DUI Laws 101

Driving while intoxicated is a very serious driving offense. Some states refer to it as Driving While Intoxicated (DWI) or Operating Under the Influence (OUI), but most states refer to it as Driving Under the Influence (DUI).

Driving while intoxicated is a very serious driving offense. Some states refer to it as Driving While Intoxicated (DWI) or Operating Under the Influence (OUI), but most states refer to it as Driving Under the Influence (DUI). The more colloquial term “drunk driving” is a misnomer, because you don’t have to be drunk to be nailed for drunk driving.

DUI usually includes two stand-alone offenses:

  • driving under the influence of alcohol to the extent it impairs your physical and mental faculties, and
  • driving while you have a blood alcohol content of .08 or greater even though the alcohol has had no effect on you.

In the vast majority of DUI cases, both offenses are charged. The good news is that in the end, if you plead or are found guilty, you very likely will only be sentenced on one. The bad news is, of course, that it’s hard to win a DUI case when the prosecution has two shots at you.

First Offense Non-Injury DUI

A DUI that doesn’t result in injury or death (or substan­tial property damage in some states) is a misdemeanor in every state and is usually subject to the same maximum punish­ment — six months to a year in jail and fines up to and exceeding $1,000.

In fact, you can expect a far less harsh punishment. For example, a first conviction will usually result in two or three days in jail, if that. And commonly, the time you spend in jail as a result of your arrest will later count as credit for time served against a jail sentence if you later plead (or are found) guilty.

In exchange for the minimum jail sentence, you can expect to be placed on probation, often for three years and some­times longer. Informal probation means you don’t have to report to a probation officer but if you violate the terms of probation you can be brought back in and sentenced to a jail term. Importantly, it’s not uncommon for a probation condition to bar you from driving with any measurable blood alcohol content—which means you’ll be the designated driver for up to three years.

In addition to jail and probation, you can expect fines exceeding $1,000 and the cost of attending a mandatory DUI offender school (which also will typically cost up to $1,000), which means you may be looking at a minimum $2,000 financial penalty. Fortunately, all courts have systems allowing you to make installment payments on your fine and sometimes on your DUI school.

Your driver’s license will likely be suspended for up to a year, depending on your state, although you may be able to obtain a restricted license allowing you to drive to and from work or to obtain medical care. If you chose not to take the required chemical test (like a breathalyzer), your license will likely be suspended for at least as long as it would be if you are convicted of DUI, and sometimes longer.

If you drive while your license has been suspended for a DUI offense (unless it’s for a permitted purpose under a restricted license), you will face another serious charge, which quite likely will result in a jail term. 

Upon a DUI conviction, your insurance will likely skyrocket in cost, if it is not cancelled altogether, and this may make it difficult to reinstate your driving privileges because virtually all states won’t reinstate your driving privileges until you are legally insured. Also, after you have a DUI on your record, you will face significantly more serious consequences if you re-offend.

Learn more about DUI Charges and Penalties.

Second and Subsequent Offenses.

Punishment for second and third offenses within a specified period of time can be far more stringent than for first offenses. That specific time period of time varies considerably by state. In many states, it lasts from five to ten years, but in many other states, it lasts indefinitely. For the law in your state, see your state’s DUI page.

The theory behind a harsher punishment for a second or subsequent offense is that any of us can make that first mistake but there should be little or no leniency shown for subsequent violations. For example, your state may have a minimum sentence of anywhere from a week to a month or more in jail for a second offense and may even require you to do a stretch in state prison for a third or subsequent offense. In addition to significant time behind bars, your license will be suspended for a longer period of time than in first convictions, your fines will be much larger, the cost of your DUI offender school may be higher because you may be required to attend it for a longer period of time, and your insurance rates may become unaffordable.

Learn more about DUI Arrest and Arraignment.

Many Types of DUI Offenses

In addition to first and second offenses, there are many other types of DUIs. For example, if you are a minor (or in some states, on probation), you will likely be subject to a zero or low-tolerance statute, which means you can’t drive with more than .02 blood alcohol content, or in about half the states, with any measurable amount of alcohol in your blood. The same is true in some states if you have been previously convicted of a DUI. If your DUI is connected to an injury or death, then you likely will be faced with a felony prosecution. Many states also make driving with over .15 or .20 BAC a separate and more serious category of DUI. And then there are the second, third, and fourth offense DUIs, which can also result in felony prosecutions. If you’ve been charged with one of these serious types of DUIs, find a lawyer to help you.

Do You Need a Lawyer?

Unlike the other driving offenses, defending a DUI charge usually requires a lawyer because the consequences of a DUI conviction are so serious. If you want to fight the case all the way through a trial, you should represent yourself only if you absolutely have no access to legal representation. On the other hand, you could save thousands of dollars in attorneys fees if the almost certain course of your particular case—like the vast majority of DUI cases—will result in a guilty plea and a standard sentence.

If you face a DUI charge you first need to figure out 1) whether fighting the charge in your case would likely result in a successful outcome, and 2) whether you can handle the case yourself in the course of entering a plea or arranging a plea bargain.

Serious charges require an attorney’s help. Second and subsequent DUI charges, juvenile DUI, DUI charges that involve injury or death, and DUIs in which you had a very high blood alcohol content can result in a substantially more serious punishment, and the laws concerning these more serious DUI offenses vary enormously from state to state. If your situation fits one of these more serious categories, talk to a lawyer. To get a brief list of these increased penalties for your state, visit www.ncdd.com.

Excerpted and adapted from Beat Your Ticket: Go to Court & Win, by David W. Brown (Nolo).