DUI/DWI Newsletter

"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.

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, and motor boats. A question can sometimes arise when the vehicle is inoperable and a distinction is made between the vehicle's being merely immobile and being 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 basic thrust of the drunk-driving laws is that they are to prevent operation of a powerful machine when a person is too intoxicated to have adequate control of the machine. The intoxication element is proved by one of two methods: (1) showing a certain level of blood alcohol or illegal drugs, or (2) showing the person was impaired. The first method is the one 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 drugged while driving to give a sample of their breath or blood for testing. This so-called implied consent comes about because the statute provides for it whenever a person gets a driver's license. 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 .10 percent, although in recent years there has been a push to lower that limit to .08 percent. Any person who tests over the limit 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 of impairment. 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 in California 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 or prison 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

Is DUI/DWI really a big problem, or is it all just hype?

DUI/DWI is a very, very 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 had the awful luck of being in the wrong place at a time when someone chose to drive a car while impaired. It is not all hype, or a big deal created by party-poopers and wimps. DUI/DWI is very dangerous, both for those individuals who choose to operate a car under the influence, and those individuals whom they hurt or kill. In addition to the severe physical injuries that may result in a DUI/DWI accident, there are also serious emotional and mental scars that may never fully heal for both the offenders and the victims.

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

None of them. 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, a 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 "less" hard liquor and wine 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 having. 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.

However, drinking any alcoholic beverage to excess is never a good idea. Not only may you seriously injure yourself or others if you decide to operate a car after drinking excessively, you may also suffer other physical injuries, whether or not you decide to operate a motor vehicle. Excessive alcohol consumption can cause damage to the kidneys, liver, heart, and brain. In addition, excessive use of alcohol within a short period of time can lead to death.

What is a blood alcohol content?

A 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 that calculates the ratio of ethanol to blood within your system. Therefore, if you have a BAC of .15, that really means that 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 dangerous machinery), you have broken the law.

• * If your BAC or BAL is below .10, that does not mean that you are necessarily capable of operating a car. Every person's ability to tolerate alcohol is different. You may still be charged with DUI/DWI if your BAC or BAL is under .10 if you have exhibited other signs that you are unable to safely operate a car.

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 and inhale. 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 in the state you are in at the time. 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 can 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 dangerous equipment, including motor vehicles. Check the labels on all medications carefully. Don't 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?

Again, what will happen to you depends upon what state you are in. 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 revocation of a license and the loss of driving privileges for life. In addition, 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 or lawsuits.

Are "alternative" penalties okay 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 leeway, but in first time offenses, or in less serious matters, a judge may be able to require you to perform community service in the nature of 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 a DUI attorney if I have been charged with DUI/DWI?

Although you are not required to have an attorney, it is a good idea to retain one if you have been placed under arrest, or charged with DUI/DWI, particularly if you have seriously injured or killed another person. DUI/DWI laws are strictly enforced. While there may be some arguments that you can make in your defense, or mistakes that were made by the police, your chance of successfully making those arguments or finding those mistakes is much greater if you have an attorney assisting you sooner, rather than later. Invoke your right to remain silent, and ask to speak to an attorney. If you are faced a DUI/DWI charge, an attorney may be your only hope for avoiding or reducing any penalties or imprisonment you face.