Drunk driving, sometimes called driving while under the influence (DUI), driving while intoxication (DWI), and driving while impaired (DWI). Driving while under the influence of alcohol is illegal in every state in the United States. Drunk driving is generally defined as driving with a blood alcohol content (BAC) of above .08 percent; however, for the driver of a commercial vehicle this number is usually limited to .04 percent. Zero tolerance laws in many states do not allow teenage drivers to have even a trace of detectable alcohol in their systems.
A DUI or DWI charge can lead to the loss of a driver's license, jail time, fines, community service or a host of other consequences. Understanding the laws and penalties associated with drunk driving can help you to avoid a violation or to proceed properly if a violation has already been issued. The information here will help you make informed decisions about your DUI.
When a person drives with a blood alcohol content higher than .08 this is generally referred to as “driving over the legal limit.” Even though driving over the legal limit is the concern of most defendants, driving while intoxicated is actually a much broader charge because it includes substances other than alcohol.
The penal code of every state defines key drunk driving terms. The first major definition is intoxication. Intoxication is usually defined in two ways. The first is by the state’s legal limit—usually .08 or higher. Intoxication is also defined as the loss of a person’s normal mental or physical faculties because of the introduction of any substance into their system.
DUI and DWI charges include more than just intoxication by alcohol. A defendant can be charged with DUI for a variety of substances including marijuana, pain killers, cold medicine, and even mouthwash.
A defendant can be charged with DUI even if he had a legal prescription for the substance which resulted in his intoxication. Many people assume that because the usual title implies the consumption of alcohol, that drunk driving laws are designed to crack down on the consumption of alcohol. Drunk driving laws are actually designed to prohibit people from driving while they are impaired—not just because of the consumption of alcohol. As long as the state can prove the loss of a person’s mental or physical faculties, then a person can be charged with drunk driving.
The second major definition in drunk driving laws is the word driving. This seems like a simple concept, but is also defined much more broadly than most people think. Instead of limiting DUI punishment to the movement of a vehicle, driving definitions can include any operation of the motor vehicle. Even where the title of a statute may read “driving while intoxicated,” the body of the statute will ban any operation of the vehicle while the person is intoxicated.
Operation of the vehicle is so broadly defined that it includes almost any activity related to the control of the vehicle. Activities which courts have considered “operating a vehicle” include: turning the ignition on, pressing the brake pedal when the engine is on, and letting the vehicle idle in park. As long as the driver is engaging in some operation of the vehicle, then he can be charged with DUI if he is intoxicated while doing so.
The third major definition is vehicle. The term vehicle broadly refers to any motor powered device. This can include boats, four wheelers, airplanes, and motorcycles. Even a defendant dirt-biking on the weekend can be charged with DWI if he is operating the dirt bike while intoxicated. DWI charges are not limited to cars and trucks.
A DUI or DWI arrest usually begins with a traffic stop. Often the behavior of the driver becomes part of the facts used to support a DUI arrest. For example, erratic driving, weaving, and near collisions are often used to demonstrate that a person has lost control of his normal faculties. Once the traffic stop begins, law enforcement officers almost immediately begin noting and gathering evidence. Notes include things like the odor of alcohol coming from the vehicle, open containers of alcohol inside the car in plain view, slurred speech of the driver, and any unusual answers to questions.
If the officer suspects that the driver is intoxicated, he may ask the driver to submit to a series of tests. These are called field sobriety tests. Several different tests are used by law enforcement. They are designed to measure the basic motor abilities of the driver. For example, the “walk and turn” test requires a driver to walk in a straight line, turn, and walk back towards the officer. While the driver is walking, the officer is looking for any clues of intoxication. These clues include stumbling and failing to maintain a straight line. The exact test administered will depend on how the officer was trained. For a quicker result, the officer can also ask drivers to submit to a portable breath test, or PBT. However, most officers will focus more on the field sobriety tests because they are admissible in court, whereas PBT tests are not.
If the officer believes that the driver is intoxicated, he may want to confirm the results with an official breath test or blood test. These are admissible in court. Some states allow defendants to refuse to submit to a breath or blood test, but automatically suspend their license when they do. Some courts even allow the refusal to be admitted at trial as evidence that the defendant was hiding his guilt by the refusal. Other states have no-refusal provisions for repeat DWI offenses. For example, defendants in Texas are not permitted to refuse a blood draw in their third DWI.
Before deciding to take a case to trial, a defendant should ask a dui lawyer to evaluate the reliability of all the evidence. Defenses in DUI cases may involve challenging the validity of any field sobriety, breath, or blood test results. A defendant should also understand all of the sentencing options associated with a DUI conviction and enhancement options.
A DWI can be punished as a misdemeanor or felony offense. The number of prior convictions and egregious circumstances will determine whether an offense is punished as a misdemeanor or felony. A basic, first-time DUI arrest is charged as a misdemeanor offense. A defendant is usually placed on probation for up to a year or more with conditions designed to curtail any drinking issues. Conditions of probation can include requirements such as: participating in drug or alcohol counseling, installing an interlock device, and submitting to monthly urinalysis testing. Defendants can also be required to serve minimum periods of confinement in the county or parish jail as a condition of their probation. Even though a serious offense, the first DWI conviction is usually not considered a high level misdemeanor. However, any number of events can elevate a first-time arrest to a higher level.
Misdemeanor DUI offenses can be enhanced by circumstances surrounding the commission of the offense. Some states will elevate a first time DUI arrest to a higher misdemeanor level if the defendant’s blood alcohol level was extremely high, they had open containers in the car, or if they were in a school zone. A defendant can also face additional penalty enhancements if underage or if the defendant is a commercial driver. A first time DWI arrest can be bumped to a felony if a child was in the car or if someone was hurt as a result of the defendant’s driving.
Misdemeanor DUI offense are also enhanced by a defendant’s prior DUI history. The number of prior DUI convictions required to have an adverse effect on a DUI charge depends on the laws of the state where the arrest was made. New Mexico elevates a DUI arrest to a felony on the fourth arrest, whereas Texas will elevate the arrest to a felony after only two prior convictions.
Subsequent misdemeanor DUI convictions can result in even longer periods of probation or incarceration in a county jail for up to a year. Felony DUI convictions are even longer than misdemeanor probations, ranging from two to ten years. Because a felony DUI is considered a more serious offense, the court can also impose more strenuous probation conditions, such as requiring a defendant to submit to mandatory in-patient drug and alcohol treatment.
The length of probation or jail or prison time is only the beginning of the punishment for a DUI arrest or conviction. DUI’s are one of the few offenses where part of the punishment begins almost immediately. Once a defendant is arrested for a DUI charge, many states automatically suspend the defendant’s driver’s license – even though he has not yet been convicted. Some states will suspend a defendant’s license again after he is convicted, with no credit for the prior suspension. To get a suspension lifted or a license reinstated after a suspension usually requires the payment of additional fees or fines.
DUI convictions also carry serious long-term consequences. They tend to be more difficult to expunge or remove from a criminal record. Some states prohibit a defendant from obtaining a commercial driver’s license after a DUI conviction.
Convictions may stay on a person’s record and be found by any party who does a background check. This might include employers, landlords, or others. Therefore, a DUI conviction can affect employment and other opportunities for years after the conviction, or even permanently.
DUI convictions can also affect immigration status. If a person is in the process of becoming a U.S. citizen, he can be denied citizenship and deported for the commission of a drunk driving offense.
A DUI conviction can also limit a defendant’s travel plans. Some countries, like Canada, will not permit a defendant with a DUI conviction to enter their county — even when the conviction was only for a misdemeanor level offense. The main thing for a defendant to remember is that even though the punishment is finished in the court’s eyes, the long-term consequences tend to linger for a number of years
Understanding the drunk driving laws of your state and how they apply to your situation is the first hurdle in any DUI defense. Even when defendants cannot completely beat the charge, they may be able to negate any aggravating factors, thereby reducing the level of their offense and punishment. A qualified drunk driving attorney can assist with the development of this strategy and provide a thorough discussion of plea bargaining options.