What exactly is the DUI Law? 45 Answers as of July 11, 2013

I know that if you’re over a certain alcohol percentage level (according to your state), it’s automatically illegal. But what if you are under the percentage? How do they decide if you are guilty of DUI or not?

Ask a Local Attorney. 100% Anonymous. Free Answers.

Free Case Evaluation by a Local Lawyer: Click here
Anderson & Carnahan
Anderson & Carnahan | Stephen Anderson
The prosecution must prove you are substantially impaired by the consumption of alcohol. I would be glad to discuss your options.
Answer Applies to: Colorado
Replied: 6/15/2011
Lowenstein Law Office
Lowenstein Law Office | Anthony Lowenstein
There are two charges, one based on alcohol content, another based on driving while impaired. For more information, please see my website.
Answer Applies to: California
Replied: 6/14/2011
Law Offices of Michael Stephenson
Law Offices of Michael Stephenson | Michael Stephenson
There are two ways to be arrested for DUI in California. The first is if your driving is impaired by the use of drugs or alcohol. The second, which is known as *per se DUI*, occurs if your blood-alcohol content (BAC) is .08 percent or higher. Although it might seem odd that there are two different types of DUI, the two laws exist to stop any driver who may be impaired and who has been drinking. Some people with a BAC less than .08 percent may pose a risk on the road, while other drivers who have a BAC of .08 or higher may not seem impaired. The law is structured to keep all impaired drivers off the road, as well as those who have high BAC levels. The jury will decide based on the testimony of all involved whether your driving was impaired and whether that impairment was caused by drug/alcohol use.
Answer Applies to: California
Replied: 6/14/2011
Law Office of Eric Sterkenburg
Law Office of Eric Sterkenburg | Eric Sterkenburg
In California there.are two code.sections, one with.a blood level.over .08 and one.for.driving under the influence. The.second.one.does not require a blood level test. This will be determined by the trier of facts based on testimony.
Answer Applies to: California
Replied: 6/13/2011
Law Office of Tracey S. Sang
Law Office of Tracey S. Sang | Tracey Sang
Just because you are arrested does not mean you will be charged. If you are under legal limit then the DA usually does not file the case.
Answer Applies to: California
Replied: 6/10/2011
    Thomas J. Tomko Attorney At law
    Thomas J. Tomko Attorney At law | Thomas J. Tomko
    In Michigan, there is a presumption of being under the influence with a result of .08 or higher At lower levels, the prosecutor must be able to show that the alcohol consumed affected the ability to drive. This can be shown by other observations or even admissions Guilt is decided by the Judge or Jury after listening to the evidence and deciding the facts of the case. I hope that this was helpful.
    Answer Applies to: Michigan
    Replied: 6/10/2011
    The Law Office of Kevin O'Grady
    The Law Office of Kevin O'Grady | Kevin O'Grady
    The state may charge a person with DUI under more than one theory. One is the person's BAC and another is whether you were impaired. Usually the government tries to prove the latter by field tests such as the eye test, walk and turn etc as well as a person's appearance and perhaps driving. Hiring a defense attorney is the best chance you have of countering the evidence the government may have.
    Answer Applies to: Hawaii
    Replied: 6/10/2011
    The Law Office of Randall S. Woodard
    The Law Office of Randall S. Woodard | Randall Scott Woodard
    In Illinois, and a number of other states, there are essentially two ways a person can be charged with being under the influence of alcohol or drugs or a combination of the two. There is the charge for having a breath or blood alcohol concentration in excess of the legal limit, typically .08%. There is also the traditional charge of simply being under the influence. Your breath or blood alcohol concentration is one piece of evidence but many other factors can be considered. In Illinois if your concentration is below .05% there is a presumption that you are not under influence but it can be rebutted by other evidence and a person could still be convicted.
    Answer Applies to: Illinois
    Replied: 6/10/2011
    LynchLaw
    LynchLaw | Michael Thomas Lynch
    Usually a DUI defendant is charged with a violation of both Vehicle Code section 23152(a) and 23152(b). Under Vehicle Code section 23152(a) It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle. To be convicted the DA would have to show four elements. 1) driving 2) a vehicle 3) on a roadway 4) while impaired. Most contested cases revolve around the "impairment." The DA will attempt to establish the impairment through the testimony of the police. It starts with the objective signs of consumption, red and watery eyes, slurred speech, & odor of alcohol. From there they describe the poor results of the field sobriety tests (FST) to establish the impairment. The FST's are the typical ones you all know from TV. The one legged stance, finger to nose, hand pat, & heel to toe straight line walk. It is only when the charge of 23152(b) comes into play where chemical testing is used to support the allegation the defendant is presumed to be impaired because they were at or above 0.08 BAC. When a driver refuses to submit to chemical testing, or for whatever reason results are not available, the DA will attempt to convict under VC 23152(a) alone.
    Answer Applies to: California
    Replied: 6/10/2011
    Timothy J. Thill P.C.
    Timothy J. Thill P.C. | Timothy J. Thill
    If you blew under the legal limit for DUI in your state, the prosecution can still proceed, going on the observations of the arresting officers as to your actions at the time of the arrest. If you performed standard performances tests, e.g., heel-to-toe test, finger-to nose test, etc, had red or glassy eyes, the odor of alcohol on your breath, to an extent that the officer believed you to be under the influence, the prosecution can proceed and possibly get a conviction for DUI. The fact is, if you blew well below the limit, your chances of being convicted are better than if you blew near the limit. Consult with an attorney, he will be able to gauge the possibility of success after a trial once he has obtained the applicable reports from the police.
    Answer Applies to: Illinois
    Replied: 6/10/2011
    The Law Firm of Aaron Bortel Esq.
    The Law Firm of Aaron Bortel Esq. | Aaron Bortel
    It's called impairment, and this is based on field sobriety tests, driving, and observations made by the officer, such as an unsteady gait, odor of alcoholic beverage, bloodshot/watery eyes, and anything else the cop chooses to put in his or her report. In California, the question is whether you were driving with the care and caution of a sober person. Bad driving and accidents make this impairment charge tougher to beat.
    Answer Applies to: California
    Replied: 6/10/2011
    Law Offices of Scott G. Hilderman
    Law Offices of Scott G. Hilderman | Scott G. Hilderman
    They would need to prove beyond a reasonable doubt if you are under the influence based on any field sobriety tests they give you.
    Answer Applies to: Montana
    Replied: 6/10/2011
    Craig W. Elhart, P.C.
    Craig W. Elhart, P.C. | Craig Elhart
    In Michigan, it is illegal to operate a motor vehicle with a blood alcohol content of 0.08 or more. If a person was to be found to have a blood alcohol content of 0.07, that would not meet the statutory definition. However, a prosecutor may still try to argue that the person was under the influence of alcohol but it would be hard to do. Generally, if a person has a blood alcohol content of less than 0.08, they are not charged.
    Answer Applies to: Michigan
    Replied: 6/10/2011
    Law Office of Andrew Subin
    Law Office of Andrew Subin | Andrew Subin
    Regardless of blood alcohol level, to prove a DUI the prosecution needs to show that your ability to drive was affected by the alcohol you drank.
    Answer Applies to: Washington
    Replied: 6/10/2011
    Beaulier Law Office
    Beaulier Law Office | Maury Beaulier
    It is unlawful in Minnesota and in most states to test with a blood alcohol level in excess of .08. It is also unlawful to drive under the influence of alcohol where the driving conduct is impaired. There are many defenses to both charges. However any defenses would require a review of all evidence in the case.
    Answer Applies to: Minnesota
    Replied: 6/10/2011
    Nelson & Lawless
    Nelson & Lawless | Terry Nelson
    Driving under the influence meaning impaired. The police officers testimony about your observed driving and physical condition can convict you, no matter the BA level. If you are the one arrested, if serious about hiring counsel to help you in this, and if this is in SoCal courts, feel free to contact me.
    Answer Applies to: California
    Replied: 6/10/2011
    Palumbo and Kosofsky
    Palumbo and Kosofsky | Michael Palumbo
    If you have been arrested you need to retain a law firm of our caliber to represent you in defense of the charges. I cannot possibly answer this question in a vacuum, it all depends on the specific facts and circumstances of the stop.
    Answer Applies to: New York
    Replied: 6/10/2011
    Law Office of Phillip Weiser
    Law Office of Phillip Weiser | Phillip L. Weiser
    Each State will have specific laws pertaining to DUI. You should consult with an experienced DUI attorney in the State where you reside. In Kansas, the presumption of impairment begins at a BAT of .08. You could be convicted of DUI even if your level is below that presumptive level if the evidence is convincing that you were impaired. You should consult with an experienced DUI attorney.
    Answer Applies to: Kansas
    Replied: 6/10/2011
    Law Office of Thomas F. Mueller
    Law Office of Thomas F. Mueller | Thomas Mueller
    They look at the circumstantial evidence, such as: erratic driving whether there was an accident how you did on the performance tests. what you told them about your alcohol consumption It is possible to be convicted when the tests don't show any alcohol at all, like when there are street or prescription drugs used
    Answer Applies to: California
    Replied: 6/10/2011
    Law Offices of John Carney
    Law Offices of John Carney | John Carney
    You can be arrested for DWI if the officer believes you are intoxicated. The BAC or Blood Alcohol Content is a factor in the assessment of how intoxicated you are. The legal limit for DWI is .08, but you can be arrested with a .04 or more. A BAC under .04 has a presumption that you are not impaired or intoxicated. Between .05 and .07 you are presumed to be impaired and over .08 you are presumed to be intoxicated. You can be charged with either the violation of Impaired Driving or DWI, which is a misdemeanor, but unless there is an accident, priors, or a BAC over .17 the end result will be an Impaired violation conviction. If you refuse the test you will be judged by the testimony of the officer and your driving.
    Answer Applies to: New York
    Replied: 6/10/2011
    Allan & Summary
    Allan & Summary | Justin Summary
    The short answer is that it's up to a jury or judge to decide whether you were impaired while driving. The blood alcohol level is all about shifting the burden of proof. If you blow over the limit you are presumed to be intoxicated. If you blow under the limit you may still be charged with a DWI but it is presumed that you were not intoxicated until proven otherwise.
    Answer Applies to: Missouri
    Replied: 6/10/2011
    Law Office of Richard Williams
    Law Office of Richard Williams | Richard Williams
    The DUI laws in Alabama are found in Code of Alabama Title 32-5A Section191. You can look up the laws on line if you key in Code of Alabama 1975.The law on DUI is brought in two ways.First, in the event you are driving with a blood alcohol level of .08 or higher you can be found guilty of DUI (violation of 32-5A191(a)(1)). If you have a blood alcohol level of less than .08 you can not be found guilty of violation of this statute,Second, a law enforcement officer can testify that you appear to have consumed alcohol to the point that you are unable to safely operate a motor vehicle on account of your alcohol consumption. The only thing needed for a conviction is the officer's opinion. The field sobriety tests that are administered are supposed to assist the officer in making his determination. If the officer opines that you are drunk and operating a motor vehicle you are in violation of 32-5A-191 (a) (2).The blood alcohol level is not the key factor in determining whether you have violated Title 32-5A-191 (a) (2) but is normally introduced to show what your blood alcohol level was at the time following the arrest. A blood alcohol level of .05 or higher raises a rebuttable presumption that you are not able to safely operate a motor vehicle. Below .05 is a presumption that you are not too intoxicated to operate a motor vehicle.This means that you can be convicted of DUI with a blood alcohol level below .08.If you are under the age of 21 or if you have a CDL or you are a school bus driver, the presumption is lowered to .02.In addition to intoxication by alcohol the Alabama Code also provides for driving under the influence of medication, drugs or a combination of drugs and alcohol or any substance that may impair your ability to safely operate a motor vehicle (I suppose this could mean too many twinkies). Code of Alabama 32-5A-191 (a) (3) thru (5)The penalties for conviction of any subsection of 32-5A-191 (a) (1) thru (5) are the same.
    Answer Applies to: Alabama
    Replied: 6/10/2011
    Harris Law Firm
    Harris Law Firm | Jennifer C. Robins
    In Oregon, the legal limit for a DUII is .08%, however; a subject can be found guilty of a DUII if they are under the legal limit but is "impaired to a perceptible degree," meaning, when the investigating officer encounters the subject, can the officer tell through his or her senses, that someone is impaired by an intoxicant.
    Answer Applies to: Oregon
    Replied: 6/10/2011
    Austin Legal Services, PLC
    Austin Legal Services, PLC | Jared Austin
    In Michigan, it is .08 and .02 if you are under age 21. If you reach .17 then you are "super drunk" which means heightened punishment. If you are at or over those limits, then you are out of bounds with the law. You can still be prosecuted for DUI if your blood alcohol content is lower, but it become much more difficult.
    Answer Applies to: Michigan
    Replied: 6/10/2011
    Law Office of Brendan M. Kelly
    Law Office of Brendan M. Kelly | Brendan M. Kelly
    Normally it is the test result coupled with the actual physical control of a car. Without a test is the facts and circumstance observed by the cop. A low test may be a presumption that you where not impaired.
    Answer Applies to: Nebraska
    Replied: 6/10/2011
    Law Office of Peter F. Goldscheider
    Law Office of Peter F. Goldscheider | Peter Goldscheider
    You can be guilty of a violation of Vehicle Code section 23152 by either being above a .08 per cent alcohol level or being under the influence. The latter is established by all of the circumstances of your arrest including the officer's opinion on the subject. You can be under the influence (if the jury believes it to be true beyond a reasonable doubt) at any level.
    Answer Applies to: California
    Replied: 6/10/2011
    Bloom Legal, LLC
    Bloom Legal, LLC | Seth J. Bloom
    In Louisiana, DUI is actually the crime of operating a vehicle while intoxicated. It is defined as: (a) The operator is under the influence of alcoholic beverages; or (b) The operator's blood alcohol concentration is 0.08 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood; or (c) The operator is under the influence of any controlled dangerous substance listed in Schedule I, II, III, IV, or V as set forth in R.S. 40:964; or (d)(i) The operator is under the influence of a combination of alcohol and one or more drugs which are not controlled dangerous substances and which are legally obtainable with or without a prescription. If you are not found to have a BAC over your state's limit or have not been proven to be under the influence of any drugs, then you may have a solid defense against DUI charges and the possibility of having your case dismissed. If you are seeking legal representation in this matter in Louisiana, we invite you to contact our firm at the information on this page for a free case evaluation.
    Answer Applies to: Louisiana
    Replied: 6/10/2011
    The Law Offices of Mark Kotlarsky
    The Law Offices of Mark Kotlarsky | Mark Kotlarsky
    The judge listens to the officer and you. The judges generally believe the cops, so normally one needs a jury trial.
    Answer Applies to: Maryland
    Replied: 6/10/2011
    Healan Law Offices
    Healan Law Offices | William D. Healan, III
    Every case is different, but it is generally pretty difficult for the prosecutor to convict someone if they are under the limit. Find a good lawyer. The easiest way to get convicted if you are under the limit is by trying to handle the case yourself.
    Answer Applies to: Georgia
    Replied: 6/9/2011
    Arnold & Wadsworth
    Arnold & Wadsworth | Brian Arnold
    This all depends on your state's statutes.
    Answer Applies to: Utah
    Replied: 7/11/2013
    Law Offices of Phil Hache
    Law Offices of Phil Hache | Phil Hache
    In CA, you can be charged with, and convicted of a DUI even if your blood alcohol percentage is below a .08. They base that allegation based on many factors, such as driving and performance on field sobriety tests, etc. If your blood alcohol percentage is below a .08, it is definitely worth fighting, particularly if there was not a car accident involved.
    Answer Applies to: California
    Replied: 6/9/2011
    Michael Anthony Wing, P.C.
    Michael Anthony Wing, P.C. | Michael Anthony Wing
    Officer testimony or other witness testimony describing your condition. It is a much more difficult case for the prosecution. Stay well.
    Answer Applies to: Alabama
    Replied: 6/9/2011
    Theodore W. Robinson, P.C.
    Theodore W. Robinson, P.C. | Theodore W. Robinson
    The blood alcohol content is .05 for an Impaired and .08 for intoxicated. If you are under .08, but above .05, you can still be charged and convicted of the violation of Driving while Impaired instead of Intoxicated. The judge or jury (your choice) decides based upon the reading as well as your drunkenness or drunken behavior that is shown by bloodshot eyes, slurred speech, wobbly feet, etc. as well as the percentage of blood alcohol being above the aforementioned percentages. Good luck.
    Answer Applies to: New York
    Replied: 6/9/2011
    Law Office of Jonathan T. Sarre
    Law Office of Jonathan T. Sarre | Jonathan T. Sarre
    In Oregon, where I practice, "Driving Under the Influence of Intoxicants" (DUII) is either .08 or above or if you are "impaired to a noticeable and perceptible degree." That could be, but doesn't have to be what we consider or know to be "drunk" but it's defined as a "person's physical and mental capacities are adversely affected" by the use of alcohol. That means if you are the proverbial "lightweight," you can be convicted of DUII even if you blew under .08.
    Answer Applies to: Oregon
    Replied: 6/9/2011
    Law Office of Rankin Johnson IV, LLC
    Law Office of Rankin Johnson IV, LLC | Rankin Johnson IV
    In Oregon, you're guilty if you're over .08% alcohol in your blood, or if you are impaired "to a noticeable or perceptible degree." And whether you're guilty is for a jury to decide. In theory, they jury doesn't have to believe even the breath test for blood-alcohol level, but in practice it is legally insulated from most sorts of attack. I think that process is illegal, but the courts have not really decided yet.
    Answer Applies to: Oregon
    Replied: 6/9/2011
    Howard W. Collins, Attorney at Law
    Howard W. Collins, Attorney at Law | Howard W. Collins
    08 is the point at which the law says that you are under the influence. You can be less than a .08 and be charged and convicted for several reasons:
    1 You were affected to a perceptible degree by the alcohol at the time you were driving;
    2 A combination of alcohol and other substances combined make you affected to a perceptible degree;
    3 You were under the influence of something other than alcohol and therefore were DUII; but the allegation of driving under the influence of drugs must be specifically pled in the criminal information. Good luck. You probably should hire a lawyer.
    Answer Applies to: Oregon
    Replied: 6/9/2011
    San Diego DUI Law Center
    San Diego DUI Law Center | Rick Mueller
    You have to be impaired or .08% .
    Answer Applies to: California
    Replied: 6/9/2011
    Mercado & Hartung
    Mercado & Hartung | Stephanie Hartung
    In Washington State you can be charged with DUI if: 1) You blow over .08 (per se DUI) 2) You are affected by the alcohol you drank (regardless of the breath test level) 3) You are under the influence of a drug (prescription or illegal) It is somewhat subjective to determine someone is affected by the alcohol they drank. That is one of the reasons the officers typically have the person do field sobriety tests (its a way to look for clues of intoxication...certainly not a fool proof method). The officer is also trained to look for other supportive observations like, odor of alcohol, bloodshot watery eyes, slurred speech, flushed face, how the person acts, how they exit their vehicle, etc. There are a lot of defenses to a DUI charge, especially where you are under the legal limit. Please feel free to contact me directly for more information (free of charge).
    Answer Applies to: Washington
    Replied: 6/9/2011
    Michael Breczinski
    Michael Breczinski | Michael Breczinski
    The law is does the alcohol impair your ability to drive or do you have over .08 of alcohol in your system. Also you can have less alcohol and it affects your driving so that you could be found guilty of impaired driving.
    Answer Applies to: Michigan
    Replied: 6/9/2011
    Cynthia Henley, Lawyer
    Cynthia Henley, Lawyer | Cynthia Henley
    It is not necessarily an automatic guilty if you are over the legal limit for your state. If you choose to have a jury trial, the jury must determine if the measuring device or method of taking the measurement was working correctly or handled correctly. If there is no measuring device, at least in Texas, it is the loss of the normal use of your mental and / or physical faculties due to the introduction of alcohol into the body. A cop who is deemed an expert will testify as to field sobriety tests that are administered and the clues that are observed which indicate intoxication. If the measuring device shows that you are under the legal limit, then the State must prove by extrapolation that at the time of driving (versus at the time of the test) that you would have been over the legal limit. This is generally done with the information provided by the arrestee at the time of arrest with regard to drinking and eating that day.
    Answer Applies to: Texas
    Replied: 6/9/2011
    The English Law Firm
    The English Law Firm | Robert English
    In California, you can still be convicted of Driving Under the Influence regardless of the percentage if your observed driving and/or performance on sobriety tests shows you to be impaired.
    Answer Applies to: California
    Replied: 6/9/2011
    Law Office of Jeff Yeh
    Law Office of Jeff Yeh | Jeff Yeh
    First of all, nothing is automatically illegal. If it were, I'd be out of a job (remember that 99% of clients I have are over the legal limit). Second, if you are under, you still can be prosecuted, and the evidence they will use will be the poor driving, failure of the field sobriety tests, admission to drinking...etc.
    Answer Applies to: California
    Replied: 6/9/2011
    Law Office of William S. Smith
    Law Office of William S. Smith | William S. Smith
    In Massachusetts, the legal standard is whether it can be proven beyond a reasonable doubt that due to the ingestion of alcoholic beverages, the defendant's ability and capacity to operate a motor vehicle safely has been impaired, no matter how slightly.
    Answer Applies to: Massachusetts
    Replied: 6/9/2011
Click to View More Answers:
12 3 4 5 6 7 8 Free Legal QuestionsConnect with a local attorney

Need more information on drunk driving law? Visit our free DUI resource page to learn more.

If you need immediate assistance, fill out a free case evaluation form to connect with a DUI lawyer in your area today!