Drunk driving is when a person operates a motor vehicle when their driving is impaired by alcohol or another substance. Other substances that can impair a person’s driving ability can be controlled substances, e.g. illegal drugs such as methamphetamines or over-the-counter medications.
The critical consideration is whether the substance impairs a person’s driving ability. Whether a person is considered to be legally intoxicated depends on a person’s driving and the state’s laws. Most states have laws that make it a crime to drive with a blood alcohol content (BAC) of 0.08% or 0.10%.
However, this does not mean that a person who has consumed alcohol and then drives a motor vehicle can only be guilty of driving while intoxicated or impaired if their BAC reaches 0.08% or higher. That is not the case.
SupposeI a law enforcement officer observes a driver and notes that their driving appears to be impaired. In that case, e.g., they are weaving within their lane of travel or driving too slowly, the officer may legally stop the person and administer the field sobriety tests. If the tests show that the person is impaired and the officer determines that the person has a BAC of less than 0.08%, the person can still be charged with driving while intoxicated or impaired.
Or a person might be involved in an accident. If they were at fault, their BAC might be an issue, and if it is found that the person has a BAC, even if it is less than 0.08%, the person can be charged with DUI or DWI.
How Can I Be Arrested for Drunk Driving?
A person may come to the attention of a law enforcement officer while driving in any number of ways. An officer may notice the person driving erratically, speeding, or making dangerous maneuvers. After the officer stops the person, they usually first determine whether a person might be impaired by alcohol or drugs by giving the person the field sobriety tests.
If the test results indicate that a person is impaired, the officer may want to administer a breathalyzer, blood, or urine test to determine the person’s BAC.
It is important to remember that drunk driving offenses are not the same as simple traffic citations, such as running a stop sign or failing to yield to oncoming traffic. A conviction for drunk driving is a misdemeanor or felony criminal offense that can lead to such penalties as the payment of fines, mandatory classes or meetings, driving restrictions, suspension of the perpetrator’s driver’s license, and/or jail time. A felony DUI with injury to another person might lead to prison time.
A person’s first drunk driving offense is usually charged as a misdemeanor. However, if a person already has one or more convictions on their criminal record or someone is hurt as a result of a person’s impaired driving, they are more likely to face a felony charge. Usually, a felony conviction comes with more severe penalties. Understanding the specific impaired driving laws and the penalties for a conviction in a person’s state is important.
What Happens When I Am Arrested for Drunk Driving?
When a person is arrested for drunk driving, the police do the following:
- The person is detained by the police;
- The person’s car is towed, and the person has to pay for it;
- The person is taken to the police station;
- The person is asked to submit to a blood alcohol content (BAC) test. Every state has implied consent laws, so a person faces the consequences if they refuse to take the test; and
- They might be kept in jail until they post bail.
The police refer the case to the prosecuting authority with jurisdiction over it, usually a district attorney. The district attorney initiates a criminal case against the person.
What Crime Can I Be Charged With for Driving While Drunk?
The state where a person lives defines the specific crime or crimes with which they can be charged for drunk driving. Driving under the influence (DUI) or driving while intoxicated or impaired (DWI) is the most common charge in the majority of states.
Some examples of state laws for drunk driving are as follows:
- California: DUI in California is defined as driving under the influence of alcohol or drugs or driving with a BAC of 0.08% or higher.
- Reckless driving is a reduced charge which refers to driving a vehicle with willful or wanton disregard for the safety of other people or their property.
- Wet Reckless Driving: This is also a reduced charge which refers to any reckless driving that involves alcohol.
- Florida: Florida defines the crime of DUI as a person driving under the influence of alcoholic beverages, controlled substances, or other chemicals when the person is affected to the extent that their normal faculties are impaired. Or the crime is defined as a person driving with a BAC of 0.08% or higher.
- The crime is “Driving with an Unlawful Blood Alcohol Level” (DUBAL). A person driving on Florida’s roads and highways can be charged with DUBAL for driving with a BAC of 0.08% or higher.
- New York: Some states, including New York and Texas, charge the crime as driving while intoxicated (DWI) instead of a DUI. However, it is basically the same thing. In New York, this refers to a situation in which a person drives while impaired by alcohol or another substance or when someone drives with a BAC of 0.08% or higher.
- Driving With Ability Impaired (DWAI): A New York resident can also be charged with a DWAI for driving with a BAC greater than 0.05% but less than 0.07%, allowing lesser charges for someone driving under the legal limit for a DWI.
These are just a few examples of the crimes a person can be charged with if they drive while impaired by alcohol or substances. In addition, most states also have laws addressing death that result from drunk driving. A person can be charged with such crimes as felony hit-and-run or vehicular homicide.
In Wisconsin, Michigan, Iowa, and Indiana, the crimes are known as operating while intoxicated or impaired (OWI) or operating under the influence (OUI). In these states, the crime of OWI is defined as driving with a BAC of 008% or higher or otherwise driving while under the influence of alcohol or other substances.
Is There a Difference Between an OWI and a DUI?
Usually, the terms OWI and DUI are used interchangeably and are just different ways of referring to criminal offenses that are mostly the same in other states. For the most part, DUI, DWI, OUI, and OWI are all the same criminal offenses, and conviction leads to similar penalties.
What Is a Zero Tolerance Drunk Driving Law?
Several states have zero tolerance drunk driving laws. In a zero tolerance state, if a person under the age of 21 is pulled over and has any measurable amount of alcohol in their system, they can be arrested for drunk driving. The low BAC, usually up to 0.02% depending on the state, is enough to justify charging the person with the state’s version of drunk driving.
For example, driving with a BAC of .04% or higher in California is, per se, illegal if the perpetrator has a commercial driver’s license or is currently on probation for a prior DUI case.
If a driver is under 21, driving with a BAC of .01% or higher is, per se, illegal. A .01% or higher BAC means that the prosecution does not have to produce proof that the person’s driving was impaired. Rather, the prosecution must only prove that the person was under 21 and had a BAC of .01% to obtain a conviction of DUI.
What Are the Possible Penalties for a Drunk Driving Conviction?
As noted, a variety of punishments are possible if a person is convicted of drunk driving. The penalties depend on the state in which a person is convicted of the crime. If it is a person’s first drunk driving conviction and they otherwise do not have a criminal record, then the person is likely to be charged with a misdemeanor offense. A judge will likely order the person to pay a fine, attend a drunk driving class and serve a short time in jail or on probation.
For example, in California, for a first-time DUI conviction, a person can be sentenced to up to 6 months in the county jail, ordered to pay a fine of from $390 to $1000 and use an ignition interlock device (IID) in their car for 6 months.
The use of the IID is usually not mandatory for a first-time DUI, but if a person does not use the IID, the California Department of Motor Vehicles would suspend their driver’s license for 4 months. However, after 30 days, a person could get a restricted license allowing them to drive to and from work only for 5 months. Finally, a person would have to attend DUI school for 3 or 9 months.
For second and subsequent offenses, the possible time in jail is increased. The fine may also increase, the term of use of the IID increases, and the amount of time for which a person must attend DUI school goes up as well.
Some variations on these punishments, e.g., fines, time in jail, use of an IID or a restricted driver’s license, and attendance at DUI school, would also make up the sentence for a DUI conviction in most other states.
For repeat offenders, or if serious bodily injury or death results from a person’s drunk driving, the person could face more severe penalties such as prison time or loss of the privilege to operate a motorized vehicle.
Another undesirable consequence of drunk driving is increased car insurance rates.
Keep in mind that penalties can vary from state to state and from case to case. There are always situations that can make the DUI penalties more severe. For example, if a person drove drunk with a child in the car or in a school zone with school in session, the punishment might be enhanced.
Do I Need the Help of a Lawyer for My Drunk Driving Issue?
If you have been charged with drunk driving, you should consult a local DUI or DWI attorney in your area. An attorney can review the facts of your case and identify any possible defenses you may have.
Your attorney can inform you about your options, whether a negotiated plea agreement or a trial is your best way forward. If there are any changes to drunk driving laws or rules, your lawyer can keep you updated on what your legal rights are with regard to your case.