There are two aspects to a drunk driving (commonly referred to as “dwi” – driving while intoxicated or “dui” – driving under the influence) conviction – an administrative license suspension and a criminal charge(s). The administrative side is governed by administrative or civil law and relates to your driver’s license and driving record. The criminal aspect is governed by criminal law and dictates fines, fees, penalties, sentencing and parole (probation).

Administrative. Under an administrative license suspension, a person’s license is taken away before conviction when a driver fails or refuses to take a sobriety test – i.e., right on the spot and before you ever go to court. Some states will suspend your license on the spot when you are arrested for DWI, even if you have cooperated and taken the required Blood Alcohol tests.

Most states have these laws and may require you to schedule an administrative hearing within a short period of time after the arrest – generally within 5 to 10 days. This hearing is independent of your appearance in court. In other words, two governmental entities may be aiming to suspend or revoke your license independently and simultaneously. The administrative licensing hearing does not deal with whether you are guilty of a criminal act, but instead addresses the circumstances surrounding your arrest such as:

• Was your arrest based on reasonable grounds?


• Did the officer request that you take a test?


• Were you made aware of the consequences if you refused or failed the test?


• Did you refuse or fail the test?


• Should your license be suspended or revoked?

Criminal. After a drunk driving arrest, you must generally go to court for arraignment, trial or negotiated disposition, and sentencing. Most drunk driving convictions are classified as misdemeanors when no injury is involved, but could be classified as felonies in cases when serious injury or death occurs as a result. A misdemeanor can land you in county jail for up to a year, which a felony can wind you up in state prison for more than a year.

During court proceedings, a lawyer may challenge the blood alcohol testing reliability, offer defense expert evidence that the driver was not under the influence, obtain “discovery”, which is documentary evidence relevant to your charges, such as: When was the last time the Blood Alcohol testing machine was calibrated?

Sentencing determines:

• How your conviction will be classified


• What fines and taxes you must pay


• How long your license will be suspended or revoked (and the possibility for obtaining a temporary license)


• Whether parole is warranted


• Whether community service must be completed


• What, if any, drug programs or classes must be completed


• Whether an ignition interlock device must be installed

Penalties can be severe for first time offenders and are always greater for second and third time convictions.

1st Conviction: Up to a year in jail, or by a fine between $600 and $2,100, or both.  Driver’s license suspended for 90 days.

2nd Conviction (within five years): Mandatory jail time of at least five days, but up to one year, or instead, mandatory community service for at least 30 days.  Mandatory fine of between $1,100 and $5,100.  Driver’s license revoked for a year.

3rd Conviction: Mandatory jail time of at least 60 days, but up to one year.  Mandatory fine of between $2,100 and $10,100.  Driver’s license revoked for three years.

4th or Subsequent Conviction: Counts as a “Class C felony.”  Mandatory jail time of at least one year, but up to ten years.  Mandatory fine of between $4,100 and $10,100.  Driver’s license revoked for five years.

Convicted drunk drivers will have a subsequent criminal record. Contrary to popular belief, a drunk driving conviction may remain on your record forever unless your state allows it to taken off (expunged). Therefore, it will appear on your record for employers, credit bureaus, and government agencies to see. The police practice of maintaining records of convictions is an issue independent of how far back the prosecutor can go to allege “prior convictions” against you to increase the penalties if you are convicted.

What to do? Make sure you know your state’s laws on drunk driving. Consider hiring an attorney to represent you in an administrative hearing or when going to court if the process overwhelms you. Many provide free consultations. Click to find a DUI attorney in your location or post your case to an attorney in your area.

(Updated August 31, 2007)