What Is A DUI Charge?

Few crimes are as entirely preventable, especially today, as driving under the influence. Ten years ago, you may have lived in a place without taxi cabs and your alternative to driving drunk or under the influence of drugs may have been to walk a dozen miles in the snow or sleep in the back of your car - risking a DUI was still the wrong choice, but perhaps the tiniest bit more understandable. Today, we have such miraculous technological advancements as Uber and Lyft, which provide transportation in most areas of the country with the tap of an app, unless you are in an extremely remote or rural community.

But, if despite the alternatives to driving, you have made the mistake of driving under the influence, or if someone you love has, you are probably wondering all about the charge and its consequences. The answers to your questions are not easy, and not short. The abbreviated version is that driving under the influence is a crime that often carries at least some jail time, a fine, a suspended license, and of course, a hike in your insurance rates.

Is DUI A Criminal Charge?

In virtually all states and cities in this country, driving under the influence is a criminal charge. For most first and second-time offenders, it is charged as a misdemeanor offense, which is less serious than a felony. Misdemeanors carry less than a year in jail, while felonies typically carry a year or more. If this is a first offense, it is possible that there will be little to no actual jail time, and instead, if any jail time is required by state law, it will be served on work detail, such as picking up trash along the side of the road.

Of course, the penalties will vary by state, as will the charges. Typically, DUI will be charged as a more serious misdemeanor or as a felony if any of the following extenuating circumstances apply:

If you are a first-time offender and the case is weak enough, such as a very borderline (near 0.08 in most states) blood-alcohol content reading, you may be offered a plea bargain to a lesser offense. This may be a non-criminal infraction or a less serious misdemeanor, such as a reckless driving charge.

To use California as an example, there is a specific “baby DUI” charge that the legislature created specifically for plea bargains that is known as “reckless driving, alcohol-related.” Lawyers will often refer to this as a “wet reckless” for short. A “wet reckless” is still a misdemeanor but it carries fewer penalties than a normal DUI.

While the criminal consequences may not seem very steep - picking up trash next to the freeway for a first-time offender and a fine aren't exactly hard time - you should also be aware of the consequences outside of the criminal court for a DUI conviction. Your license will almost certainly be suspended. In many jurisdictions, to get your license back, you will likely be required to attend alcohol education courses or Alcoholics’ Anonymous meetings. Most states will probably require you to obtain high-risk auto insurance (sometimes called SR-22 insurance) which is extremely expensive compared to normal basic liability coverage. And finally, some jurisdictions will even require an ignition interlock device to be installed in your car before your license can be reinstated.

And here’s another kicker: if you score a sweetheart deal now, but you screw up and get another DUI charge down the line, there will often be enhanced penalties for that subsequent drunk driving episode. Again, to use California as an example: DUIs are priorable for up to 10 years, meaning enhanced penalties for subsequent DUIs are applied if you had a previous conviction, including a baby DUI, within 10 years - penalties include longer jail stints and alcohol education courses, plus larger fines.

How To Beat A DUI Charge

Hire a lawyer! No seriously, while it may seem possible to represent yourself in minor traffic offenses, to do so in a criminal trial where you have been charged with one of the most villainized misdemeanor offenses there is, would be downright foolish.

Instead, you can play a very active part in defending your case by being honest with your attorney and providing all the facts of the offense and the evening that led up to it, such as your drinking pattern before getting in the vehicle and, as best as you can recall, what happened between getting in the car and being arrested - the facts of the evening will determine what your defense is.

There are an infinite number of ways to beat a DUI charge, but some of the most common ones include:

Of course, there are even more defenses. A creative lawyer can come up with pretty much anything, though the weird defenses don't always win. What is the weirdest? How about a ketogenic diet defense? When a person adopts a ketogenic diet, in the first day or two, the adjustment to the diet can flood the body with ketones. Type I diabetics, who have low blood sugar, may also have excess ketones (and fatigue, dizziness, and a lack of coordination, all which are also signs of intoxication). These ketones can cause a false positive on a breath test - but not a blood test. 

How To Fight A DUI Charge For Prescription Drugs

When you think about a DUI, you probably just think about drunk driving. After all, the main advocacy group for stricter laws is called Mothers Against Drunk Driving (MADD), not Mothers Against Driving While Under the Influence of Too Much Prozac (MADWUITMP). And many people, innocently enough, think that simply because their physician prescribed the drugs that they are taking, that it is perfectly legal to drive after ingesting the pills, even if it makes them a little bit loopy.

The law does not care about the source - legal or illegal - or the substance - alcohol, street drug, or prescription - that influences you and impairs your ability to drive. The law only cares that you chose to drive while under the influence of any substance that impairs your abilities.

So, if you were surprised with a prescription drug DUI charge, how do you fight it? Perhaps the main argument is that there is no set level of prescription drugs that counts as a DUI. Alcohol, for example, in most states leads to a DUI when your blood-alcohol level meets or exceeds the mark of .08. There is no magic number for Oxycontin, Ritalin, or whatever other prescription drug you might be under the spell of. The same goes for marijuana, by the way.

Instead, the prosecutor is arguing that you took so much of whatever drug it is, that your ability to pilot a vehicle safely was impaired. That is it. That is all that the law requires: impairment. Of course, proving that you were impaired can be difficult. The prosecutor’s job will probably be easier if you were driving in an unusual manner, such as across multiple lanes of traffic or at an excessively high or excessively slow rate of speed.

To prove her case, the prosecutor will probably present the observations of the officer, as well as any field sobriety tests that you may have taken. Field sobriety tests have been shown to mostly be junk science - even court opinions have held as much. Only the horizontal gaze nystagmus test where you follow a pen with your eyes has been shown to have a link to impairment. Other tests, such as walking in a straight line, do not necessarily prove that you are under the influence of a substance. You might just be uncoordinated, have a physical disability such as a bad knee, or just have been nervous during the test.

DUI Charge After The Fact

You got away with it. You drove drunk, made it home, and nobody was the wiser. Except, the police come knocking on your door an hour later. Can you be charged with driving under the influence after the fact, meaning after you have sobered up and are no longer piloting a vehicle?

Absolutely. You can be convicted of any offense where the prosecutor has enough evidence to convince a jury or judge. How do they prove a DUI case after the fact? Perhaps they have witnesses who will testify that you were drunk when you got behind the wheel. Or, if they came knocking on your door shortly after you got home, they may still get a blood or breath reading and make a falling blood alcohol level argument - that your true blood-alcohol level was higher when you were driving then when they eventually tested you after the arrest.

Of course, the harder it is to prove, the better your chances of defending yourself. You may argue that you weren't driving. Or perhaps that in the time between you getting home and being arrested, you had more beer. Whatever your argument is, you’ll just need to cast doubt on the prosecutor’s charge that you were driving a motor vehicle while impaired.

No matter what your chances are of beating a charge - a DUI, a prescription drug DUI, or a DUI after the fact - the fact is that your chances of beating the charges are exponentially higher with the right attorney by your side. It may seem cheap to go with a public defender, take a quick plea, or to try to defend yourself, but you are being penny-wise and pound-foolish if you decide to take that route. After all, the collateral consequences of a conviction will follow you for a decade or even the rest of your life - get the best legal help you can possibly afford.

Off The Record works with attorneys across the country. While most of them handle traffic tickets they also handle DUIs and other similar offenses under some circumstances and in some areas. You can connect with those local attorneys here to find out if they can help with you DUI.

This information on this site is provided solely for informational purposes. It is not legal advice. Off The Record is not a law firm, does not provide legal services, and is not a lawyer referral service. The attorney listings on the site are paid attorney advertisements. Off the Record has not evaluated this content for accuracy, completeness, or changes in law. No representation is made here about your specific rights. Off The Record is not a substitute for an attorney or a law firm. Legal advice can only be provided by a licensed lawyer.

Photo credit: Josh Hallett Attribution 2.0 Generic (CC BY 2.0)