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. This article covers how DUI is defined, some of the typical penalties for a DUI conviction, and answers to some common questions about DUI cases.
All 50 states have impaired driving laws that prohibit operating a motor vehicle:
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.
Per se DUIs. 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 (marijuana) 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.
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.
In DUI cases, a key factor is also where the driver was operating the vehicle. The DUI laws of some states apply only on public highways, while other states prohibit impaired driving on public and private property.
The DUI (and implied consent) laws of some states explicitly limit their application only to public highways. In these states, the term "public highways" generally includes interstates and actual highways, but also any public road such as residential and city streets.
In many states, DUI laws extend to public and private property that's "open to the public." Generally, property that's privately owned and maintained is considered open to the public if it's for the use of the general public. Some of the most common examples of private properties that are open to the public would include roadways and parking lots for shopping centers, movie theaters, sports stadiums, hotels, and various types of business offices.
Some states have opted to avoid any confusion about where DUI laws apply by extending the reach of their laws to all areas within the state. In these states, a person could theoretically be arrested for driving under the influence anywhere within state lines.
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.
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.
48 hours to 6 months
5 days to 12 months
90 days to 1 year
Up to $1,750
Up to $2,500
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.
In some states, DUI offenders are required to attend a "Victim Impact Panel" (VIP). At these presentations, DUI offenders hear from victims and learn about the heartbreak and harm that can come from an impaired driving injury or fatality. VIPs are sometimes available online. The offender might have to pay $50 or so to attend the panel.
In many states, an impaired driving conviction requires the offender to complete an alcohol and drug evaluation, the results of which can be used by the judge to decide whether treatment is appropriate. Depending on the circumstances, the driver might have to complete inpatient or outpatient substance abuse treatment or just an educational course on substance abuse.
An impaired driving incident will also result in driver's license penalties.
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.
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.
In many states, DUIs that involve certain "aggravating factors" carry more severe penalties. Depending on the state, factors that can lead to enhanced DUI penalties might include having minor children in the vehicle, excessive impairment, and causing injuries or property damage.
As explained below, aggravating factors can also elevate a DUI from a misdemeanor to a felony.
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.
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.
All states have stricter DUI laws for drivers who under under the age of 21.
Drivers who are younger than 21 years old are generally prohibited from consuming alcohol and are certainly prohibited from driving after drinking. State laws that prohibit underage drinking and driving go by different names such as "zero-tolerance," "underage DUI," "minor DUI," "not-a-drop," and the like.
The underage DUI laws of many states—including Washington, South Carolina, and Colorado—prohibit the operation of a vehicle with a BAC of .02% or more. Other states prohibit underage drivers from operating a vehicle with any measurable amount of alcohol in their system. So even if not visibly impaired, a driver who's under 21 years old can be charged with an underage DUI based on having a very small amount of alcohol in his or her body.
The penalties associated with an underage DUI are generally less severe than those of a standard DUI conviction. Also, the penalties might be different depending on the underage driver's specific age. For example, jail time isn't usually a possible consequence for drivers who are younger than 18 years old.
Jail time and fines. In many states, an underage DUI can't result in jail time. However, other states allow judges to order a short jail sentence. The laws in many states also impose fines for underage DUI violations.
Underage DUI probation. The laws in many states give judges the option of placing an underage DUI offender on probation for up to a year. Conditions of probation might include random sobriety testing, attendance at a victim impact panel, or some sort of treatment program.
License suspension. An underage DUI will almost always lead to license suspension. The suspension period typically ranges from 30 days to one year, depending on the state. Some states will completely revoke the licenses of younger drivers, requiring them to complete the graduated license process from the beginning. In some states, suspended drivers can obtain a restricted license by installing an ignition interlock device.
The DUI laws of each state are a little different, and the facts of every case are unique. So a defense that might work in one case might not work in another. But the DUI defenses that tend to work best usually fall into one of the following categories:
These are big topics, but we have an article specifically dedicated to explaining common DUI defenses.