Is DUI a Criminal Offense or a Traffic Violation?

By Balrina Ahluwalia, Esq. | Legally reviewed by Laura Temme, Esq. | Last updated June 26, 2025

Legally Reviewed

This article has been written and reviewed for legal accuracy, clarity, and style by FindLaw’s team of legal writers and attorneys and in accordance with our editorial standards.

Fact-Checked

The last updated date refers to the last time this article was reviewed by FindLaw or one of our contributing authors. We make every effort to keep our articles updated. For information regarding a specific legal issue affecting you, please contact an attorney in your area.

As many know, driving while intoxicated/impaired (DWI) and driving under the influence (DUI) incidents frequently begin as traffic stops. They can also stem from accidents or law enforcement checkpoints. You might wonder whether a DUI/DWI is a criminal offense or a traffic violation. While the answer very much depends on the circumstances, as well as state law, it can often be both.

In this article, we’ll explore some of the factors involved in how a DUI/DWI is classified. We’ll also answer some common questions related to these charges.

If you’re facing a DUI/DWI, consider speaking with a criminal defense attorney licensed in your state. They can help you understand the full range of options available to you. Depending on your situation, they may also be able to plea down your charges or even get them expunged.

DUI Crimes vs. Traffic Infractions

A DUI/DWI occurs while operating a vehicle. So, it’s inherently a traffic-related offense. But a DUI/DWI is usually more than just a traffic ticket.

In the United States, it’s generally considered a criminal offense as well. It becomes a criminal matter once law enforcement determines the driver was impaired, and criminal charges are filed.

Some jurisdictions, like New Jersey, will often treat first-time DWIs as a traffic infraction, not a criminal one. Others typically charge first-time DUIs as a misdemeanor, which is a lower-level crime. However, if someone has multiple DUI offenses, causes an accident, or hurts someone while driving under the influence, the charge can become a felony.

Is Refusing a Breathalyzer Test a Crime?

It depends on state laws and when the refusal happens. While refusing a breathalyzer test is legally allowed in every U.S. state, you can face consequences for doing so.

If police suspect impairment, they may conduct field sobriety tests for coordination, balance, and cognitive function. If the suspicion continues, law enforcement may request chemical testing, such as a breathalyzer or blood/urine test.

All states have implied consent laws. These laws essentially create an agreement that drivers consent to submit to chemical testing (breath, blood, or urine) if lawfully arrested for a DWI/DUI. Refusing a test after an arrest violates this agreement.

Pre-Arrest Refusal

You can usually refuse a roadside breathalyzer without a criminal penalty. However, if you show other signs of impairment, this could lead to immediate arrest.

Post-Arrest Refusal

Refusing a breathalyzer after arrest typically triggers automatic license suspension and may result in criminal charges. The specific consequences will depend on the state’s implied consent laws.

Will a DUI/DWI Show Up on My Driving Record?

Generally, yes. Even as criminal charges, a DUI/DWI can still appear as a traffic offense on your driving record. This means that background checks that include driving records from states’ departments of motor vehicles (DMVs) will likely contain information about the incident.

Will a DUI/DWI Show Up on My Criminal Record?

Yes, a criminal DUI/DWI offense will generally appear on a criminal background check as well. Criminal background checks may affect things like your employment and housing applications.

Since a DUI appears on both types of records, it’s a good idea to get legal advice about how to fight the charges and ideally prevent a conviction.

What Are the Criminal Charges for a DUI/DWI?

Drunk driving and impaired driving charges can fall into several categories. The most common types of criminal charges someone might face include:

• Misdemeanor DUI/DWI: Most common for first-time offenders with a BAC (blood alcohol content) at or just above the legal limit (usually 0.08%) and no injuries or property damage
• Aggravated DUI/DWI: Usually involves serious factors like high BAC levels (e.g., 0.15%+), driving with a child in the car, or driving on a suspended license and can still be a misdemeanor or a felony
• Felony DUI/DWI: Often for multiple prior convictions, incidents that cause serious injury or death, or for people who’ve committed other serious violations
• Underage or “Zero Tolerance” DWI/DUI: Usually charged as misdemeanor first offenses because most states have laws allowing charges for any measurable amount of alcohol in the system of underage drivers
• Driving under the influence of drugs (DUID): Includes impairment from illegal drugs, prescription medications, or even over-the-counter substances

The seriousness of the charges will depend on state DWI/DUI laws and several key factors. Each state has its own rules, but the most common reasons a DUI is treated more seriously include:

• Driver’s BAC level
• Injury/property damage
• Lack of cooperation with police officers during the DWI/DUI arrest
• Aggravating factors
• Prior convictions

Many of these factors can also impact the penalties imposed.

What Are the Penalties for DWI/DUI?

A DUI/DWI criminal conviction can lead to a wide range of penalties, depending on state law. For first offenses, you might face some combination of court-ordered:

• Drug/alcohol education programs
• Jail time
• Fines
• Driver’s license suspension
• Community service

Some states also require you to install an ignition interlock device in your car, which checks your breath for alcohol before starting.

If the driver’s blood alcohol content (BAC) was very high or if someone was hurt, the penalties can be worse. Repeat offenses often lead to longer jail time, higher fines, revocation of driving privileges, and even felony charges.

As a practical matter, a DUI/DWI conviction can also affect job opportunities, raise car insurance rates, and limit travel to some countries.

Do DWI/DUI Arrests Always Mean Convictions?

No. A DUI/DWI arrest doesn’t always lead to a conviction. While an arrest can be scary, you might be able to avoid a conviction for several reasons:

Successful Legal Defenses

An experienced DWI/DUI defense attorney might be able to challenge:

• The legality of the traffic stop
• Field sobriety or breathalyzer test accuracy
• Law enforcement’s observations or procedures

The court may also dismiss the charges if it finds the evidence inadmissible or insufficient.

If the charges were dismissed or you were found not guilty, you may be able to seal or expunge the record, depending on your state’s laws. This means to hide or erase it from the public record, so it’s generally an extremely appealing option if you’re eligible. However, not all states allow expungement and sealing of DUI/DWI records.

Pretrial Diversion or Deferred Judgment

Some states offer first-time offender programs that allow charges to be dismissed after completing treatment or education programs. These programs often require no subsequent DUI/DWIs and full compliance with court orders.

Dropped/Reduced Charges

Prosecutors may decide not to file charges if the evidence is weak or improperly obtained. Charges can also be reduced from DUI to reckless driving through plea bargaining.

Can I Negotiate My DUI/DWI Charge Down to Reckless Driving?

In many states, yes. It may be possible to negotiate a DWI/DUI charge down to reckless driving involving alcohol or drugs. This is sometimes referred to as a “wet reckless” plea deal.

One of the most appealing aspects of these deals is that you avoid a DWI/DUI conviction on your criminal record. Wet reckless plea deals aren’t available in all states. Still, most jurisdictions allow some form of plea bargaining in DWI/DUI cases.

A skilled attorney may negotiate this or another plea bargain with the prosecutor to reduce your DWI/DUI charge. This could be an option if:

• The driver has no prior DWI/DUI offenses
• Their blood alcohol concentration BAC was close to the legal limit (e.g., just over 0.08%)
• There were no aggravating factors (e.g., injuries)
• The driver cooperated with law enforcement

State laws limiting plea deals for DWI/DUI charges can vary greatly.

Getting Legal Advice

It’s best to discuss the specifics surrounding your situation with a qualified DWI/DUI attorney licensed in your state. You can confidentially share the details with them. They can explain your various options, including your eligibility for expungement.

How you proceed at this time can have a lasting impact on your life. There will likely be several negotiable aspects of your charges and penalties. So, you’ll want to make informed decisions.

FindLaw’s dedicated directory of criminal defense lawyers and DUI/DWI attorneys can connect you with local experts. When you click on your state, then city, you’ll see ratings and contact information for legal advisors in your area.

If you’re not dealing with criminal charges, you may still want to identify a traffic violation attorney who can assist. FindLaw’s directory of traffic attorneys is a good place to start.

Give yourself the peace of mind that comes with legal guidance. Enlist the help of a trusted advocate who just might be your most important ally as you move forward.