DUI Law

Authored by Wendy Witt, Esq.

How long will a DUI stay on your driving record? Forever.

If you've been arrested for DUI, your entire future is at stake. It's serious. If convicted, you could be put in jail, fined, fired from your job, have your immigration status questioned, and lose your car, driver's license, professional licensure, and social stature. You could be forced to participate in rehabilitation or attend DUI school and miss work.

In addition, if you hurt or kill someone, or damage their property, you will likely be sued and may lose your house and assets. Your car insurance rates will increase.

Below, we present a general overview of DUI law, but if you or a loved one has been arrested for DUI or DWI, it may be in your best interests to consult with a qualified DUI criminal defense attorney for advice regarding your individual situation.

Driving Under The Influence of Alcohol or Drugs

If you drive unsafely, cause an accident, or enter a road block, the police may test to determine whether you are too impaired to drive safely.

You can be convicted of DUI even if you haven't been drinking alcohol. If recreational or prescription drugs impair your ability to drive safely, you can be convicted of DUI.

The incidence of car accidents and injury increases substantially, even after just one drink, so the laws are strict.

For example,

  • In all states and the District of Columbia, if you are caught with a .08% blood alcohol content (BAC) or higher, you are legally driving drunk, no matter your level of individual impairment.

This is called "per se DUI." "Per se" means "the thing (i.e. BAC) speaks for itself."

  • If you drive unsafely, you can legally be arrested for DUI or DWI, even if your BAC hasn't reached the .08% level.
  • You may be charged with "aggravated" DUI if you drive with minors in your vehicle, have been convicted of DUI previously, drive at a very high speed, drive with a suspended or revoked driver's license, or have an extremely high BAC.

A BAC of two or three times the .08% limit falls into the aggravated DUI range and penalties are severely stiffened.

  • There is "zero" tolerance for drivers under that age of 21, meaning it is illegal for anyone under the age of 21 to have alcohol is his or her system while driving. Typically, the BAC is restricted to 0.01% to 0.05% for those under 21.

Blood Alcohol Limit - Blood Alcohol Content (BAC)

In all 50 states plus Washington DC, if you are driving with a blood alcohol content (BAC) of .08% or above, you are guilty of drunk driving per se. Per se means that even if your driving is not impaired, you're still guilty.

There are exceptions to the .08% rule and the details vary from state to state:

  • Underage drivers have lower BAC limits. The BAC limit for "minors" is usually .02% or .00% (zero tolerance).
  • School bus drivers and commercial drivers often have lower allowable BAC limits.
    • School bus drivers (driving a school bus) are guilty of DUI if their BAC reaches either .02% or .04%, depending on state law.
    • Commercial drivers (driving a commercial vehicle) are typically drunk driving with a BAC of .04% or more.

No matter your BAC, if you are driving unsafely and you've been drinking (or using drugs), you can be arrested and convicted of DUI.

Consequences of a DUI Conviction

We know how easily it happens. A couple drinks watching the games with the guys, happy hour with coworkers, or even a family backyard barbecue. One error in judgment and your life is turned topsy-turvy. An arrest for DUI or DWI is scary and the consequences are serious.

Consequences are not the same as penalties. Consequences are not doled out by the court; but, they often occur in the aftermath of a DUI conviction.

The common consequences of a DUI conviction include:

  • Job loss
  • Family discord
  • Embarrassment
  • Loss of professional and/or community reputation
  • Increased auto insurance rates
  • Loss of professional license
  • Difficulty getting a job
  • Difficulty renting an apartment

Drunk Driving Penalties

Some states have mandatory jail time for a first DUI conviction and others do not - in addition, the length of potential jail time varies greatly, depending on state law.

If you hurt someone or damage property, you can be subject to both criminal DUI penalties as well as a civil law suit.

  • If you lose a civil suit for wrongful death, injuring someone, and/or causing property damage, you will have to pay money to the injured persons - as a way of compensating them for their injuries.
  • Criminal penalties can include jail, fines, alcohol abuse exam, DUI school, suspension of driver's license, suspension of commercial license, and ignition interlock.

In addition, the personal and professional fallout such as job loss, loss of reputation in the community, loss of professional license, and family and financial stress are harsh.

Defending a DUI

As with any criminal charge, a DUI arrest doesn't mean that you'll be convicted. Though most people don't realize it, you can defend against drunk driving charges, even to per se DUI.

While BAC testing and a .08% BAC level may sound conclusive, it's not. Errors can be made and false positives are sometimes found.

Be sure to let your DUI defense attorney know:

  • How much you had to drink and eat - and when.
  • Any medical conditions you may have and medications you may be taken.
  • Of any recent dental work.

There can be other problems with your DUI arrest and the collection of evidence, so let your DUI defense lawyer know:

  • How the police officer came to stop you.
  • What the officer said.
  • How any BAC and field sobriety tests were administered?

It's a good idea to take notes on a piece of paper or on your phone so you can remember all the details. Being pulled over and arrested is a stressful situation and you are likely to forget some things.

In addition, be sure to answer all of your DUI attorney's questions and disclose everything - even if you think it makes you look bad. That little embarrassing fact may be just the thing that gets you off the hook, getting the DUI charges reduced or dropped or helping the jury to find you innocent.

Only your attorney knows whether any or all of these common defenses would apply in your case:

If you are found guilty - your DUI attorney will seek to get you a sentence on the low end of the scale.

No Driving Defense

  • You were not driving
  • Was your car lawfully parked?
  • Did the arresting officer actually observe you driving or have first-hand knowledge of the person who was?
  • Can a reliable witness establish your car had moved within 3 hours of Breathalyzer or blood test?

Illegal Stop

  • The police officer didn't have the right to stop you.
  • The officer lacked probable cause to stop you; therefore, both the stop and subsequent testing were unlawful.

Test Administration Errors

  • Maybe the administration of a field sobriety test or the Breathalyzer was flawed.
  • Your BAC (blood alcohol content) was not above allowable limits at the time you were driving.
  • The officer didn't make you aware of the legal consequences of both taking and refusing the Breathalyzer.
  • The officer misjudged your levels of intoxication.

Faulty Equipment

  • The Breathalyzer device could have been faulty and no back-up independent test was administered.

Right to Represent Yourself in DUI Case

You have seen it on television. You do have the right to represent yourself in court - there is no legal requirement to have an attorney represent you.

  • Representing yourself is called "pro se".
  • The U.S. Constitution guarantees that right in the 6th and 14th Amendments.
  • The court will allow you to proceed pro se, even to your detriment.
  • Unless you are mentally incapable of doing so.

Related topics

More articles about dui

  • DUI Glossary

    Understanding DUI terms police, prosecutors and courts use can help your defense.

  • Defenses to Drunk Driving

    Carefully review our in-depth guide to your DUI defense - we break down the most successful defenses.

  • What You Tell Your DUI Defense Lawyer

    Disclose absolutely everything to your attorney and if there is any doubt, disclose that too - here’s why.

  • Why You Must Hire a DUI Attorney

    Just one DUI conviction can cost you tens of thousands of dollars.

  • Penalties for a DUI Conviction

    Penalties typically depend on three factors - where you live, your criminal history and other mitigating or aggravating circumstances. Many offenders face more than just fines if convicted.

Get informed

Be prepared to work with an attorney with our free bankruptcy guides.

Browse comprehensive profiles from top licensed attorneys and law firms.