What You Need to Know About Drunk Driving Charges

By Andrew Leonatti | Reviewed by John Devendorf, Esq.

Last updated March 7, 2023

A drunk driving arrest is many people’s first exposure to the criminal justice system. An arrest is a scary experience but making sure you know how to navigate the system will impact how your case is resolved.

Drunk driving laws are different in every state and local criminal courts have special rules for impaired driving cases. It is important to talk to a drunk driving defense attorney in your area to understand your legal options after a DUI arrest.

When Is a Driver Drunk?

The definition of drunk driving is left up to each individual state, which decides what a driver’s blood alcohol content (BAC) has to be to safely operate a motor vehicle. In every state but Utah, the BAC level is set at 0.08%. Utah has lowered the DUI limit to 0.05%

Many states also have lower levels of permissible blood alcohol concentration for certain classes of motorists. For example, many states have limits as low as 0.04% for commercial vehicles and even lower limits for drivers under the legal drinking age of 21. Some states have zero-tolerance policies for underage drinking and driving.

The amount of alcohol it takes for a driver to be over the legal blood alcohol level is different for every person. Many states also have enhanced drunk driving laws, which allow for harsher penalties if your BAC is, for example, double the legal limit.

What Are the Penalties for Drunk Driving?

While most states now consider driving with a BAC of 0.08% to be driving drunk, penalties for a drunk driving conviction vary widely. However, in nearly all states, a conviction on a first-offense charge for driving under the influence (DUI), driving while intoxicated (DWI), or operating under the influence (OUI), includes some combination of:

Jail time ranging from a few days to several months or a few years
Fees for court costs and fines
Driver’s license suspension or license revocation
Mandatory classes on the dangers of drunk driving
Usage of an ignition interlock device (IID) to drive
Court-ordered alcohol rehabilitation
DUI school and counseling
Commercial drivers can lose their commercial driver license (CDL)

If you are ever arrested and convicted for alcohol-impaired driving more than once, each conviction will likely come with worse penalties for repeat offenders. The penalties will also increase in severity if you cause an accident with injuries or fatalities.

Getting Through the Drunk Driving Stop

Even the calmest person can have a tough time maintaining their composure during a drunk driving stop. The flashing lights in your rearview mirror, the cop’s flashlight, and the questions can be tough to process.

But it’s important to remember that you have the same rights as people in other arrest situations:

You have the right to remain silent
You have the right to refuse a search of your car
You have the right to refuse to take roadside sobriety tests (which could include walking a line, reciting the alphabet, breathing into a portable breath-testing device)

However, if you refuse any of the above sobriety test requests, it’s important to know that law enforcement may still arrest you for alcohol-related impairment if they have probable cause that you are under the influence of alcohol.

Probable Cause for the Stop

Police will stop you if they have probable cause to believe that you might be intoxicated or under the influence of a controlled substance. The National Highway Traffic Safety Administration (NHTSA) has developed a list of cues that might indicate that someone is driving while impaired. That list includes:

Taking a turn too wide
Straddling or crossing lane lines
Weaving and swerving
Striking or almost striking another vehicle
Braking too quickly
Speeding
Running red lights or stop signs

If an officer stops you for an unrelated traffic violation such as speeding, you may end up with a drunk driving charge. This could result from the officer observing the smell of alcoholic beverages coming from the car or on your breath, slurred speech, or bloodshot eyes which may also provide probable cause for a drunk driving evaluation.

Some states also have laws that allow law enforcement officers to set up roadside sobriety checkpoints where they can stop any vehicle. In some cases, those DUI checkpoints may also have judges on hand to sign search warrants to allow vehicle searches. In this situation, you still have the right to refuse to answer questions but it may lead to an arrest.

Chemical Tests and Breath Tests

The police officer will generally make the driver submit to chemical testing to use as evidence in the court case against the driver. The police can administer a breath test or blood test for the presence of alcohol. Every state now has an “implied consent” law that makes taking the chemical tests mandatory. You can refuse to take the alcohol test, but that may mean you face an automatic penalty such as a DMV driver’s license suspension.

Do You Need a Lawyer for a DUI?

As soon as you have the chance to make a phone call, your first call should be to a lawyer who has experience handling cases for drunk drivers. You may not realize it at the time, but there may be several options for mounting a defense against the DUI charges, such as a lack of probable cause or police not getting your permission to search your vehicle.

The potential penalties for a DUI conviction are too high to simply plead guilty to “put it behind you” without talking to an attorney first. An attorney will put you in the best position to minimize any damage from an arrest and may be able to negotiate for reduced charges.