Driving Under the Influence

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Driving Under the Influence

Sections within this essay:

Background
Elements of the Offense
Driving
Field Sobriety Tests and Sobriety Checkpoints
Felony Drunk Driving
Defenses
Sentences
State Drunk Driving Laws
Additional Resources
Organizations
Mothers Against Drunk Driving (MADD)
National Conference of State Legislatures

Background

Drunk driving constitutes the most commonly committed crime in the United States. State laws, most of which define this crime as "driving while intoxicated" (DWI) or "driving under the influence" (DUI), have progressively become more unforgiving over the past 20 years. Several groups, such as Mothers Against Drunk Driving (MADD), have fought with considerable success to modify drunk driving laws.

All states have amended their statutes so that a person is considered under the influence or intoxicated when the person's blood-alcohol concentration (BAC) is above .08 percent. Moreover, sentences for drunk driving have become progressive harsher, as state legislatures have sought to deter the practice of drunk driving. Although sentences and penalties vary among different states and different courts, a person convicted of driving drunk may face any of the following:

  • A fine of $1000 or more
  • Probation
  • Revocation or suspension of the offender's driver's license
  • Impoundment of the offender's car or the installation of special locks on the offender's car
  • Special classes regarding drunk driving or alcoholism
  • Mandatory jail sentence

Elements of the Offense

Most state laws define crimes of drunk driving as follows: driving a motor vehicle on a road or highway while under the influence of alcohol. Newer statutes also provide for a per se offense, which a person commits when driving a motor vehicle on a road or highway with a blood-alcohol concentration of .08 percent.

Driving

Several state statutes require that a defendant was driving a vehicle in order to be convicted of a drunk driving offense. Other states use the terms operating a vehicle or being in physical control of the vehicle. These terms are not normally synonymous, and so it is important to determine how an individual state defines the term in the statute.

A number of issues may arise that relate to the "driving" element of a drunk driving offense. For instance, a person may be in a car but has not turned on the ignition. The question in some cases is whether the person was driving or operating a vehicle or whether the person was using the vehicle as a temporary shelter. Courts in various jurisdictions have identified several factors that may be used to determine whether someone has been driving a vehicle. Some of these include the following:

Field evidence may fall into one of five categories, including the following:

  • Testimony regarding the defendant's unusual driving
  • Testimony regarding the defendant's conduct or physical appearance
  • Incriminating statements made by the defendant
  • Testimony regarding the defendant's performance during a field sobriety test
  • Tapes, film, and/or photographs taken at the scene where the defendant was driving and/or arrested

Police officers will often look at the defendant's physical appearance and symptoms of drunk driving in order to determine whether the defendant is intoxicated. The following are some of the more common symptoms of intoxication:

  • The defendant's clothes are disheveled
  • The defendant has not shaved or combed his or her hair
  • The defendant's eyes appear to be red, glassy, or bloodshot
  • The defendant's face appears to be flushed
  • The defendant's breath smells like alcohol
  • The defendant's speech is thick and slurred

The defendant's BAC level will be determined through one of three methods. The most common of these methods involves an analysis of the defendant's breath. Other tests analyze the blood or urine of the defendant. Refinements in the methods by which a defendant's BAC is determined have strengthened the ability of prosecutors to prove this BAC. However, these tests are not above reproach, and skilled defense attorneys can often successfully attack the methods by which the defendant's BAC was analyzed.

Field Sobriety Tests and Sobriety Checkpoints

Researchers have developed a variety of tests that are designed to determine whether a person is likely to be intoxicated. A police officer performs these tests on suspects after the officer has stopped a person on suspicion of drunk driving. These tests allow an officer to observe a suspect's balance, physical ability, attention level, or other factors that the officer may use to determine whether the suspect is impaired. Officers often record a suspect's performance of these tests, and this practice generally has been upheld on appeal.

In several states, authorities have set up checkpoints where officers can question drivers in an effort to catch drunk drivers. These checkpoints are often set up during holidays when people are more likely to drink, such as New Year's Eve. Courts in the majority of states have upheld these checkpoints against challenges that these checkpoints are unconstitutional.

Felony Drunk Driving

Most states have expanded their drunk driving statutes to provide for harsher punishment when drunk driving has resulted in injury to another. Where a person causes injury to another while driving drunk, the person may be charged with a felony, punishable by a term in state prison. In an even more severe expansion of criminal laws, some states now incorporate their murder or manslaughter statutes with their DUI laws where drunk driving results in the death of another. Moreover, in some states, a person may be charged with assault with a deadly weapon for driving a car while intoxicated. In such an instance, the deadly weapon is the car.

All states treat first DUI offenses as misdemeanors. However, in the majority of states, a person's third offense (or third "strike") is treated as a felony.

Defenses

A person charged with drunk driving usually attacks the arresting officer's observations or opinions. A defendant may also attack witnesses that tested the defendant's BAC, or the defendant may call on someone who can testify that the defendant was sober.

In addition to these strategies, a defendant could rely on one of several defenses. These defenses include the following: (1) necessity, which applies when a person must drive to prevent a greater evil; (2) duress, which applies when the defendant drives in order to avoid serious injury or death; (3) entrapment, which applies when an officer requests that a person drive drunk; (4) mistake of fact, which applies when a person has an honest belief that his or her BAC is below the legal limit; and (5) involuntary intoxication, which applies when the person has ingested alcohol without his or her knowledge.

Individual states take different positions with respect to the availability of these defenses. In general, however, these defenses rely on specific sets of facts and are each very difficult to prove successfully.

Sentences

A person who is convicted of drunk driving most likely faces some or all of the following in terms of punishment: a fine; time in jail; suspension, restriction, or revocation of the defendant's driver's license; probation; enrollment and completion of a course in drunk driving or alcoholism.

In addition to these, states have also developed other penalties or requirements that drunk drivers must fulfill. One requirement that has become more common throughout the nation involves the use of an ignition-interlock device. Such a device captures a driver's breath and analyzes the BAC of the driver. The device only allows the driver to start the vehicle when the breath analyzer reads below a certain level, such as .02 percent. Another form of punishment is the impoundment of a drunk driver's vehicle for a certain period of time. A more serious form of this punishment is the forfeiture of a vehicle, meaning that a court can order the sale of a person's car after the person has had multiple convictions for drunk driving.

States have also modified their statutes to provide for enhanced sentences under some circumstances. These sentence enhancements may apply when one of the following events occur: (1) the defendant's BAC is very high, such as above .20 percent; (2) the defendant refuses to submit to chemical testing; (3) the defendant greatly exceeds the speed limit or drives recklessly while drunk; (4) a child under the age of 14 is in the car when the defendant is driving drunk; (5) drunk driving is accompanied with an accident or injury to another person.

State Drunk Driving Laws

Each state has established .08 as the BAC that constitutes a per se drunk driving violation. The states otherwise vary on the specifics of their drunk driving laws. The following summarizes some of these state laws:

ALABAMA: The state does not provide for penalties that include ignition interlocking devices or forfeiture of the defendant's vehicle.

ALASKA: The state provides for penalties that include both ignition interlocking devices and for forfeiture of the defendant's vehicle.

ARIZONA: The state provides for penalties that include both ignition interlocking devices and for forfeiture of the defendant's vehicle. The state provides for enhanced penalties where a defendant's BAC exceeds .15 percent.

ARKANSAS: The state provides for penalties that include both ignition interlocking devices and for forfeiture of the defendant's vehicle. The state provides for enhanced penalties where a defendant's BAC exceeds .15 percent.

CALIFORNIA: The state provides for penalties that include both ignition interlocking devices and for forfeiture of the defendant's vehicle. The state provides for enhanced penalties where a defendant's BAC exceeds .20 percent.

COLORADO: The state provides for ignition interlocking devices but not for the forfeiture of the defendant's vehicle. The state provides for enhanced penalties where a defendant's BAC exceeds .15 percent, with even greater penalties when a defendant's BAC exceeds .20 percent.

CONNECTICUT: The state does not provide for penalties that include ignition interlocking devices or forfeiture of the defendant's vehicle. The state provides for enhanced penalties where a defendant's BAC exceeds .16 percent.

DELAWARE: The state provides for ignition interlocking devices but not for the forfeiture of the de-fendant's vehicle. The state provides for enhanced penalties where a defendant's BAC exceeds .16 percent, with even greater penalties when a defendant's BAC exceeds .20 percent.

DISTRICT OF COLUMBIA: The state provides for ignition interlocking devices but not for the forfeiture of the defendant's vehicle.

FLORIDA: The state provides for penalties that include both ignition interlocking devices and for forfeiture of the defendant's vehicle. The state provides for enhanced penalties where a defendant's BAC exceeds .20 percent.

GEORGIA: The state provides for penalties that include both ignition interlocking devices and for forfeiture of the defendant's vehicle. The state provides for enhanced penalties where a defendant's BAC exceeds .15 percent.

HAWAII: The state provides for ignition interlocking devices but not for the forfeiture of the defendant's vehicle.

IDAHO: The state provides for ignition interlocking devices but not for the forfeiture of the defendant's vehicle. The state provides for enhanced penalties where a defendant's BAC exceeds .20 percent.

ILLINOIS: The state provides for penalties that include both ignition interlocking devices and for forfeiture of the defendant's vehicle. The state provides for enhanced penalties where a defendant's BAC exceeds .15 percent, with even greater penalties when a defendant's BAC exceeds .20 percent.

INDIANA: The state provides for ignition interlocking devices but not for the forfeiture of the defendant's vehicle. The state provides for enhanced penalties where a defendant's BAC exceeds .15 percent.

IOWA: The state provides for ignition interlocking devices but not for the forfeiture of the defendant's vehicle. The state provides for enhanced penalties where a defendant's BAC exceeds .15 percent.

KANSAS: The state provides for ignition interlocking devices but not for the forfeiture of the defendant's vehicle.

KENTUCKY: The state provides for penalties that include both ignition interlocking devices and for forfeiture of the defendant's vehicle. The state provides for enhanced penalties where a defendant's BAC exceeds .15 percent.

LOUISIANA: The state provides for penalties that include both ignition interlocking devices and for forfeiture of the defendant's vehicle. The state provides for enhanced penalties where a defendant's BAC exceeds .15 percent.

MAINE: The state provides for penalties that include both ignition interlocking devices and for forfeiture of the defendant's vehicle. The state provides for enhanced penalties where a defendant's BAC exceeds .15 percent.

MARYLAND: The state provides for ignition interlocking devices but not for the forfeiture of the defendant's vehicle.

MASSACHUSETTS: The state provides for penalties that include both ignition interlocking devices and for forfeiture of the defendant's vehicle.

MICHIGAN: The state provides for penalties that include both ignition interlocking devices and for forfeiture of the defendant's vehicle.

MINNESOTA: The state provides for penalties that include both ignition interlocking devices and for forfeiture of the defendant's vehicle. The state provides for enhanced penalties where a defendant's BAC exceeds .15 percent.

MISSISSIPPI: The state provides for penalties that include both ignition interlocking devices and for forfeiture of the defendant's vehicle.

MISSOURI: The state provides for penalties that include both ignition interlocking devices and for forfeiture of the defendant's vehicle. The state provides for enhanced penalties where a defendant's BAC exceeds .15 percent.

MONTANA: The state provides for penalties that include both ignition interlocking devices and for forfeiture of the defendant's vehicle. The state provides for enhanced penalties where a defendant's BAC exceeds .18 percent.

NEBRASKA: The state provides for ignition interlocking devices but not for the forfeiture of the defendant's vehicle.

NEVADA: The state provides for ignition interlocking devices but not for the forfeiture of the defendant's vehicle. The state provides for enhanced penalties where a defendant's BAC exceeds .18 percent.

NEW HAMPSHIRE: The state provides for ignition interlocking devices but not for the forfeiture of the defendant's vehicle. The state provides for enhanced penalties where a defendant's BAC exceeds .16 percent.

NEW JERSEY: The state provides for ignition interlocking devices but not for the forfeiture of the defendant's vehicle.

NEW MEXICO: The state provides for ignition interlocking devices but not for the forfeiture of the defendant's vehicle. The state provides for enhanced penalties where a defendant's BAC exceeds .16 percent.

NEW YORK: The state provides for penalties that include both ignition interlocking devices and for forfeiture of the defendant's vehicle.

NORTH CAROLINA: The state provides for penalties that include both ignition interlocking devices and for forfeiture of the defendant's vehicle The state provides for enhanced penalties where a defendant's BAC exceeds .15 percent.

NORTH DAKOTA: The state provides for penalties that include both ignition interlocking devices and for forfeiture of the defendant's vehicle.

OHIO: The state provides for penalties that include both ignition interlocking devices and for forfeiture of the defendant's vehicle. The state provides for enhanced penalties where a defendant's BAC exceeds .17 percent.

OKLAHOMA: The state provides for penalties that include both ignition interlocking devices and for forfeiture of the defendant's vehicle. The state provides for enhanced penalties where a defendant's BAC exceeds .15 percent.

OREGON: The state provides for penalties that include both ignition interlocking devices and for forfeiture of the defendant's vehicle.

PENNSYLVANIA: The state provides for penalties that include both ignition interlocking devices and for forfeiture of the defendant's vehicle.

RHODE ISLAND: The state provides for penalties that include both ignition interlocking devices and for forfeiture of the defendant's vehicle. The state provides for enhanced penalties where a defendant's BAC exceeds .15 percent.

SOUTH CAROLINA: The state provides for penalties that include both ignition interlocking devices and for forfeiture of the defendant's vehicle.

SOUTH DAKOTA: The state does not provide for penalties that include ignition interlocking devices or forfeiture of the defendant's vehicle. The state provides for enhanced penalties where a defendant's BAC exceeds .17 percent.

TENNESSEE: The state provides for penalties that include both ignition interlocking devices and for forfeiture of the defendant's vehicle. The state provides for enhanced penalties where a defendant's BAC exceeds .20 percent.

TEXAS: The state provides for penalties that include both ignition interlocking devices and for forfeiture of the defendant's vehicle.

UTAH: The state provides for ignition interlocking devices but not for the forfeiture of the defendant's vehicle. The state provides for enhanced penalties where a defendant's BAC exceeds .16 percent.

VERMONT: The state provides forfeiture of the defendant's vehicle but not for ignition interlocking devices.

VIRGINIA: The state provides for penalties that include both ignition interlocking devices and for forfeiture of the defendant's vehicle. The state provides for enhanced penalties where a defendant's BAC exceeds .15 percent.

WASHINGTON: The state provides for penalties that include both ignition interlocking devices and for forfeiture of the defendant's vehicle. The state provides for enhanced penalties where a defendant's BAC exceeds .15 percent.

WEST VIRGINIA: The state provides for ignition interlocking devices but not for the forfeiture of the defendant's vehicle.

WISCONSIN: The state provides for penalties that include both ignition interlocking devices and for forfeiture of the defendant's vehicle. The state provides for enhanced penalties where a defendant's BAC exceeds .17 percent, with greater penalties when a defendant's BAC is higher.

WYOMING: The state does not provide for penalties that include ignition interlocking devices or forfeiture of the defendant's vehicle.

Additional Resources

Drunk Driving Defense, Fifth Edition. Taylor, Lawrence, Aspen Law & Business, 2000.

"Still Driving Drunk" Mejeur, Jeanne, State Legislatures, December 2003. Available at http://www.ncsl.org/programs/pubs/03SLDec_drunkdrive.pdf

Organizations

Mothers Against Drunk Driving (MADD)

511 E. John Carpenter Frwy. Suite 700
Irving, TX 75062 USA
Phone: (800) 438-6233
Fax: (972) 869-2206
URL: http://www.madd.org/home

National Conference of State Legislatures

444 North Capitol Street, N.W., Suite 515
Washington, DC 20001 USA
Phone: (202) 624-5400
Fax: (202) 737-1069
URL: http://www.ncsl.org