Written by attorney Paul David Reynolds

DWI and DUI in Arkansas - The Frequently Asked Questions

Do the police have quotas for DWI arrests? They love to tell you that they do not, but they do. All police agencies are partially funded by federal, state, and private grants. Almost all have grants for DWI intervention (arrest). Basically they work like this: An officer(s) position(s) is funded by a grant to increase DWI arrest. The grant application will claim that by funding the position(s) the agency can increase DWI arrests by some specific amount over a multiple year period. The grant is approved by the feds, state, or private group for one year with proof of performance for the remaining years. So if the officer(s) and the police agency as a whole does not have the number of DWI arrests required by the grant the grant funding is cut and the officer loses his job. So do you think the police have DWI quotas? Interestingly, the grants are only based upon arrests and not conviction, so the police are encouraged to make arrests in even marginal cases just to meet quotas.

If I hire an attorney, can I get the DWI charges dismissed? NO! By statute in Arkansas, a DWI arrest must be disposed of by either a plea of guilty or an acquittal (not guilty) at trial. This is the only charge in Arkansas that a prosecutor cannot dismiss before trial. So you could murder or rape someone and the prosecutor could determine that the evidence is insufficient and dismiss the case, but for a DWI you either are going to take a plea offer or take your chances at trial.

Will I lose my license if I get charged with a DWI? YES! The police will seize your license upon arrest, give you a temporary license consisting of a pink piece of paper which is good for thirty days, and also give you another piece of paper to contest the automatic suspension of your license which must be submitted to the Arkansas Department of Finance and Administration Division of Driver Control within seven days of your arrest. See the page for DWI and DUI Penalties page for the length of time your license will be suspended and availability of a restricted driving permit. You will also have to take “alcohol awareness classes" at your own expense and pay a $150.00 reinstatement fee before you will be able to get your license reinstated.

What happens if I get stopped for driving while my license is suspended? If you are driving without a valid restricted driving permit or outside of the restrictions on the permit, then you can expect to do ten days in jail on the first offense and a whole lot more for a second or third offense. Also, the period of your suspension will be increased.

A friend of mine had too much to drink and decided to sleep it off in the parking lot and still got charged with DWI: Why? Arkansas has what is known as Actual Control of a Vehicle (ACV). ACV means that if you have what appears to be the intent and ability to drive the vehicle then you are in control of it and therefore you are deemed to be driving the vehicle. Basically, if you put the keys in the ignition while you are intoxicated you can get a DWI, even if you are asleep in the back seat in a private parking lot or your own driveway.

Can you get a DWI for smoking marijuana or taking prescribed medications? YES! The definition of “intoxicated" includes any controlled substance including medications prescribed by your doctor. So if you cannot pass the SFSTs while taking medication and driving you will be charged with a DWI. It is not a defense that the medications were prescribed. So if you just had surgery on your back and could not pass the SFSTs sober or intoxicated, do not take any medications and get behind the wheel.

My son got a DWI and lost his license: Can I just buy him a moped to go back and forth to school and work? This is one of the big myths out there concerning DWI and regrettably the answer is a big - NO! Although you do not need a driver’s license to operate a motorcycle with a motor of less than 50 cc’s or a moped, you cannot operate any motor vehicle, even an electric motor powered bicycle if your driver’s license has been suspended. This applies to all driver’s license suspensions for any reason, not just for DWI/DUI.

What is the difference between a DWI and a DUI? What Arkansas calls a DWI is usually referred to as a DUI in other states. What Arkansas calls a DUI is usually referred to an underage DUI in other states.

What exactly is a DWI? A DWI is driving while intoxicated and a DUI is driving under the influence. A DWI is given to anyone who operates or is actual physical control of a motor vehicle while intoxicated or who’s blood alcohol concentration is eight-hundredths (.08) or above.

What exactly is a DUI? A DUI is given to any person under the age of 21 who operates or is actual physical control of a motor vehicle while under the influence of alcohol or who’s blood alcohol concentration is between two-hundredths (.02) but below eight-hundredths (.08). The important distinction is that anyone who is intoxicated or whose blood alcohol is above eight-hundredths (.08) will be charged with a DWI while only those under the age of 21 will be charged with a DUI even if not intoxicated but who are at the minimum under the influence.

What is the difference between intoxicated and under the influence? Intoxicated is defined by statute to mean “influenced or affected by the ingestion of alcohol, a controlled substance, any intoxicant, or any combination of alcohol, a controlled substance, or an intoxicant to such a degree that the driver’s reactions, motor skills, and judgment are substantially altered." Under the influence is defined by statute to mean "being controlled or affected by the ingestion of an alcoholic beverage or similar intoxicant, or any combination of an alcoholic beverage or similar intoxicant, to such a degree that the driver's reactions, motor skills, and judgment are altered or diminished, even to the slightest scale, and the underage driver, therefore, due to inexperience and lack of skill, constitutes a danger of physical injury or death to himself or herself and other motorists or pedestrians".

How long does a DWI stay on a person’s driving record? The law in Arkansas is currently five years, but you can expect it to be changed soon to eight or ten years. Several bills have been before the legislature in recent years trying to change what is commonly called the “look back period". The current trend nationally is to go to ten years. I expect that eventually a DWI will become a permanent part of your driving record.

What is the difference between a DWI-1 and a DWI-2? A DWI-1 is what a person is charged with the first time they receive a DWI or if it has been more than five-years since their last DWI offense. A DWI-2 is what a person will be charged with if they receive a second DWI charge within five years of a DWI-1. The charges continue to accumulate for each offense, and it is not uncommon to see people charged with a DWI-3, DWI-4, or even a DWI-5.

What are the penalties for a DWI or DUI? See\_and\_dui\_penalties.html.

Do you have to pay the fines and costs immediately on a DWI? Most courts will work out a payment plan for the fines and costs, but will put you in jail and suspend your license if you fail to timely pay.

Do you have to go to jail if you get charged with a DWI? All DWI convictions require a minimum of one day in jail, but the law does allow you to do community service in lieu of jail time on most DWI-1, DWI-2, or DWI-3 charges. Whether or not you can actually do community service instead of jail time will be up to the judge and prosecutor. If you really want to do community service instead of serving time in jail and you have been charged with a DWI you will almost certainly need to hire an attorney.

You can sometimes avoid any additional jail time if you have “credit for time served", which means that there was a minimum of eight hours between the time you were stopped by the police on your DWI charge and when you were released from jail. The Arkansas attorney general has issued an opinion that states that eight hours in jail satisfies the one day jail requirement for a DWI charge, so a smart bondsman will not bond you out of jail till you have served the eight hours. People often get bonded out after six or seven hours because they want to go home and then after they are found or have pled guilty they have to go back to jail and serve another eight hours when if they would have just been patient for another hour or so they would have never had to go back to jail.

If I am stopped for a DWI should I blow? Arkansas has what is known as Implied Consent, which is basically a statute that says if you operate a motor vehicle in Arkansas you agree to a blood alcohol test. So if you do not blow, you will be charged with a Violation Of Implied Consent. As an attorney I am prevented from ever advising someone to break the law, so I cannot advise you not to blow. As a practical matter though, it really will depend on how much you have had to drink (see the Blood Alcohol Calculator Chart\_alcohol.html) and how intoxicated or under the influence you are. If you only had two drinks over a couple of hours and it has been an hour since you had your last drink or you did reasonably well on the SFSTs then you probably should. If you do blow and have a BAC of over eight-hundredths and it is close, then spend the money for a blood test at the hospital.

If on the other hand, you have had four plus drinks in the last two hours and you blow, I am going to have a much harder time obtaining an acquittal (not guilty) for you than if you had not.

© 2009 and 2010 Paul D. Reynolds

Additional resources provided by the author DOT/National Highway Traffic Safety Administrations DWI Detection and Standardized Field Sobriety Testing – Student Manual Taylor and Oberman’s Drunk Driving Defense (the bible for DWI defense) Kwasonski’s Officer’s DUI Handbook

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