Overview of Drunk Driving Offenses in the United States
Each state has laws making it illegal to drive a motor vehicle while under the influence of alcohol or drugs. Drunk driving may be known as the crime of driving while intoxicated (DWI), operating a motor vehicle under the influence (OUI), or driving under the influence (DUI). Regardless of the name used, drunk driving is a criminal offense that carries severe penalties, even for first-time offenders.
In 1984, Congress passed a law requiring all states to raise the legal drinking age for possession and purchase of alcohol to 21 years old. Almost all states have made the blood alcohol content (BAC) limit 0.08% as well. Drivers with a BAC at or above the limit are presumed to be impaired. Only Utah, at 0.05%, has a lower BAC limit.
Some types of drivers have lower BAC limits. Licensed commercial vehicle drivers can be arrested and charged with a commercial DUI with a BAC of 0.04% or higher. A commercial driver may have their license suspended for a year for a commercial DUI. A second offense could result in a lifetime CDL ban.
Most states have a zero-tolerance policy for underage drinking and driving for anyone younger than 21. Most states consider underage drivers impaired with a BAC of 0.01% or 0.02%. For a lower BAC, they may have their license suspended. If the under-21 driver has a BAC of 0.08% or higher, however, they may face standard criminal drunk driving charges.
Prior to making an arrest on suspicion of drunk driving, a police officer must have reasonable suspicion to stop a vehicle. That means the officer needs some identifiable reason for making the stop, including unsafe driving or even a minor traffic violation. Common reasons for stopping drivers include:
- Running a red light or stop sign
- Improper lane change
- No headlights on at night
- Broken taillight
- Missing license plates
Additionally, there are other examples of erratic driving that may lead an officer to initiate a DUI stop. These include a driver:
- Making wide turns
- Straddling painted lines
- Weaving or swerving
- Striking or almost striking other vehicles
- Driving on the wrong side of the road
- Braking erratically
Once the police make a traffic stop, they will examine the driver for other signs of alcohol consumption. A drunk driver may have the smell of alcohol on their breath, an open container in the vehicle, slurred speech, or even admit to having a couple of beers with dinner. The police officer can also try to gather field evidence of impairment, like getting the driver to submit to a field sobriety test or a Breathalyzer.
There is an exception to the reasonable suspicion requirement for traffic stops. In states that use sobriety checkpoints, police can set up drunk driving safety checks to randomly stop drivers briefly to look for impaired drivers or other safety violations.
Most police departments train officers on the use of standardized field sobriety tests (SFSTs). These tests are supposed to evaluate if a driver is impaired by alcohol or drugs. The police claim these tests are accurate, but they can be unreliable. Sober drivers can "fail" these tests for medical reasons or because of a health condition, and some impaired drivers can "pass" the tests, even with a BAC that is over the limit. The three standardized tests include:
- Walk-and-turn test
- One-leg-stand test
- Horizontal gaze nystagmus (HGN) test (following a moving object)
The police may also use other non-standardized tests, like the nose-touch test. In general, these tests are not mandatory, and drivers can refuse to perform them, even if the police officer makes it seem like they should cooperate or they'll go to jail. Based on the results of these tests, the police may find they have probable cause to make an arrest. However, the police can still arrest a driver for drunk driving even without these tests.
The police may also ask the driver for a preliminary breath sample using a breathalyzer. In general, these roadside breath tests are not mandatory, and drivers can refuse them without penalty. However, some drivers, including under-21 drivers and drivers on probation for a DUI, may have to take these tests.
Preliminary breath tests are not the same as breath testing equipment at the police station. Under your state's implied consent laws, you may have to submit to a breath test or blood draw for chemical testing after being arrested and taken to the police station. By having a driver's license, you automatically consent to chemical testing. Refusing to submit to this test can result in a suspended license. Refusing a chemical test can also be used against you in court, and you could still be convicted anyway.
Drunk driving laws and the penalties for a conviction can be severe. Even if you have no prior criminal record and your BAC was just at or over the limit, criminal penalties for first-time DWI or DUI offenders can include:
- Spending a minimum number of days in jail
- Having your driver's license suspended
- Going on probation
- Using an ignition interlock device (IID)
- Paying fines and performing community service
- Undergoing alcohol education or alcohol abuse treatment
- Having your vehicle impounded
There may be increased penalties for an aggravated DUI as well, which, depending on your state's laws, may occur when you have a high BAC, drive drunk with a child passenger in the vehicle, or engage in reckless drunk driving. Causing a crash while drunk could be charged as a felony. Killing someone in a drunk driving accident could lead to a felony vehicular manslaughter charge.
In most states, a drunk driving arrest can lead to an administrative license suspension (ALS) by the motor vehicle department. That could mean having to challenge both the administrative suspension and the criminal charges to avoid having your driving privileges taken away. There is typically a shorter deadline for challenging an administrative license suspension, so you should contact your criminal defense attorney as soon as possible after a drunk driving arrest.
An arrest for drunk driving does not have to result in a permanent criminal record. There may be a strong defense available to challenge the prosecutor's case and avoid a criminal conviction. Common legal defenses include challenging the lawfulness of the traffic stop, the reliability of field sobriety tests, and the accuracy of chemical testing.
Your lawyer may also be able to use the strengths of your case to negotiate a plea bargain. A plea deal may help you avoid jail time, have your criminal charge reduced, or gain access to a diversion program. Talk to your criminal defense lawyer for advice on how to handle your case.