Overview of Drunk Driving Offenses in the United States

Each state in the country has passed a law which makes it illegal to drive a motor vehicle while under the influence of alcohol or drugs. Since this offense is controlled by state law, it may be known as the crime of driving while intoxicated (DWI), operating a motor vehicle under the influence (OUI) or driving under the influence (DUI), or some other similar variation. Regardless of how each state titles this offense, it is illegal to operate a motor vehicle while impaired with alcohol or drugs.

The General Elements of Drunk Driving

In 1984, Congress passed the National Minimum Drinking Age Act (28 U.S.C. §

158) which required all states to raise the minimum possession and purchase of alcohol to age 21, or face reduction of federal highway funding under the Federal Highway Aid Act. States which were not in compliant with the law would have their federal highway dollars reduced by ten percent.

Today, all states have enacted tough driving while intoxicated laws. For example, per se laws are presumptive laws which establish that a person is intoxicated once their blood alcohol concentration (B.A.C.) level meets the statutory threshold. Usually, the threshold level is 0.08 percent. However, states also have lower levels of permissible blood alcohol concentration levels for certain classes of drivers; such as limits as low as 0.04 percent for commercial drivers and zero tolerance levels for drivers under the legal drinking age of 21.

Thus, if you are arrested for drunk driving and consented to conducting a breathalyzer or blood test,  if the test returns with a BAC level at or above the state threshold then the prosecutor could introduce this evidence in court and you could be found guilty based upon this presumption.

Reasonable Suspicion, Probable Cause, the Police Stop and Drunk Driving Arrest

In addition to per se laws, generally a state’s drunk driving statue authorizes a police officer to arrest a suspected drunk driver based upon probable cause. Probable cause could be established after law enforcement’s field observation report. However, prior to making an arrest upon probable cause, a police officer must have reasonable suspicion to stop a vehicle. For example, if the driver was stopped for speeding, or committed a traffic violation; headlight or taillight malfunction (broken), or the officer believes that a driver has committed or about to commit a criminal offense.

Additionally, the National Highway Traffic Safety Administration (NHTSA) has developed a list of things that might indicate that a driver is drunk. That list includes, turning with a wide radius, straddling the painted lines on the roadway, weaving, appearing to be drunk, striking or almost striking another vehicle, swerving, driving on the wrong side of the road and, braking erratically. These types of things may enter into an officer’s determination of whether or not he or she has reasonable suspicion to stop a driver for drunk driving. Also, in many states, law enforcement officials conduct random drunk driving checkpoints during a time which a predetermined number of cars are checked for traffic law violations, including driving while intoxicated.

In order to determine whether or not a driver is intoxicated, police officers throughout the country normally conduct standardized field sobriety testing (SFST). If a driver appears to be drunk then the officer may requests that he or she perform testing such as recitation of the alphabet, standing on one leg, and a breathalyzer or blood test. If based on the information collected, the officer believes that the driver is drunk then the officer will arrest the driver and take him to the police station, where a second chemical test will be administered. It is a usual requirement under state law for officers to conduct two chemical tests which measure the BAC level to ensure accuracy and to collect evidence which could later be introduce into court.

However, refusal to take a breath or blood test will not prevent a person from being arrested, if the evidence from the SFST indicates that a person was intoxicated at the time they operated a motor vehicle. State drunk driving laws usually contain some form of statutory provisions that driving while under the impairment of alcohol can be determined based upon on the results of field sobriety testing absent chemical testing. Also, because most states have adopted implied consent laws, refusal to submit to testing can be used as evidence against a person in court, and also trigger a civil penalty which imposes a loss of driving privileges. Once an arrest is made and official charges filed, a person will have to defend their driving while intoxicated charge in court.


If you have been arrested for a drunk driving related offense, you should contact a drunk driving defense attorney immediately to learn about your legal rights and options.

The information on this page is meant to provide a general overview of the law. The laws in your state and/or city may deviate significantly from those described here. If you have specific questions related to your situation you should speak with a local attorney.

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