DUI and DWI Overview


States call drunk driving driving under the influence (DUI), driving while intoxicated (DWI), or operating under the influence (OUI). Most driving offenses quality as violations, but driving under the influence represents one of the most serious motor vehicle offenses because driving under the influence causes more than one-third of all traffic fatalities. DUIs and DWIs carry heavy penalties.

There are essentially three types of drunk driving laws.


    Every one of the 50 U.S. states makes DUI or DWI a crime. DWI, and DUI are usually defined as driving while impaired by alcohol or other legal or illegal substances.

  2. BAC OF 0.08% OR HIGHER

    In all states it is also a crime to drive with a blood alcohol concentration (BAC) of 0.08% or higher, regardless of whether one’s driving was actually impaired or affected.


    Certain types of DUIs can be charged as a felony, a serious crime that usually results in a prison sentence.

What “Driving Under the Influence” Means

A DUI law may prohibit driving under the influence of an intoxicant including driving under the influence alcoholic beverage, driving under the influence of a drug, and driving under the combined influence of an alcoholic beverage and any drug, regardless of blood-alcohol concentration.

To prove the guilt of a person charged with driving under the influence (DUI, DWI, OUI), the state (i.e. County Attorney in most states) must prove the elements of the crime:

  • The vehicle was operational (i.e. the keys were in the ignition), and
  • The accused was behind the wheel, and
  • The accused was “under the influence” in that their ability to drive safely was affected to an appreciable degree by having drunk an alcoholic beverage, taken a drug, or combined alcohol and drugs. (Note that some people’s driving can be impaired after having consumed even a relatively small amount of drugs or alcohol.)

What “Driving While Blood Alcohol Is 0.08% or Higher” Means

In every state, a person with a blood-alcohol level (BAC) of 0.08% or higher is presumed to be under the influence of alcohol. Many states have taken this one step further and flatly prohibit anyone from driving with this much alcohol in their blood, whether or not driving is impaired.

To prove a person is guilty of the offense of drunk driving with a BAC of 0.08%, the following elements must be proven:

  1. The person was behind the wheel of a vehicle with the key in the ignition, and
  2. While the person was under the combined influence of alcohol and any other substance
    which impairs one’s driving ability or the person had alcohol or certain controlled substances were in the driver’s blood at a concentration of 0.08% or greater while driving. (Some states set the limit even lower for underage drivers. Kentucky sets the alcohol concentration of 0.02 if the person is under the age of twenty-one
    (21) – 189A.010(1)(f) )

In states with this type of law (like Kentucky), during a trial the jury will usually be given a choice of finding a defendant guilty of driving under the influence and / or driving with a BAC of 0.08% or higher.

What does this mean?

The accused may still be found guilty of driving under the influence even if the defense convinces the jury the driver was driving just as safely and well as someone who had nothing to drink.

How is it possible for the jury to find the accused guilty of operating under the influence if the accused was driving just as safely and well as someone who had nothing to drink.?

The jury may find the accused guilty if the jury finds that the accused was in the driver’s seat, the keys were in the ignition, and the person either …

  1. was under the combined influence of alcohol and any other substance which impairs one’s driving ability, or
  2. had alcohol or certain controlled substances were in the driver’s blood at a concentration of 0.08%.

The penalty, in most cases, is the same whether the defendant is convicted of one or the other, or both.

What a Felony DUI or DWI Means

Although some DUIs (first offenses, for example) are usually treated as misdemeanors, under certain circumstances the crime can be bumped up to a felony, which is far more serious.

If a driver kills or injures someone as the result of driving while under the influence of alcohol (or having a blood alcohol level higher than 0.08% or more in those states that punish this separately), the person can be found guilty of a felony and could go to state prison for years. Prior convictions for misdemeanor DUI or over-0.08% will usually result in a longer prison sentence.

In some states, a third or fourth DUI or DWI is by itself enough to get a driver charged with a felony. In Kentucky, it is the fourth DUI or DWI. It won’t matter whether anyone was killed or injured as a result.

Anyone accused of a felony DUI or DWI should contact a DUI defense lawyer experienced with handling DUIs or DWIs; no one should ever attempt to handle a felony charge without a DUI defense attorney.

Finding a Good DUI Lawyer

One good way to find a lawyer is to ask friends, acquaintances, or other lawyers and attorneys for referrals and then interview the candidates. I

n addition, Nolo provides a personalized Lawyer Directory with information about each DUI lawyer’s experience, education, and fees, and perhaps most importantly, the DUI defense lawyer’s general philosophy of practicing law.

By using Nolo’s directory you can narrow down candidates before calling them for a phone or face-to-face interview. Of course, Law Offices of John Schmidt & Associates is available for legal advice on DUI and DWI defense today. Call us now!


If you are in Kentucky, then I’d recommend that you call my office at 502-587-1950 or 502-509-1490 to schedule a consultation if you have an agreement, parenting schedule or court order to discuss your options.

Leave a Reply