Drunk Driving Laws and Penalties

How driving under the influence is defined and the penalties for a DUI conviction.

Depending on the state, driving under the influence (DUI) might be called "operating while intoxicated" (OWI), driving while impaired (DWI), or some other similar name. But whatever the nomenclature, all 50 states have impaired driving laws that prohibit operating a motor vehicle:

  • with a blood alcohol content (BAC) of .08% or greater (.05% or more if in Utah or .04% or more if the driver is operating a commercial vehicle), or
  • while "under the influence" of alcohol or drugs.

In other words, to get a DUI conviction the prosecutor generally must prove some level of impairment (often established by statute) or that the driver's BAC was above the legal limit.

More About How DUI is Defined

Generally, driving under the influence has two parts that prosecutors must prove: impairment and driving. Although these elements seem straightforward, they require a bit more explanation.

Impairment and Drug and Alcohol Concentration

Per se DUIs. As previously noted, a driver can be convicted of a DUI for having a BAC of .08% or more (or .05% or more in Utah or .04% or more in a commercial vehicle). A DUI based on BAC level is often called a "per se DUI." Some states also have per se limits on the concentration of certain drugs and controlled substances in the driver's system. For example, a driver in Washington can be convicted of a per se DUI for operating a vehicle with a THC concentration of 5 nanograms or more per milliliter of blood.

Impairment DUIs. The other way a person can be convicted of a DUI is based on actual impairment. Each state has its own definition of what constitutes unlawful impairment, but most require that the driver be noticeably affected by the substance or be unable to safely drive. The investigating officer will often use roadside DUI tests—which test coordination and ability to focus—to determine if the driver is impaired. The prosecutor may use the officer's observations (in the form of testimony), along with chemical test results and expert testimony on the effects of the relevant drugs to prove actual impairment.

Driving or Operating a Vehicle

A few states, such as California, require prosecutors to prove a person was actually driving a vehicle to get a DUI conviction. But in the majority of states, all that's required is proof that the driver was in actual physical control of the vehicle.

State laws define "actual physical control" in different ways. But, generally, actual physical control doesn't require vehicle movement but only that the driver had the ability to operate the vehicle. For example, an impaired driver who is sleeping with the engine running would likely be considered to be in "actual physical control" of the vehicle under the laws of most states.

Standard DUI Penalties

A DUI conviction normally carries possible imprisonment, fines, and license-related penalties. State laws establish the penalty ranges based on the number of prior DUI convictions as well as other aggravating factors. The number of prior offenses is generally calculated based on the "lookback period." Only convictions that occurred during the lookback period (usually five to ten years) are counted as prior offenses. However, some states have a lifetime lookback, meaning all DUI convictions, no matter how old, are counted.

Within the parameters set by state law, judges have discretion as to what specific penalties to impose in each case. An offense that involves mitigating factors such as the defendant having no criminal history and voluntarily participating in alcohol treatment may result in the judge imposing penalties that are at the low end of the allowable range. However, for violations involving aggravating factors such as excessive impairment, child passengers, or public endangerment, the judge might decide harsher penalties are appropriate.

While the penalties in each state are different, here are some examples of the penalties a person might face for a first, second, and third DUI.

1st Offense

2nd Offense

3rd Offense


48 hours to 6 months

5 days to 12 months

90 days to 1 year



Up to $1,750

Up to $2,500

License Suspension

90 days

6 months

1 year

DUI Probation. DUI offenders will often have to complete a term of probation after serving a minimum number of days in jail. (Also, in some cases, the judge will order probation without requiring any jail time.) During probation, the offender generally must obey all laws and may have to complete other requirements such as a substance abuse treatment program. The court might also order community service, sobriety monitoring, attendance at a victim impact panel, or the use of an ignition interlock device (IID) as conditions of probation or part of the defendant's sentence.

Aggravating factors. A DUI that involves aggravating factors such as those mentioned above (like minor passengers or a high BAC) will often carry increased penalties that might include additional fines, jail, or driver's license penalties.

Misdemeanor and Felony DUIs

An impaired driving conviction will generally be charged as a misdemeanor. Misdemeanor offenses tend to carry moderate fines ($1,000 or so) and minimal, if any, jail time (almost always less than one year). While more serious than a traffic infraction, a misdemeanor might not have a substantial impact on the defendant's employment or education opportunities.

Some more serious DUI offenses can be charged as felonies. Each state classifies DUIs differently. But in many states, a third or subsequent DUI or a DUI involving personal injury or death can be charged as a felony. Felony DUIs generally carry more expensive fines than misdemeanors (sometimes, well up into the thousands) and months or years in prison (which typically includes mandatory minimums). Also, a felony conviction looks bad on your record and will often affect your employment and education opportunities.

Driver's License Penalties

An impaired driving incident will also result in driver's license penalties.

Conviction suspensions. During sentencing, the court will typically order that the driver's license be revoked for a few months to a few years. The length of a revocation typically depends on the number of prior convictions and whether the offense involves certain aggravating factors. However, the court often has the discretion to issue a restricted hardship license to the driver. Generally, a restricted license permits operation to and from work but requires the use of an ignition interlock device.

Administrative suspensions. All states have some form of administrative revocation laws, often called implied consent laws. Essentially, when a person is lawfully arrested for impaired driving, he or she is required to take a chemical test of breath, blood, or urine if requested to do so by an officer. The purpose of this testing is, of course, to determine the presence and amount of alcohol or drugs in the driver's system. A test that reveals an unlawful alcohol or drug concentration will usually result in license suspension, regardless of whether the driver is convicted of a DUI in criminal court. And drivers who refuse to submit to a chemical test often face longer license suspension (than that for a failed test) and possibly other penalties and consequences.

Options and Alternatives

DUI penalties are daunting and can affect a person's career opportunities and personal life. However, most states have programs available—such as diversions and first-offender programs—that can lessen the impact of a DUI arrest. And, in some cases, a driver who's charged with driving under the influence might have viable legal defenses. To ensure your rights are protected, it's always a good idea to talk with a qualified DUI attorney about your situation.

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