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Not only is it illegal to drive under the influence of alcohol, but it is also illegal to have actual physical control of your motor vehicle while under the influence of alcohol. While our lawmakers have never specified what counts as “actual physical control,” it might include having keys in ignition; being passed out in your vehicle, or sitting awake in a parked car in a parking lot with the heater on – while under the influence. This “vagueness” in the law can sometimes be used to our advantage and may create opportunities for arguments in front of the jury.
Physical control cases also allow us to explore the defense of being “safely off the roadway.” This might be the case where the driver moved her vehicle safely off the road way, but prior to being discovered in physical control of it. Our office has obtained substantial reductions in both convictions and sentences using this defense to our advantage.
Physical Control is considered a companion charge to DUI, in that it is also a gross misdemeanor punishable up to 364 days in jail and a $5000 fine, with a minimum (on a first offense) of 1 day in jail and just under $1000 fine. The penalties for Physical Control are identical to that of DUI; a sentence for Physical Control also carries at least 90 day license suspension (for which the driver may be eligible for a restricted license), and a 1 year Ignition Interlock requirement.
Reckless Driving is when a person “drives any vehicle in willful or wanton disregard for the safety of persons or property…” Reckless Driving can be filed as an original charge, but often is a reduction down from an original DUI charge.
Like DUI, Reckless Driving is a gross misdemeanor punishable up to 364 days in jail and a $5000 fine; unlike DUI there are no mandatory minimum jail or fine but there is a minimum 30 day license suspension that results, for which the driver may be eligible for a restricted license, depending on the nature of the Reckless charge (alcohol/marijuana related or non-alcohol/MJ related).
A conviction for Reckless Driving, where that charge was reduced from a DUI charge, will serve as a “prior offense” should the person get charged with DUI again within 7 years.
Negligent Driving in the First degree, commonly known as “Neg 1,” is when a person “operates a motor vehicle in a manner that is both negligent and endangers, or is likely to endanger, any person or property, and exhibits the effects of having consumed liquor or marijuana or any drug …” It is rarely filed as an original charge in a complaint; more often, a Neg 1 is a reduction down from an original charge of DUI. When it is originally charged, it is usually a DUI arrest involving a breath test result lower than the .08 legal limit.
Negligent Driving 1 is a simple misdemeanor punishable up to 90 days in jail and a $1000 fine, but typically there is no jail time and a lower fine on conviction. There is no license suspension that results from a Neg 1 conviction.
Similar to Reckless Driving, a conviction for Negligent Driving 1, where that charge was reduced from a DUI charge, will serve as a “prior offense” should the person get charged with DUI again within 7 years.
A person is guilty of reckless endangerment when that person “recklessly engages in conduct, not amounting to drive-by shooting, but that creates a substantial risk of death or serious physical injury to another person.” In DUI circles, Reckless Endangerment might be charged as an additional charge, especially where children or other passengers were in the vehicle, especially where the driving was egregious, or there was a collision.
The penalties for Reckless Endangerment are similar to that of Reckless Driving. In certain cases, a DUI charge might be reduced to Reckless Endangerment to avoid the 30 day suspension (unlike Reckless Driving, there is no suspension with Reckless Endangerment), however a conviction for Reckless Endangerment could have a more damaging impact on one’s life or career, such as nursing and other health-industry related fields.
As with Reckless Driving and Negligent Driving 1, a conviction for Reckless Endangerment, where that charge was reduced from a DUI charge, will serve as a “prior offense” should the person get charged with DUI again within 7 years.
A person may be found guilty of “driving or being in physical control of a motor vehicle after consuming alcohol or marijuana” if the person is under 21, operates or is in physical control of a motor vehicle within this state and “has, within two hours after operating or being in physical control, an alcohol concentration of at least 0.02, as shown by analysis of the person’s breath or blood.” In other words, a conviction for this offense requires that a blood or breath test was conducted. Similar to Negligent Driving 1, Minor Operating Vehicle after Consuming Alcohol or Marijuana (“MOVCA/M”) is a simple misdemeanor punishable up to 90 days in jail and a $1000 fine, but typically with no jail time and a lesser fine. Unlike Neg 1, however, there is a 90 day administrative license suspension for which the driver may be eligible for a restricted license. Also, a conviction for MOVCA/M does not serve as a prior offense for future DUI charges.
A person can be convicted of BUI when their blood alcohol level is .08 or greater, or their THC concentration is 5 nG or greater, within two hours of operating a water vessel. A person can also be convicted of BUI with levels lower than the legal limits, but where it is proven they were under the influence while operating the vessel nonetheless.
Like DUI, BUI is a gross misdemeanor, which means it’s punishable up to 364 days in jail and a $5000 fine. It also will serve as a “prior offense” if the person gets arrested or DUI again within 7 years. Unlike DUI, however, BUI does not result in a license suspension, and a Refusal is not admissible in court (though it does result in a “Class 1 civil infraction”).
Sam was charged with DUI and Reckless Driving, and faced up to two years in jail and a license suspension. After pointing out several evidentiary flaws in both officers’ investigations Dan convinced the prosecutor to reduce the DUI to Negligent Driving. The Reckless Driving charge was dismissed in exchange for a traffic ticket. Sam avoided jail time, heavy fines and license suspension.
“I hired Mr. Gerl regarding my DUI case. Confused, and worried about my possible outcomes for this matter I was quickly put at ease as Mr. Gerl educated me on the laws and possible positive outcomes for my case. His intelligence and persistent demeanor allowed for him to negotiate a favorable outcome for my case, which resulted in negotiating DUI down to a Negligent Driving 1 with no jail, no license suspension and significantly reduced fines. With extreme satisfaction in his services I have recently referred my family and friends to Mr. Gerl, and would recommend him to anyone.”