A forensic test of blood to measure a person’s BAC level by drawing (collecting) the blood via needle, usually done in a hospital. DUI blood tests are often requested where substances other than alcohol are suspected to be impairing a motor vehicle driver in a DWI-DUI case, or where an accident with injuries may require that the person suspected of drunk driving is already going to be transported to a hospital. In some states, refusal of a DUI blood test is possible for a person who is capable of refusing. Forcible (involuntary) blood collection may be sanctioned in felony cases involving a DUI-related homicide by vehicle or serious injury by vehicle cases, but the prudent course for a law enforcement officer to take is to swear out an affidavit of need for the blood, as evidence, and have a judge issue a search warrant for the blood, to be used in a criminal prosecution. This is based upon the landmark United States Supreme Court ruling of Missouri v. McNeely, from 2013.
BREATH TEST – A type of DUI-alcohol test used to capture a sample of deep lung air and measure the breath alcohol content within the breath. Breath testing is usually done at a police station or at a jail, but can be done in a mobile van designed and wired for BAC testing. A detained DWI-OWI suspect does not have to agree to blow into a breathalyzer machine, but can face lengthy loss of driving privileges for refusal. DUI attorneys in some states advise that a person who is asked to provide a forensic breath sample should refuse to cooperate. In other states, where a full year license suspension or revocation would result, taking the DUI breath test and then demanding an independent blood test is the better course of action. Some police jurisdictions also use roadside breath tests to make DUI arrests, but these numeric results (generally) are not admissible as evidence in court. A few states, however, have purchased evidential breath testing devices, like the Alco-Sensor RBT IV with printer, and (if state law allows it) these portable devices can yield a legally admissible breath alcohol result.
BRIEF – A written document presented by a criminal lawyer to the judge presiding over a criminal case. The prosecution also can submit a brief. Each attorney sets forth both a short summary of the facts of the case and cites the relevant law that supports the lawyer’s case.
BURDEN OF PROOF – This refers to the evidentiary obligation of a party to legal proceedings having to “carry” the burden to prove his or her allegations during a trial. Different levels of proof are required depending on the type of case. This phrase is employed to signify the duty of proving the facts in dispute on an issue raised between the parties in a cause. In criminal cases, as every person is presumed to be innocent until the contrary is proved, the burden of proof rests on the prosecutor to prove each and every element of the charges. After the prosecutor has presented such evidence, the defendant may need to rebut (challenge) the prosecutor’s evidence, as a practical matter, even though the burden of proof in criminal cases never shifts to the defendant.
CHARGES – A formal accusation, indictment, or other criminal complaint form used to inform an accused person of the existence of a criminal offense against him or her. These are also sometimes merely called “criminal charges” or DUI charges, in driving under the influence cases. Most states initiate drunk driving charges through an officer’s traffic tickets or “citations”. Prosecutors can then amend, replace or delete certain original charges by creating an information or an accusation or an indictment (for felonies, in some states).
CIRCUMSTANTIAL EVIDENCE – A type of indirect evidence that implies that certain facts occurred but does not directly prove it. For example, circumstantial evidence that it rained recently can be obtained by a witness testifying that he went into his house at 6:00 p.m. and it was not raining. Later, at 7:30 p.m., he comes outside and the ground, roadways and trees are wet. He did not SEE it rain, but circumstantial evidence says it did. In a DUI trial, typical jury instructions tell a jury that they can chose to accept or reject direct evidence and testimony, or accept it, and the same applies to circumstantial evidence. The jury weighs the evidence – direct or circumstantial.
CITATION – Similar to a unique web site address [URL], this is a legal shorthand method of “citing” or referring to a particular criminal or civil appellate case that has been decided by a court and is part of the official “reporters” (bound volumes of important cases). Each reported (and some unreported) decisions by appellate (and even trial level decisions in some states) is given a unique set of alphanumeric identifiers that help attorneys refer to the case so others can look it up and review the rulings made by that court. On the Web, you may see such cases used as references for legal points that are made either in the text itself or in the footnotes. By copying the case names (State v. Jones) and the numbers and words following (233 N.C. App. 456) as a whole, and then entering this information into either a legal search engine query or into a Google search, you may be able to find the text of the entire case. Well over 100,000 DUI appeals and other trial level cases have been reported.
CODE – A collection of written laws arranged into chapters, a table of contents, and an index, and published by legislative authority in each state or commonwealth. For example, the Iowa Code is a collection of laws approved by the Iowa legislature. Abbreviations for statutory provisions in this book may be a byproduct of the “code” citation. Example: Official Code of Georgia Annotated is abbreviated O.C.G.A. The Georgia DUI law is often given a shortcut citation as OCGA 40-6-391.
COMMON LAW – Law based upon previous decisions of English “common law” courts or referring to the body of laws passed down from England to America when our statutes were created in the United States. Many of the states have language in their Code stating that where no specific state law has been enacted, that “common law” guidelines control how that legal issue should be decided.
CONCURRENT SENTENCE – Upon conviction for multiple crimes arising from a criminal sentence, a person being sentenced can be ordered by the judge to serve any custody and/or probation periods at the same time as another criminal sentence, rather than one after the other.
CONSECUTIVE SENTENCE – Upon conviction for multiple crimes, criminal sentences that must be served one after the other, rather than at the same time, are called “consecutive” sentences. Consecutive sentences may only be imposed if there is specific statutory authority to do so. Many states leave that decision to the sentencing judge. In some circumstances, consecutive sentences may be imposed within the judge’s discretion (e.g., when a person is convicted of a new offense committed while on probation or on parole status). In other circumstances, consecutive sentences are mandatory under state law.
CONTEMPT OF COURT – This phrase refers to any act or conduct that shows disrespect for the court’s authority that is done within the court’s boundaries. While these boundaries are usually the courtroom, anything within the court building may be subject to contempt power. Contempt of court usually means a person has failed to obey a court order or directive. Contempt can be punished by a fine or imprisonment or both. Generally, contempt that can result in jail time must occur within the courtroom or in the presence of the judge. Other forms of contempt are typically punished by fines. Anyone, including a DUI attorney representing a person, can be held in contempt.
CONTINUANCE – This term refers to postponing or rescheduling a case or court session until another date or time. In some jurisdictions, this is called an “adjournment.” Each state’s laws control when and under what circumstances an adjournment or continuance is available to either party, and typical rules include being able to prove several criteria exist that justify the Court resetting the case to a future date. See adjournment , above.
CONVICTION – Finding by a judge (who is deciding guilt or innocence without a jury) or a unanimous decision by a jury that a person is guilty beyond a reasonable doubt of committing one or more of the crimes charged.
COPPING A PLEA – See “Plea Bargain” below.
COURT-APPOINTED ATTORNEY – Refers to legal counsel assigned by the court to represent an indigent criminal defendant. The term “public defender” may be used for court-appointed lawyer. A court-appointed attorney is not necessarily a “free” attorney. In most states, an application fee for investigating a person’s indigent status can be required, and the court can order that some, or all, of the attorney’s time utilized on behalf of the client be reimbursed if the person is found guilty. If there is no chance jail time will be imposed on a defendant on a traffic or a misdemeanor offense not carrying jail time or the chance of DUI probation, the judge need not appoint an attorney.
CROSS EXAMINATION – The process of challenging the evidence presented by a witness who is testifying for the opposing side in a trial. The lawyer cross-examining the witness may utilize a series of questions, plus documents and other exhibits (such as a DUI videotape) to cast doubt on the testimony of the witness. Questions on cross-examination (as opposed to direct examination) can be “leading” (questions that suggest the answer to the witness). Leading questions are not permitted to be asked by the party who offers the witness for providing evidence on their behalf.