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Driving Under the Influence (DUI), Driving While Intoxicated (DWI), Operating Under the Influence (OUI), all mean the same thing in each state – that you were impaired by a substance while driving.  It is generally charged as a misdemeanor if it is a first offense unless someone was injured or killed while a defendant was driving under the influence.  It is generally a priorable offense, meaning each time that you are caught your punishment will increase and at some point can be charged as a felony.  It can result in license suspension or restriction, require the installation of interlock ignition devices (which are paid at your expense) and expensive classes or fines to regain your license.  In some states the punishment is harsher if driving on a revoked license because of a DUI as opposed to just driving on a revoked license.

Driving while under the influence can be based on consumption of alcohol, drugs or a combination of both.  Statutes with specific BAC levels are charged in conjunction with general DUI statutes for driving while under the influence as alternate theories of the same crime.  You can be convicted of both, but you cannot be punished for both.  .08% is the general BAC level of most states (if not all).   One can still be charged if under .08% if their driving is impaired.  The consumption of any drug which impairs a person, is one that can be used to charge a defendant with this offense.  This includes prescription drugs or other drugs consumed otherwise lawfully. 

Generally speaking DUIs are much more complicated crimes than most people would think and consulting an attorney with expertise in this area is highly recommended.  Blood alcohol can be affected by blood conditions (diabetes) or other medical conditions (GERDs), or circumstances of the tests (faulty equipment, improper administration of the machine, improper maintenance, chewing gum, passage of time between driving and administration of the test, etc.) 

Some defenses include emergency, privilege, rising blood alcohol, and the no driving defense.  Emergency would include having to get to a hospital or having to get someone who cannot drive themselves to the hospital because they were about to die.  Not wanting to leave your car parked at the bar is not an emergency or a defense of any kind.  Privilege would be if an officer directed you to move a car and you were obeying his order.  Your mother ordering you to move the car would not qualify.  No driving defense is simply that, the defendant was not driving while intoxicated.  Examples of this would be someone who was a passenger in a vehicle, their friend pulled over to let them get air on the side of the road, officers come up and assume the drunk person is the one who was driving.

The rising blood alcohol defense is one in which the defendant states that at the time of driving they were below a .08, even if they were higher than a .08 at a later time.  If a person takes a couple shots back to back then hops in a car right away, the alcohol may not have hit their system yet.  At the time they are pulled over, officers would administer the preliminary alcohol breath test and let’s say after the battery of FSTs (field sobriety tests) and having waited a half hour or so after those FSTs, the BAC registers at a .08.  Later at the station, the defendant takes another breath test and it registers at a .10.  This is because it takes time for alcohol to absorb into the blood stream so now it is fully absorbed and defendant’s BAC is at its apex.  By deduction, this means the defendant was even further below .08 at the time of driving.  This would only be successful if the defendant displayed normal driving, ie. defendant was pulled over for tinted windows or busted taillight as opposed to weaving in and out of the lanes.   Also consider, many jury instructions state that a BAC can be assumed for three hours before and after giving that test.  So juries are allowed to assume that the person was a .10 three hours before and three hours after giving that test.  Because so many people do despise DUIs as a jury, fighting any DUI is difficult and working with your attorney to discuss strategy is very important, even if you think you have a “winnable” case.

Elements, crimes and defenses vary from state to state and within the federal system.  If you or someone you know is charged with any crime, as always, you should consult a local attorney, licensed to practice in your jurisdiction and preferably one practicing only criminal law.  For DUIs it is suggested you seek out a criminal defense attorney in which the majority of their practice is focused on DUIs.  You can always look for your local criminal attorney at

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