DUI and DWI Overview

What it means to be charged with a DUI (driving under the influence of drugs or alcohol) or DWI (driving while intoxicated).

Drunk driving is known as driving under the influence (DUI) in some states and driving while intoxicated (DWI) in other states. Still, others use the term operating under the influence (OUI). Such crimes are considered to be among the most serious of driving offenses—not surprisingly, as they cause over one-third of all traffic fatalities. DUIs and DWIs also tend to carry heavy penalties, and the trends are toward even tougher legislation.

There are essentially three types of drunk driving laws:

  • Driving under the influence. Every one of the 50 U.S. states makes a DUI or DWI a crime. DWIs and DUIs are usually defined as driving while impaired by alcohol or other legal or illegal substances.
  • BAC of .08% or higher. In all states, it is also a crime to drive with a blood alcohol concentration (BAC) of .08% or higher, regardless of whether one's driving was actually impaired or affected.
  • Felony DUI. Certain types of DUIs can be charged as a felony, a serious crime that could result in a prison sentence.

What "Driving Under the Influence" Means

A DUI law may prohibit driving under the influence of an alcoholic beverage, driving under the influence of a drug, and driving under the combined influence of an alcoholic beverage and any drug (legal or illegal), regardless of blood-alcohol level.

To prove a person is guilty of the offense of driving under the influence, the following elements must be proven:

  • The person drove a vehicle—that is, steered and controlled it while it was moving.
  • At the same time, the person was "under the influence" in that his or her ability to drive safely was affected to an appreciable degree by having drunk an alcoholic beverage, taken a drug, or combined alcohol and drugs. (Note that some people's driving can be impaired after having consumed even a relatively small amount of drugs or alcohol.)

Given these elements, if charged with a DUI, you could argue that you weren’t under the influence, even though your BAC was at or over .08%.

Example: Cindy Heavyweight left work at 5:00 p.m., and—as she had done every day for the past 20 years—drove straight to the bar. As usual, Cindy had six beers and two shots before setting out for home at 8:00 p.m. While driving home, Cindy was stopped by Officer Smith for a broken taillight. Cindy wasn’t swerving or driving unsafely. When Officer Smith approached Cindy, he could smell a strong odor of alcohol, but Cindy didn’t appear intoxicated. Cindy performed three field sobriety tests perfectly, but a breath test revealed a BAC of.09%. Although Cindy is guilty of driving with a BAC of.08% or higher, she might not be guilty of a DUI based on impairment because there’s no evidence that her drinking affected her driving.

What "Driving While Blood Alcohol Is. 08% or Higher" Means

In every state, a person with a BAC.08% or higher is presumed to be under the influence of alcohol. Many states have taken this one step further and flatly prohibit anyone from driving with this much alcohol in their blood, whether or not driving is impaired.

To prove a person is guilty of the offense of driving with a BAC of.08%, the following elements must be proven:

  • The person drove a vehicle, and
  • Alcohol was present in the driver's blood at a concentration of.08% or greater while driving. (Some states set the limit even lower for underage drivers.)

In states with this type of law, during a trial, the jury will usually be given a choice of finding a defendant guilty of driving under the influence and/or driving with a BAC of.08% or higher. So, even if the defendant and witnesses could convince a jury that the driver was doing an outstanding job, driving in a manner as cautious and conservative as someone who had nothing to drink, the jury can still find the person guilty if it believes the driver’s BAC was.08% or more while driving. The penalty in most cases is the same whether the defendant is convicted of one or the other, or both.

What a Felony DUI or DWI Means

Although some DUIs (first offenses, for example) are usually treated as misdemeanors, under certain circumstances the crime can be bumped up to a felony, which is far more serious.

If a driver kills or injures someone as the result of driving while under the influence of alcohol (or having a BAC of.08% or more in those states that punish this separately), the driver can be found guilty of a felony and could go to state prison for years. Prior convictions for misdemeanor under-the-influence or at-or-over-.08% will usually result in a longer prison sentence.

In some states, a third or fourth DUI or DWI is by itself enough to get a driver charged with a felony. It won't matter whether anyone was killed or injured as a result.

Talk to a Lawyer

Anyone accused of a DUI or DWI should contact a lawyer with experience in this area of law. Even if you don’t hire a lawyer to represent you, a consultation can be tremendously helpful. A knowledgeable local lawyer should be able to advise you of the law in your state, the local prosecuting office’s plea bargaining tendencies, and the implications for your driver’s license. A lawyer can also explore potential defenses.

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