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• What to Bring to a Consultation
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• Driving with a Suspended License
• Drivers License Revocation

Frequently Asked Questions

Q.  What is the difference between a DWI and a DUI?

A.  The short answer is "the person's age."  A person who is 21 years of age or older technically cannot be charged or convicted of a DUI, only a DWI.  However, a person who is under 21 can be charged with either a DUI or a DWI.  Typically, if a person under 21 is alleged to have had a BAC result of .08 or higher, then the officer will charge him or her with a DWI.  The penalties for a DWI are generally much more severe than those of a DUI.  

Q.  Is there a different level of proof required between a DWI and a DUI?

A.  Yes.  DWI means "Driving While Intoxicated."  DUI means "Driving Under the Influence."  "Intoxication" is defined by Arkansas state law as substantial impairment of the driver's reactions, motor skills, AND judgment.  Ark. Code Ann. 5-65-102(2).  "Under the Influence" is defined by Arkansas law as an impairment, even to the slightest scale, of the driver's reactions, motor skills, AND judgment.  Ark. Code Ann. 5-65-302(2).

Moreover, a DWI (based, at least in part, on a BAC result) requires a BAC level of .08 or more.  Whereas, a DUI only requires a BAC level of .02 or more.

Q.  Can I expunge (or seal) the record of my Arkansas DWI or DUI conviction?

A.  Yes, it is possible.  The answer for many years was a definite "no" for any misdemeanor DWI or DUI (felony DWI's (4th offense or higher) were already eligible for expungement).   However, that changed in the 2011 Arkansas Legislative Session.  Starting no later than August 1, 2011, you may petition the court of your conviction for an expungement of your Arkansas DWI (felony and misdemeanor) or DUI.  The judge may not deny your petition for expungement unless there is "clear and convincing evidence" that the expungement should not be allowed.  Keep in mind that you must wait until five (5) years from the completion of your sentence for your DWI or DUI before you can petition to expunge and seal your Arkansas DWI or DUI conviction.

Q.  What are the chances that the prosecutor will drop my Arkansas DWI or DUI charge?

A.  For a DWI, there is zero chance.  However, this not a reflection of our abilities as your lawyer.  It IS a reflection of the legislators that were elected to the Arkansas Legislature.  Many years ago, Arkansas legislators passed a law that specifically prohibits anyone (including the prosecutor and even the judge) from reducing a DWI to a lesser charge.  Ark. Code Ann. 5-65-107 .  However, multiple-offense DWI (i.e. DWI - 2nd Offense) can be reduced to a lesser DWI (i.e. DWI - 1st Offense).

For a DUI, the law does not prohibit reducing it to a lesser charge.  However, courts and prosecutors are usually very reluctant to reduce a DUI.

Q.  How long do DWIs and DUIs "count against" me in Arkansas?

A.  Although Arkansas DWIs and DUIs stay on your record forever, they can only be counted against you for 5 years after the date of the offense.  This is true regardless of whether your prior DUI or DWI was from Arkansas or some other state.

Example:   Assume that you were convicted of a DWI - 1st Offense that occurred on June 1, 2004.  If you are charged with another DWI that occurred on or before May 31, 2009, then the new DWI is a DWI - 2nd Offense, which has significantly more severe penalties.  This is true regardless of the fact that the date of conviction for your second DWI may be after 5 years from the date of the offense of your first DWI; the rule is "offense date to offense date."

Q.  What is meant by the term "breathalyzer?"

A.  "Breathalyzer" can refer to any instrument that measures a person's breath to determine its alcohol content and then converts that amount to a blood alcohol content ("BAC") measurement.  The term was originally used many decades ago to refer to Smith & Wesson's particular brand of breath testing device.  Susequently, like the terms Kleenex and Xerox, it has become synonymous with any breath testing device of this type.

Q.  Can I refuse to take a breathalyzer?

A.  Yes!  However, there are different consequences to refusing to take a breathalyzer, depending on the type of breathalyzer in question.  Although you have the "right" to refuse a test, it may constitute the separate crime of "Refusal."  A refusal to take a portable breath test ("PBT") does NOT constitute the crime of Refusal.  The results of a PBT test are not even admissible in court due to the technology's inherent unreliability. 

However, Arkansas (and every other state) has an "implied consent" law that states that if you drive, you have impliedly consented to take a breathalyzer (or another chemical test, such as blood or urine, which are requested MUCH less frequently by officers).  Ark. Code Ann. 5-65-202.  This refers to an evidentiary breathalyzer (in Arkansas, it is either a BAC DataMaster or Intoximeter EC/IR II).  Although an officer cannot physically force you to take a breathalyzer or other chemical test (except an incident involving death or likelihood of death under Ark. Code Ann. 5-65-208), you will be charged with a Refusal if you refuse to take such a test.

Q.  Can I refuse to take field sobriety tests?

A.  Yes!  Contrary to a refusal to take a breathalyzer (or other chemical test), a refusal to take field sobriety tests is NOT a crime.  However, the police officer will usually not volunteer the fact that you can refuse to take them.  Many people take the tests either because 1) they want to prove to the police officer that they are not intoxicated or 2) they do not want to anger the officer into charging them with a DWI/DUI.  However, in our experience, it is VERY rare for an officer to admit that a driver passed the tests.  Moreover, once an officer has requested that you take field sobriety tests, it is HIGHLY unlikely that you will not be arrested for a DWI/DUI (so the officer's feelings toward you is the least of your concerns). 

Q.  What is going to happen to my driver's license?

A.  This depends on what you have been charged with.  You must first look at the driver's license suspension penalties applicable to you.  Click here to see the penalties related to your charges.  You start serving out this sentence at the time of your arrest, before you've ever seen the inside of a courtroom.

These suspension periods relate only to your driving privileges in ARKANSAS.  If you are not a resident of Arkansas, then your driving privileges in your home state should not be suspended until you have received notification from your home state.

It is important to understand that, at the time of your arrest, your case is on 2 separate tracks:  1) Court and 2) the DMV or, as we call it in Arkansas,  "Driver Control"  (a division of the Department of Revenue).  For the most part, what happens to your driver's license has NOTHING to do with "Court."  Court controls jail time and fines; Driver Control controls your driver's license.

At the time of your arrest, the officer probably took your driver's license right there on the spot.  From that time, you have SEVEN (7) DAYS to make a written request to Driver Control for temporary relief so that you can drive for all, or at least some part, of your suspension period.  See the breakdown for driver's license penalties noted above to see whether you are even eligible for relief. 

If you are eligible for relief and you made a request for temporary relief within the seven (7) day period, then you will be scheduled to appear at your local Revenue office for a "hearing."  Although this is called a hearing, the "hearing officer" typically has no formal legal training.  At the hearing, it is usually just you and the hearing officer.  There is no judge, no prosecutor, and no cops.  Your defense lawyer CAN attend this hearing, and in rare cases, prevent your driver's license from being suspended. 

[Note:  If your license is suspended, you have the right to file a civil appeal that, like your initial hearing, is separate from your DWI or DUI court process.  However, that process is rather complicated and will not be discussed any further in this FAQ.]

Usually, the only time that Court affects your driver's license is when you win your DWI or DUI.  If you are still within your suspension period at the time of your win, then you get your license back without any further penalties or requirements.

However, if your case ends with a DWI or DUI on your record OR if you have served out your suspension period but your case has not yet gone to trial, then you must take an approved alcohol class and pay a reinstatement fee to the Department of Revenue to receive your license back.  And for first-offense DWIs, you must have had your interlock device installed in your car for at least 6 months.

Q.  How much could my Arkansas DWI or DUI cost me if I am convicted?  (Estimates based on an average DWI - 1st Offense)

A.  Fines - $1,000

     Court Costs - $300

     Ignition Interlock Installation Fee - $150

     Ignition Interlock Monthly Fee - $360 ($60 per month x 6 months)

     Alcohol Classes - $150

     License Reinstatement Fee - $150

     Vehicle Towing - $150

     Increased Car Insurance Premiums - $4,500 (over 3 years)

     TOTAL= $6,760...plus any Lost Work & Attorneys Fees (which vary, based upon the facts of the case)

Q.  How much is your fee?

A.  That is kind of like telling your doctor that you're having chest pains and then asking how much it will cost.  Everyone's case is different.  On average, it takes from 1 hour to 1 1/2 hours to discuss your case and determine the defenses that may be needed to properly defend your case.  We do not charge for a consultation; it is ABSOLUTELY FREE. 

After we have reviewed your case in depth, we will be able to quote you a fee.  We do not attempt to be the cheapest lawyers, but we do try to be the BEST.  We try to accomodate potential clients in any way that we can.  We also accept Visa, MasterCard, and American Express.