Laws & Penalties Drunk Driving, DUI, DWI FAQ

  1. DUI (Driving Under the Influence) and DWI (Driving While Intoxicated) offenses are criminal in nature. It is important for all drivers to be aware of the law and measures taken by the police and law enforcement to ensure road safety. The following represents frequently asked questions about DUI and DWI laws and related issues that you may encounter while driving and on the road.

    How impaired, drunk or high must I be to be convicted of a DUI or DWI offense?

    DUI and DWI offenses do not require you to be fully drunk or high. The law makes it illegal to operate a car or motor vehicle while your reactions are impaired by the effects alcohol, drugs (including prescription drugs) or other substances. Impairment occurs when you become unable to react to road conditions appropriately, think clearly and drive safely.

    Each state has a blood alcohol content level (BAC) at which a person is deemed guilty of a DUI or DWI, no matter how the well the driver feels or performs. A BAC level of .08% or greater is typically enough for one to be found guilty of a DUI or DWI chage. All states have a zero tolerance policy for young drivers, those who are under the legal drinking age, which is usually a 0, .01 or .02% BAC level.

    What methods can the police use to determine whether a driver may be driving under the influence or while intoxicated?

    There are typically three methods that police use to find out whether a person is driving drunk or under the influence of drugs or other substances:
    • Observation

      The police may watch you while you're driving, such as following your car from behind or observing from a distance. If you are driving erratically (such as not driving straight, swerving, going too fast or slow) a police officer has the right to pull you over. The officer may notice conditions that point to a reasonable suspicion of a driver being under the influence of alcohol, drugs or another substance - such as smelling alcohol, seeing bloodshot eyes, hearing slurred speech and observing twitching or unsteady movements.
    • Field Sobriety Test

      An officer may require you to take a roadside test to determine your reaction time and driving capabilities. You will usually be asked to get out of your car to perform balance tests (such as walking on a straight line, standing on one leg, closing your eyes and touching your nose) or answering questions to determine your cognitive abilities (recite a set of numbers or the alphabet backwards.) Failing the test may result in your arrest or a request for you to consent to a chemical test.
    • Chemical Test

      The amount of alcohol in your body can be determined via a blood test, urine test or a breath test (usually with a "breathalyzer").

    Must I consent to a field sobriety test or chemical test (breathalyzer, blood test or urine test) if I am stopped under suspicion of a DUI or DWI?

    You can refuse to take a field sobriety test or chemical test but there are repercussions. In the event your case goes to trial, a prosecutor may inform the jury that you refused to take either test and the jury members will be allowed to conclude whatever they wish. The jury may infer that you refused the test because you knew or felt like you were significantly impaired by alcohol or drugs.

    You can refuse to take a chemical test (breathlyzer, blood or urine test) but virtually every state has penalties for doing so. "Implied Consent" means that in exchange for your driving privileges, you are deemed to have given the state consent to a chemical test or other test implemented for the purpose of ensuring driving safety. Your refusal to agree to be tested after being suspected of a DUI or DWI offense can result in your driver's license being suspended from 3-12 months. The suspension may occur even if you are ultimately found not guilty of a DWI or DWI offense.

    Must the police read me my rights if they stop me under suspicion of a DUI or DWI offense?

    In general, no, the police do not have to read you your rights (also known as "Miranda rights" or "Miranda warning") if they are not actually arresting you. They can question you and it is your right to refuse to answer questions. But if you are arrested, being formally restrained by the police, the police must read to you your Miranda rights.

    Do I have the right to speak to an attorney before taking a chemical test?

    The right to speak to a lawyer before taking a chemical test depends upon the state where you are being charged with a DUI or DWI offense. In California, Georgia, Louisiana, Tennessee and some other states, you have no right to speak with a lawyer before making a decision to take or refuse a chemical test. Arizona, Maryland, Minnesota and some other states do provide you with the right to consult with an attorney before submitting to a chemical test.

    Can the police legally pull me over at a DWI or DUI roadblock or stop point and ask me questions?

    The police can always pull you over and question you if your conduct provides a reasonable suspicion that you are driving under the influence of alcohol or drugs. The police can pull you over at a roadblock and make random stops provided that the policy is neutral and fair (all cars or every fifth car is stopped) and is of minimal inconvenience.

    Do I need a lawyer to fight a DWI or DWI charge or can I defend myself?

    Drunk driving, DUI and DWI offenses are criminal charges. A conviction will remain on your record and the punishment can be significant, including the loss of your driver's license. DWI and DUI offenses are complicated in nature Defending them requires a good understanding scientific, technical and medical concepts as well as the ability to effectively question witnesses including police officers, doctors and scientists.

    Most people don't have experience defending DWI or DUI charges. As a result, it would seem prudent to retain an experienced attorney with a DWI and DUI specialty. A good lawyer may be able to get your case dismissed or obtain an acceptable plea bargain that will allow you to avoid trial altogether.
    DUI & DWI Law:
    Criminal Procedure

    Michael Wechsler

    Michael Wechsler
    Michael M. Wechsler is an experienced attorney, founder of, A. Research Scholar at Columbia Business School and of-counsel to Kaplan, Williams & Graffeo, LLC. He was also an SVP and chief Internet strategist at and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.


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