Ask the Lawyer: DWI—A little pleasure, a whole lot of pain

By Sharon J. Ackah, JD, MPH USMA Legal Assistance Attorney

December 2nd, 2015 | News, News and Features

Recently, I shared an elevator ride with a senior cadet who excitedly exclaimed, “The only thing standing between me and the Thanksgiving holiday is one paper.” Perhaps I should have wished him a happy Thanksgiving followed by a word of caution: “Celebrate safely. Don’t drink and drive, lest you find that what stands between you and your West Point graduation certificate is a DWI conviction.”

What is a DWI?

Driving While Intoxicated (DWI) is a serious criminal offense in just about every state. You may also hear the terms “Driving Under the Influence (DUI)” or “Aggravated Driving While Intoxicated (A-DWI).” All of these terms are used to describe the offense of driving while alcohol impaired. The primary difference lies in the concentration of alcohol found in your blood at the time a test is administered.

Generally, age is a factor in the determination of an acceptable Blood Alcohol Concentration (BAC) level. In most states, if you are over the age of 21, and are found to have a BAC of 0.08 percent or higher, you may be charged with a DWI. If you are under the age of 21, and your BAC is 0.02 percent, you may be charged with a DWI.

What are my reporting requirements?

A critical component of honorable military service is the maintenance of good order and discipline. Accordingly, reckless disregard for the law and the safety of fellow citizens will not be tolerated, and generally must be reported to a Soldier’s chain of command.

This reporting requirement is codified in Army Directive 2011-17, which states, “All United States Army commissioned officers, warrant officers and enlisted members above the pay grade of E-6 who are on active duty or in an active duty status in the reserve component shall report in writing via DA Form 4187 or memorandum, any conviction of such member for violation of a criminal law of the United States.”

What are the possible consequences?

In determining possible consequences in a DWI case, most states consider factors such as willingness to submit to testing and whether or not other drug use is involved. State level penalties include civil monetary penalties, suspension of driving privileges, enrollment in rehabilitative programs and possible jail time. In addition to State level penalties, Soldiers may be subject to punitive or administrative action under the Uniform Code of Military Justice (UCMJ).

For Enlisted Soldiers and Officers, action taken may include one or more of the following: 1.) Article 15, 2.) General Officer Memorandum Of Reprimand (GOMOR), 3.) Administrative Separation (Enlisted Soldiers), 4.) Officer Elimination and/or 5.) Court-martial. A Soldier’s Chain of Command makes the determination of what action will be taken in response to a DWI.

Cadets convicted of a DWI offense are subject to discipline under United States Corps of Cadets (USCC) regulation 351-2, Army Regulation 210-26, and/or other USCC policies. These actions include: 1.) Article 10 boards, 2.) Misconduct boards, 3.) Formal reprimand, 4.) Demerits, 5.) Extra duty tours, 6.) Withdrawal of privileges, 7.) Restriction, 8.) Reduction in rank and 9.) Separation.

The extent to which a DWI conviction will be considered for official action is a command decision. Areas that may be impacted range from assignments and professional development opportunities to separation/elimination from the United States Army.

Cadets may find themselves unable to be promoted through the ranks through graduation and/or unable to obtain a security clearance.

What can you do to avoid a DWI?

There is only one way to guarantee you do not get convicted for drunk driving—If you are drinking, don’t drive; if you are driving, don’t drink. Most people know that driving drunk can cut short their lives, or the lives of others. However, during the approaching holiday season, Soldiers should be particularly mindful that driving drunk can also end careers.

Remember that the concept of a battle buddy applies not only in combat, but across life’s most challenging experiences. Step in to protect your fellow Soldier and don’t let them drink and drive. Take the keys, call a cab, cut off the tap or tab, and stop the drinks from flowing. In all likelihood, taking charge in this situation is a daunting task, but do not let your honor and courage weaken. Rather, embody the spirit of General MacArthur’s famous words etched into the fabric of our nation right here at the U.S Military Academy so many years ago: “Duty, Honor, Country.”

How can you obtain legal assistance?

Your West Point Legal Assistance office is here to support you and provide guidance. Call us or contact us for further information.

Our offices are located in Bldgs. 606 and 626. Call us at 938-4541. Find us and “Like Us” on Facebook at www.facebook.com/USMALegalAssistance.