{"id":286719,"date":"2016-04-04T10:45:08","date_gmt":"2016-04-04T15:45:08","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-law\/dui\/charges\/elements-of-a-dui-offense.html"},"modified":"2023-08-24T09:08:57","modified_gmt":"2023-08-24T14:08:57","slug":"elements-of-a-dui-offense","status":"publish","type":"page","link":"https:\/\/www.findlaw.com\/dui\/charges\/elements-of-a-dui-offense.html","title":{"rendered":"Elements of a DUI Offense"},"content":{"rendered":"\n
\n

Elements of a DUI Offense<\/h1>\n\n
\n
\n By Amy Vandervort-Clark, J.D.<\/a> | Legally reviewed by Melissa Bender, Esq.<\/a>\n | Last updated\n
\n \n <\/i>\n Legally Reviewed\n <\/summary>\n\n
\n

This article has been written and reviewed for legal accuracy, clarity, and style by FindLaw\u2019s team of legal writers and attorneys<\/a> and in accordance with our editorial standards<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n\n

\n \n <\/i>\n Fact-Checked\n <\/summary>\n\n
\n

The last updated date refers to the last time this article was reviewed by FindLaw or one of our contributing authors<\/a>. 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<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n<\/section>\n\n\n

\n
\n
\n

Key Takeaways<\/h2>\n

To convict someone of a DUI offense, a prosecutor must prove all elements of the crime. These elements are similar in every state, but the details of state laws vary. The basic elements of a DUI include the physical control or operation of a vehicle and illegal intoxication.<\/p>\n\n <\/div>\n <\/div>\n<\/div>\n\n\n

Driving under the influence of drugs or alcohol can be deadly. It’s a crime in every state. Yet, driving while impaired remains a significant problem in the United States.<\/p>\n

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\u00a0might be called\u00a0“driving while intoxicated” (DWI), “operating under the influence” (OUI), or “operating while intoxicated” (OWI). Even so, there are many common elements and overlapping definitions.<\/p>\n

Here’s a broad overview of DUI definitions and what authorities must generally prove to convict a driver of a DUI. If you face DUI charges, you’ll want to consult a criminal defense lawyer<\/a> for help.\u00a0<\/p>\n

Definition of Driving Under the Influence<\/h2>\n

Most\u00a0state laws<\/a>\u00a0define 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\u00a0blood alcohol concentration (BAC)<\/a>\u00a0or may ask for blood or urine samples to test for intoxicants or drugs.<\/p>\n

Newer statutes also provide for a “per se offense<\/a>.” 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.<\/p>\n

Elements of a DUI Charge<\/h2>\n

Elements make up all criminal laws. Each element needs proving beyond a reasonable doubt for a conviction.<\/p>\n

Intoxication is not limited to excess alcohol consumption. Any\u00a0intoxicating substance, legal or illegal<\/a>, can lead to a charge. Driving under the influence may also go by different terms depending on your state. Some states call it \u201cdriving while intoxicated.” Others use \u201coperating under the influence” or \u201cwhile intoxicated.” But the criminal law elements around a DUI charge are very similar.<\/p>\n

Driving or Physical Control of a Vehicle<\/h3>\n

Several state DUI laws include that a person needs to be in \u201cactual 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.<\/p>\n

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.<\/p>\n

Other states use the term \u201coperating 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 \u201coperating” much more broadly to include more than actual driving.<\/p>\n

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:<\/p>\n