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DUI/DWI

"Driving Under the Influence" (DUI) and "Driving While Intoxicated" (DWI) are two names for the crime of drunk driving. Other statutory names for this crime are "Operating Under the Influence" (OUI) and "Operating While Intoxicated" (OWI). The different names for the crime reflect differences in the state statutes that define the crime. However, all the statutes have the common purpose of punishing drunk driving and driving under the influence of illegal drugs.

The first element of the crime is "driving" or "operating." This language is designed to describe the level of control a person must have over the vehicle. In many states, the vehicle does not actually have to be moving, and a person sitting behind the wheel of a car, whether or not the engine is running, can be convicted of driving or operating the car. Likewise, courts have found that a person steering a car being towed by another car could be tried for the crime of drunk driving. While passengers are generally not considered drivers or operators of vehicles, they can be if they grab the steering wheel or try to take control of the vehicle.

The definition of "vehicle" is broader than "motor vehicle." A vehicle can be any device for transporting people or goods. A motor vehicle, by contrast, requires that the device be powered by a motor. These definitions encompass cars, trucks, motorcycles, and motor boats. A question can sometimes arise when the vehicle is inoperable and a distinction can be made between a vehicle that is immobile and inoperable. Another element of the crime is its location. Earlier statutes sometimes included explanatory phrases such as "on the public highways" which led courts to conclude the crime did not apply to persons who drove on private property, including parking lots. However, most statutes now simply require proof that the crime took place within the state.

The underlying purpose of the drunk-driving laws is to prevent operation of a powerful machine when a person is too intoxicated to have adequate control. The intoxication element is proven by one of two methods: (1) showing a certain level of blood alcohol or illegal drugs in the operator's system, or (2) showing the person was impaired. BAC is the method most often used. It does not rely on anyone's observations of the defendant's conduct, but rather on the results of a blood or breath test. A common statutory scheme requires a person suspected of being drunk or under the influence of drugs while driving to give a sample of their breath or blood for testing. This requirement is called implied consent. The statute provides that by operating a motor vehicle, the operator has given his or her consent to be tested. Once the sample is given, it is analyzed by a machine that measures the concentration of alcohol in a person's blood. The most common limit for blood-alcohol content is .08, however, the limit varies from jurisdiction to jurisdiction. In jurisdictions who employ the implied consent rule, any person who tests over the limit or has the presence of drugs is legally intoxicated. The only way to challenge the charge is to show there was some failure in the test procedure, such as a malfunctioning machine, improper sampling, foreign substances in the mouth (in the case of a breath test), or improper preservation of the evidence.

In contrast, proof of impairment may be based on the facts and circumstances surrounding the incident. It relies on eye-witness testimony, statements of the defendant, and circumstantial evidence. The actual amount of alcohol in a person's blood stream is irrelevant since the focus is on whether the ability to drive has been impaired. Standard police tests for impairment include having the defendant walk a straight line with one foot placed precisely in front of the other; closing the eyes and standing with arms held out from the body and touching the tip of the nose when instructed; reciting the alphabet; and counting backwards. Other signs of impairment are the officer's observations of the defendant's driving, which often leads to the stop. Driving too fast or too slowly, weaving from lane to lane, and going through stop signs have all been used as evidence to demonstrate impaired driving. A statement by a driver about how much he or she had to drink, and how recently, is also used as evidence of impairment when supported by testimony about the probable effects of that amount of alcohol ingested at that time on a person's physical abilities.

Punishment for drunk driving has become increasingly severe in the past twenty years. In earlier days, people convicted of drunk driving often faced little real punishment if they had not injured anyone or destroyed any property. However, modern laws typically provide for significant jail time and large fines for all offenders. First-time offenders may be given a "break," such as a suspended sentence conditioned on treatment for substance abuse or attendance at drunk-driving school. The penalty for second or subsequent offenses, however, often includes mandatory minimum jail or prison sentences that cannot be suspended or waived, and stiff fines. The punishment also usually includes revocation of driving privileges for a certain period of time, but it is important to note that the most severe restrictions on the offenders' driving privileges usually come from the state's administrative regulations, which are not considered part of the criminal sentence. In fact, many defendants have unsuccessfully attempted to argue that a suspension or revocation of their drivers' licenses by the administrative agency in addition to the criminal sentence is double punishment that is barred by the double jeopardy clause of the Constitution.

DUI/DWI FAQs

How serious is DUI/DWI?

DUI/DWI is a serious problem. Thousands of Americans are killed each year in DUI/DWI accidents. Although many of those accidents result in the death of the intoxicated party, a significant and unfortunate number involve the death of "innocent" parties who were in the wrong place at a time when someone chose to drive a car while impaired. DUI/DWI is dangerous for those individuals who choose to operate a car under the influence, and for those individuals who are on the road at the same time. In addition to the severe physical injuries that may result from a DUI/DWI accident, there are also serious emotional and mental scars that may never fully heal for both the offenders and their victims.

Is it "safer" to drink beer, wine, or hard liquor in excess?

Any type of alcohol is dangerous when consumed in excess. Different types of drinks contain different concentrations of alcohol, or what may be called "proofs." The proof rating is two times the alcohol concentration. Therefore, 200 proof liquor has a 100 percent alcohol concentration. Most hard liquors have a higher alcohol concentration than most wines, and most wines have a higher alcohol concentration than most beers, meaning that it may take fewer drinks containing hard liquor or fewer glasses of wine than beers to become intoxicated. However, the alcohol concentration of a drink is not everything. You also have to consider the size of the drink that you are consuming. Therefore, a shot glass of hard liquor, which is usually only about 1-1/2 ounces of alcohol, may end up having the same effect as one five-ounce glass of wine or one twelve-ounce beer.

Drinking any alcoholic beverage to excess is never a good idea. You may seriously injure yourself or others if you decide to operate a car. However, even if you decide not to drive, you may also suffer other physical injuries. Excessive alcohol consumption over a long period of time can cause damage to the kidneys, liver, heart, and brain. Excessive use of alcohol within a short period of time can also lead to death.

What is a blood alcohol content?

Blood alcohol content (BAC) or blood alcohol level (BAL) is a measure of how much ethanol is in your system. The ethanol level in your blood is a byproduct of the broken down alcohol that you consumed. BAC and BAL are measured in a scientific manner, which calculates the ratio of ethanol to blood within your system. Therefore, if you have a BAC of .15, you have .15 grams of ethanol per 100 millimeters of blood in your system. In most jurisdictions, if your BAC or BAL is above .10, and you are operating a car or other vehicle (including some machinery), you are breaking the law.

You may still be charged with DUI/DWI even if your BAC or BAL is under .08

Do I have to take a breath analyzer test?

A breath analyzer test measures a person's BAC or BAL. The amount of ethanol that is in your system is the same as the amount of ethanol that is "on" your breath when you exhale. As a result, police are able to test your BAC or BAL by having you breathe into a breath analyzer. Whether you are required to take the test depends on the law of the state you are in at the time you are pulled over. Under the law in some states, if you refuse to submit to a breath analyzer test or other similar test for measuring your BAC or BAL, such as a blood test, your license will automatically be suspended. If you are later found to have not been intoxicated or impaired, your license may still be suspended in some states as a result of your failure to cooperate.

Can I be charged with DUI/DWI for driving after taking drugs?

Yes. If you operate a car under the influence of drugs such as heroin, cocaine, marijuana, or any other illegal substance, you can be charged with a crime. In addition, it is not only illegal drugs that can get you into trouble. Many prescription medications and some over-the-counter medications carry with them specific warnings that they may impair abilities and should not be used while operating any motor vehicles. Check the labels on all medications carefully. Do not get behind the wheel if you are taking any medications that are incompatible with safe driving.

What will happen if I have more than one DUI/DWI conviction?

The consequences of multiple DUI/DWI convictions depend upon the state in which you received the convictions. In most jurisdictions, there is a "step-up" method for handling multiple DUI/DWI convictions for the same person. In some states, a person will be required to pay a fine and perhaps serve a minimum term of imprisonment for a first conviction, in addition to having their license suspended. For a second offense, some states may increase the fines and imprisonment or term of suspension. Additional offenses may result in driver's license revocation, incarceration, and the loss of driving privileges for life. Additionally, in some states, a judge may order that the offender participate in an alcohol or drug treatment and education program. Of course, if you seriously injure or kill another person while operating under the influence, you may face additional charges and civil lawsuits.

Are "alternative" penalties appropriate for DUI/DWI?

In many cases "alternative" penalties are allowed in DUI/DWI cases. A judge hearing your case may have discretion in deciding how you should be punished. In situations where you have seriously injured or killed another person, the judge may not have such discretion, but in first time offenses, or in less serious matters, a judge may be able to require you to perform community service, such as giving talks about the dangers of drunk driving. In other situations, a judge may require you to place a license plate on your vehicle or a mark on your driver's license that indicates that you have been convicted of DUI/DWI.

Should I get an attorney if I have been charged with DUI/DWI?

Although you are not required to have an attorney, it is advisable to retain a defense lawyer if you have been placed under arrest or charged with DUI/DWI. These laws are strictly enforced and an experienced DUI/DWI attorney can help protect your rights. Some states require that the police provide you with a list of local DUI/DWI defense attorneys. Your chances of successfully making defense arguments or finding mistakes that may have been made in your arrest are much greater if you have an attorney assisting you. If you are faced with a DUI/DWI charge, an attorney is your best bet for avoiding or reducing the penalties or imprisonment you face.

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