By Amy Vandervort-Clark, J.D. | Legally reviewed by Melissa Bender, Esq. | Last reviewed September 05, 2023
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In every state, it is a criminal offense for a driver to operate a vehicle while impaired by the effects of alcohol or drugs. The National Highway Traffic Safety Administration (NHTSA) estimates that someone dies every 39 minutes in traffic accidents caused by driving under the influence of drugs, alcohol, or both. It is a dangerous crime but all too common. It's also an avoidable offense.
The specific offense may go by various names depending on your state. It is most commonly referred to as driving under the influence or DUI. Your state may classify the crime as:
Whatever the specific title, state criminal law makes it unlawful to operate a car, truck, motorcycle, or commercial vehicle if:
An essential element of a DUI charge is that you are operating or in control of a motor vehicle. “Motor vehicle" has been broadly defined in most states to include other motorized or battery-powered devices, not just cars or trucks. This includes but isn't limited to:
In some states, an impaired driving charge can come from riding a bicycle or skateboard.
You may also face a drugged or drunk driving charge if you aren't in the act of driving. Often, you only need the opportunity to drive. This could mean you have the keys inside the vehicle, the keys are in the ignition, or you have the lights or air conditioning running but aren't in motion. You may have made it home, but you were clearly driving. State laws have moved towards a broad interpretation of what “operating" or “being in control" of a vehicle means and what can get you arrested.
Most states charge a DUI as a misdemeanor for a first offense if your blood alcohol content is not very high. You will receive more serious charges if your alcohol level is excessive, usually around 0.15%. It may even rise to a felony.
When a law enforcement officer makes a vehicle stop and suspects intoxicated driving, the officer will conduct field sobriety tests. They will also ask for your consent to some form of chemical test for intoxication.
Field sobriety tests involve a police officer asking you to perform several tasks. These assess impairment of your physical or cognitive ability. Field sobriety tests include evaluating your ability to walk a straight line, heel to toe, requiring you to maintain balance while standing on one leg, and looking for horizontal gaze nystagmus (HGN) in your eyes.
Chemical tests conducted in connection with the vehicle stop may include using a breathalyzer test. A breathalyzer measures a driver's breath-alcohol concentration (BrAC). You may need to submit a blood test or urine sample to determine blood-alcohol concentration (BAC) or the presence of drugs. Many states do not allow drivers suspected of DUI to choose which chemical test to administer.
All states have implied consent or duty to submit laws. These require you to submit to some form of chemical test, such as a breath, blood, saliva, or urine test if suspected of a DUI. When you obtain your driver's license, you consent to DUI testing as part of this privilege. An officer only needs to reasonably believe you are under the influence of alcohol or drugs to ask you to cooperate.
If you refuse to submit to testing, implied consent laws impose penalties such as immediate revocation of your driver's license and arrest. Often, license sanctions for test refusal are harsher than those imposed after the failure of a chemical test. In most states, a driver's refusal to submit to a chemical test can enhance the penalties imposed if convicted of a DUI.
Most state laws allow law enforcement to force you to submit to a chemical test, even if you refuse. Plus, they can use your refusal as evidence against you in court.
All states have DUI laws that deem "per se intoxicated" any driver with a blood-alcohol concentration (BAC) above a set limit. This means if your BAC is at or above the legal limit, you are intoxicated in the eyes of the law. No additional proof of driving impairment is necessary. Most states have this limit set at 0.08% for drivers over 21. The limit is usually around 0.04% if you are a commercial driver.
In Utah, the law changed in 2019 to define intoxication at 0.05% BAC. Legislators in other states are proposing similar changes in the wake of Utah's reduction in traffic fatalities.
All states carry "zero tolerance" laws that target drivers under the legal drinking age. These laws penalize persons under 21 for operating a vehicle with any amount of alcohol in their system. DUI penalties are worse if underage drivers have a BAC at or above the state's legal limit.
Remember that you may face arrest and conviction for a DUI without proof of per se intoxication if there is other evidence of impairment. For example, a driver with a 0.06 BAC level can be guilty of DUI if an arresting law enforcement officer testifies that he observed the driver's vehicle swerving and that the driver exhibited slurred speech and severe inattention during questioning after a vehicle stop.
Marijuana use is becoming legal or decriminalized in more states, and not just for medicinal uses. Yet no nationally recognized standard on intoxication limits exists. Many states still have zero tolerance for any drugs in your system, even marijuana. Several have now set a per se limit for marijuana or tetrahydrocannabinol (THC) in your system while driving. States such as Colorado, Illinois, Nevada, Montana, Ohio, and Washington recognize a limit of between two nanograms per milliliter (ng/ml) of blood to five ng/ml. At this amount, there is a presumption that you are too impaired to drive safely and can receive a DUI charge. These laws change yearly, so you should check your state laws or consult a criminal defense or DUI attorney to learn more.
A DUI conviction may carry criminal penalties including fines, jail time, probation, and community service. Some state laws impose certain minimum penalties for first-time offenses, then have increased penalties for second or third offenses. The severity of criminal penalties will vary according to the circumstances of the crime. The court will consider:
FindLaw has a state-by-state listing of specific penalties associated with a DUI conviction if you want to learn more about your state.
In addition to potential criminal penalties, you must deal with your local Department of Motor Vehicles (DMV). A DUI arrest or conviction will have an immediate and harmful impact on your driving privileges.
Most state laws allow the DMV to immediately suspend the driver's license of any person operating a vehicle with a BAC above the state limit or any driver who refuses to submit to chemical testing. The state may confiscate or impound your vehicle and you will incur significant administrative costs. This loss of driving privileges can occur even before a DUI conviction.
Some states allow you to get a temporary limited license. You will need to request an administrative hearing. At this hearing, you may argue against license suspension or restoration of restricted driving privileges.
The impact of a DUI arrest or conviction on driving privileges will vary according to your history and the severity of the offense. An increasingly popular DUI consequence, especially for repeat offenders, is the mandatory installation of an ignition interlock device (IID) in your vehicle. This breath-testing device measures your BAC and will prevent the vehicle's operation if it detects any alcohol.
You will pay the installation, rental, and maintenance costs of the ignition interlock device. Rental fees can amount to as much as four dollars per day, so your expenses can add up quickly.
Due to recent law enforcement trends focusing on prevention, some district attorney offices refuse to negotiate plea bargains in DUI cases. This is especially true if evidence of the violation is strong. Some states, like Kansas, have enacted laws prohibiting government attorneys from entering into plea bargains with DUI defendants and reducing a charge to a non-DUI-related offense. However, in other cases, a DUI charge may be reduced to a lesser offense like reckless driving or an "open container" violation.
While this article provides DUI offense basics, each case is unique. If you face a DUI charge, it's a good idea to contact a local DUI defense attorney. They can use their expertise to help you get a much better outcome for your case.
Contact a qualified DUI attorney to make sure your rights are protected.
Get tailored advice and ask your legal questions. Many attorneys offer free consultations.