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Elements of a DUI Offense

Driving under the influence of drugs or alcohol can cause turmoil throughout every aspect of your life. It is also dangerous and can be deadly. Yet driving while impaired remains a significant problem in the U.S. The Centers for Disease Control and Prevention (CDC) estimates around 1 million DUI arrests yearly.

Driving under the influence (DUI) is defined differently in different jurisdictions. It may also go by other terms. Depending on where you live, the crime might be called "driving while intoxicated" (DWI), "operating under the influence" (OUI), or "operating while intoxicated" (OWI). Even so, there are many common elements and overlapping definitions.

Here's a broad overview of DUI-related definitions and what authorities must generally prove to obtain a DUI conviction.

Definition of Driving Under the Influence

Most state laws define the crime of driving under the influence as operating a motor vehicle while under the influence of alcohol or intoxicating substances. An intoxicating substance can be an illegal drug, prescription, or over-the-counter medication that alters your mental state. Ultimately, the charge means you have driven poorly or erratically and caught the attention of law enforcement. The police officer will check blood alcohol concentration (BAC) or may ask for blood or urine samples to test for intoxicants or drugs.

Newer statutes also provide for a "per se offense." A person commits this when driving with a blood alcohol concentration at or above the legal limit. This means that even if you have driven perfectly, you can still be charged with driving under the influence if your BAC is at or above a certain percentage.

Elements of a DUI Charge

Elements make up all criminal laws. Each element needs proving beyond a reasonable doubt for a conviction.

Intoxication is not limited to excess alcohol consumption. Any intoxicating substance, legal or illegal, can lead to a charge. Driving under the influence may also go by different terms depending on your state. Some states call it “driving while intoxicated." Others use “operating under the influence" or “while intoxicated." But the criminal law elements around a DUI charge are very similar.

Driving and Physical Control

Several state DUI laws include that a person needs to be in “actual physical control" of a vehicle as an element of the offense. This usually requires a person to be behind the vehicle's wheel for a drunk driving offense. You don't have to be driving to meet this element. Some statutes require the motor to be running. Others say the motorist only needs to possess the vehicle's keys or be in the driver's seat.

The court will examine circumstantial evidence when deciding if the prosecutor has met all elements. Being in the driver's seat or having a vehicle running, even if you are not actively driving, shows intent or means to drive while intoxicated.

Other states use the term “operating a vehicle" within their statutes. These are "operating a vehicle while intoxicated" or "operating under the influence" crimes. This language can require that an intoxicated person drive a car or be in motion. However, states interpret the definition of “operating" much more broadly to include more than actual driving.

In some cases, there is a question about the vehicle's use. Was the person driving or operating the vehicle, or was the car a temporary shelter? Courts in various jurisdictions have identified several factors to determine whether someone has been driving a car. These are generally:

  • The location of the vehicle
  • The location of the driver in the vehicle
  • The location of the keys to the vehicle
  • If the vehicle is drivable

What Is a Vehicle?

States are expanding the definition of a vehicle in DUI cases. Traditionally, driving a motorized vehicle while under the influence was the limit of the statutes. In many states, a DUI charge can result if you are riding a bicycle or skateboard or operating a lawnmower, an ATV, or even a golf cart while under the influence.

Many states prohibit operating a boat or other watercraft under the influence. You will face many of the same legal penalties as a traditional DUI charge.

Under the Influence and Intoxication

Intoxication includes alcohol and any substance that causes some degree of impairment. This could be legal, prescription, over-the-counter drugs; illegal substances; or inhaled fumes. Law enforcement officers use field evidence, driver evidence, and chemical testing to determine whether a driver is under the influence. This means they may have you perform field sobriety tests. You will also submit to chemical testing to check your BAC level or look for certain drugs in your blood, urine, or saliva.

Police officers look at the driver's physical appearance and symptoms of intoxication or drunk driving.

The following are some of the more common symptoms of intoxication:

  • Disheveled appearance
  • Eyes appear red, glassy, or bloodshot
  • Flushed face
  • Breath that smells like alcohol
  • Speech that's thick and slurred

Field tests and chemical tests determine blood alcohol content (BAC) or the presence of an intoxicating substance. The most common of these methods involves a Breathalyzer or other breath test. You may need to submit to urine and blood tests, especially if the officer suspects you of being under the influence of drugs. More police officers carry field testing kits that screen for certain substances, such as commonly abused drugs. However, the results will need to be confirmed by additional lab testing, as there are ongoing questions surrounding the reliability of field test results. Consequently, many states do not allow the results of field-testing kits or handheld Breathalyzers as evidence in court.

Testing will include illegal, intoxicating, or controlled substances and your BAC. These test results are evidence of intoxication that gets submitted to the court.

Per Se Impairment

All states have per se intoxication laws. Under these statutes, if your alcohol level is at or above the legal limit, you are intoxicated under the law. The officer and prosecution need no other proof of intoxication. Depending on your state, the legal limit is 0.05% to 0.08%.

If you are a minor or under the legal age to consume alcohol, any amount of alcohol in your system can lead to arrest. These are often called “zero tolerance" laws.

Implied Consent

While a driver can refuse BAC and drug testing, there can be severe penalties for refusal. In exchange for having a driver's license, you give implied consent to law enforcement to administer testing for intoxication. Refusal to submit to chemical testing can result in immediate revocation of your driving privileges and jail time.

You will not avoid conviction for a DUI by refusing to test. Conviction is still possible with other evidence of your intoxication.


A DUI conviction carries heavy penalties. You receive jail time. Even a misdemeanor charge can carry up to one year in jail. You must pay significant fines and other fees associated with your sentence. You will likely need to undergo substance abuse treatment.

You will face license suspension, though you may be able to get limited driving privileges so you can maintain your job. Often as part of having this limited privilege, the court will have you install, at your own expense, an ignition interlock device (IID). An IID requires the driver to submit a Breathalyzer test before starting the car. If the device detects alcohol in your system, the can will not start.

Repeated offenses will carry harsher penalties. You could have your driver's license revoked permanently and serve significant jail time.

Get Legal Help With Your DUI Today

The elements of a DUI offense can be difficult to figure out if you're not a legal professional. Before pleading guilty, it may be worth your while to see whether the prosecution can prove these elements. DUI tests are not above reproach. A skilled criminal defense attorney may be able to attack the chemical tests. If you've been arrested or charged with DUI, an experienced DUI defense attorney can help.

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  • Complex DUI situations usually require a lawyer
  • DUI defense attorneys can challenge Breathalyzer/Intoxilyzer or blood test results
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