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Frequently Asked Questions About DUI Law in Arkansas

Can I be stopped and arrested for DUI in Arkansas even if the vehicle was not moving?

Some states require that the person actually be driving a moving vehicle to be arrested for a DUI charge, while other states allow the conviction simply for being behind the wheel or having the keys in the ignition.  In Arkansas, a person can be found guilty of driving under the influence even if the vehicle is not moving when they are confronted by a police officer.  For example, in one Arkansas case in 2007, the defendant was found passed out in his vehicle against the steering wheel after placing an order at a fast food drive through.  The man was arrested after for clearly being intoxicated and the results were later confirmed by a blood test.  The court in that case convicted the defendant of driving under the influence of alcohol despite the vehicle not being in motion when he was apprehended, saying that at any time he could have woken up and continued to drive the vehicle.  Thus the prosecution was successful in establishing that the defendant was in physical control of the vehicle despite the keys not even being in the ignition.  All the prosecution had to show was that the defendant could potentially have operated the vehicle and caused it to move while in a state of inebriation.  Thus, in Arkansas a person can be convicted of driving under the influence even if they are not technically driving the vehicle (the vehicle is not in motion) at the time of the arrest.

Do I have the right to talk to an attorney before I give a sample?

Some states give defendants the right to speak with an attorney before submitting to a chemical test such as by blood or urine.  In other states, no such privilege exists and the defendant has not right to speak with his attorney until after submitting to such a test.  Regardless of when the state you are in allows you to speak with an attorney, it is a good idea to secure counsel for the purposes of your defense.  In all states including Arkansas, a defendant has a constitutional right to defense counsel (in other words, the advice of a lawyer) both before as well as during any police interrogation.  However, in Arkansas a driver is not afforded the opportunity to speak with an attorney before submitting to a chemical test.  The Arkansas courts have ruled that chemical samples are not “testimonial in nature” and thus do not require the representation of a lawyer to be implemented.

Do I have the right to give a blood or urine sample?

If a driver refuses to submit to a chemical test by a police officer, he will be guilty of Arkansas’s implied consent law and will be arrested for driving under the influence.  However, any driver in Arkansas who is requested to take a chemical test can by law submit his or her own test as evidence.  A doctor, nurse, or other medical professional must administer this test to ensure its accuracy.  Thus drivers have the right to challenge the chemical tests they are forced to take by police by taking independent tests.  In addition, the defendant and his attorney have the right to access the results of any chemical test done by the police upon arrest.

Do I have to submit a field sobriety test?

Field sobriety tests allow police to determine potential inebriation before forcing drivers to submit to chemical testing of their blood or urine.  Arkansas law does not require submitting to a field sobriety test, so the driver can deny an officer’s request when prompted to take such a test.  However, such refusal will result in the officer asking the driver to take a chemical test (a breathalyzer, for example).  This request is not optional, as declining a chemical test means the driver is automatically in violation of the state implied consent law and thus guilty of DUI.  Thus while drivers in Arkansas can deny requests by police to submit to a field sobriety test, failure to comply with a chemical test can result in the same penalties as having a BAC above the legal limit.

Can a DUI charge result in vehicle confiscation in Arkansas?

Some states allow police to confiscate the driver’s vehicle upon arrest or charge for driving under the influence either permanently or for a set period of time.  This is a harsh penalty typically reserved for repeat DUI offenders, with the notion being that those most likely to commit DUI offenses (i.e., repeat offenders) will be deterred from doing so if their vehicles are confiscated.  Many states defend this concept with a public policy rationale, in other words, it is in the public’s best interest to keep such reckless drivers off the road, and confiscating their vehicles is a huge deterrent to this crime.  Arkansas law currently allows the police to confiscate a driver’s vehicle in this manner under certain circumstances.  The driver’s vehicle may only be seized upon conviction of a fourth charge for driving under the influence.  In addition, this charge must come within three years of the first DUI charge.  If these special conditions are met, then the police in Arkansas may legally confiscate the driver’s vehicle.

Can a DUI charge result in mandatory alcohol education or treatment programs?

Some states force DUI offenders to attend alcohol education or treatment programs as part of the penalty for driving under the influence of alcohol.  These programs typically involve educating the individual as well as assessing his dependency on alcohol or other drugs.  These programs are sometimes used as part of a suspension or probation program.  Thus in states that have such treatment programs, a DUI convict can avoid a potential jail sentence as well as fines by completing the program.  The state of Arkansas currently has mandatory alcohol education, assessment, and treatment in place.  Any person convicted of even a single driving under the influence charge must attend such a program, and the individual will not recover driving privileges until successful completion of the program.  Some DUI offenders must complete an assessment of alcohol abuse problems and will be required to go to additional treatment programs, depending on the severity of the conviction (taking into account the driver’s BAC at the time of arrest) as well as any previous offenses committed by the driver.

Boating under the influence (“BUI”) Laws

All 50 states have laws against boating under the influence of drugs and alcohol.  In Arkansas, the legal BAC limit for driving a boat is 0.08, the same level as for driving an automobile.  The BAC limit for underage drivers is 0.02, also the same level as driving a car.  A first conviction in Arkansas for boating under the influence may result in fines of up to $1,000 in addition to jail time of up to one year.  These penalties are in addition to losing boating operation privileges for three months.  In fact, more severe penalties exist for subsequent convictions of the same manner or if a person is injured as a result of the driver’s behavior or actions.  In addition to these penalties, convicts must also complete an approved alcohol education and treatment program before the boating license will be reinstated.

Open Container Laws in Arkansas

In general, open container laws prohibit possession of open alcoholic beverage containers in a vehicle, and prohibit drinking in a vehicle potentially even by passengers not operating the car.  Most states have an outright ban on any open alcohol containers in vehicles.  Arkansas is not one of these states, however.  Drivers in Arkansas are still prohibited from driving under the influence or drinking while operating a vehicle.  However, along with 10 other states, Arkansas allows the passengers in the vehicle to have open alcohol containers and drink in the vehicle.

In addition, it is important to note that open container laws can be local and thus diverse within a state.  This means that certain cities or municipalities within a state may treat open container laws differently than the blanket state policy.  For example, Arkansas allows its local jurisdictions to decide if they want to be “dry”, meaning not even passengers are allowed to consume alcohol within the vehicle.


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