Most states say that DUI/DWI is a criminal offense, not a traffic infraction. A DUI offense is most often charged as a misdemeanor.1
Misdemeanors are generally crimes punishable by no more than one year in county jail.2 They are less severe crimes than felonies, which are offenses that are punishable by more than one year in custody.
What are typical penalties?
Note that the specific penalties for a drunk driving conviction will largely depend on:
- the facts of your case, and
- the laws of the state in which you are convicted.
A first offense of drunk driving or driving with a blood alcohol content (BAC) of 0.08% or greater will often result in:
- custody in jail for up to six months or a year,
- fines,
- a driver’s license suspension or revocation by the DMV,
- probation,
- enrollment in a DUI school,
- community service, and
- installation of an ignition interlock device (IID).3
Note that many states have a “lookback period” or a “washout period” during which any prior drunk driving convictions will increase the penalties for future convictions.
For example, let’s say you live in a state with a seven-year lookback period. If you get two DUIs in seven years, the second will be punished harsher than the first. However, if your prior conviction was more than seven years ago, the new case will be charged as only a DUI-1st.4
Is DUI ever prosecuted as a felony?
Many states say that a prosecutor can charge a drunk driving case as a felony DUI in three instances. These are when:
- you were convicted of prior DUIs,
- you drove a motor vehicle while intoxicated and caused a person to suffer physical injury, or
- you drove under the influence and caused someone’s death (often called vehicular manslaughter).
Depending on the state, having a child passenger could make drunk driving a felony or at least increase the misdemeanor penalties.
Felony penalties typically carry at least a year in prison, thousands of fines, and a long license suspension. Though some states have programs where you can do rehab in lieu of some of your prison time.
Will a DUI give me a criminal record?
Because drunk driving is a crime, a conviction will result in you having a criminal record.
A “criminal record” is essentially a record of your criminal history. It is sometimes referred to as “RAP sheet.”
A RAP sheet will show all the criminal offenses you have been convicted of. Some jurisdictions also say that traffic violations can go on your criminal record.
Criminal records are generally discoverable by employers when they perform a background check.
Background checks will typically disclose such things as:
- past criminal convictions,
- negative information on a credit report, and
- negative housing information (for example, prior evictions).
Most jurisdictions say that a DUI conviction will remain on your criminal record for the rest of your life.
Can an expungement help?
Yes. An expungement is when the court orders the state to destroy your criminal record.5
Some states offer record seals instead of expungements.
A record seal means that your criminal history gets hidden from most entities instead of destroyed.
If your criminal record is expunged or sealed, the result is that you do not have to mention it on a job application or in a job interview.
Is drunk driving ever just an infraction?
In a few states, underage drinking and driving is treated as only a traffic infraction and therefore not a crime.6 There are also some states that have a lesser drunk driving crime called DWAI – driving while ability impaired – that are only infractions.7 Otherwise, it is rare for a DUI to be prosecuted as a non-crime.8
Do I need an attorney if I am arrested for DUI?
Yes. You should obtain legal advice from a defense lawyer or DUI lawyer if you were charged with drunk driving .
A criminal attorney or law firm can help in several important ways if you are facing criminal charges. For example, an attorney can:
- help you get out of jail following an arrest,
- attend court dates on your behalf,
- negotiate with the prosecutor to arrive at a favorable plea deal (for example, getting a DUI charge dropped to a reckless driving charge), and
- help you contest a criminal charge with a legal defense.
Ultimately, having an attorney is your best bet for getting a case dismissal or favorable plea bargain.
What are the best defenses to a DUI charge?
Note that a few common legal defenses to DUI charges include a lawyer showing that:
- you were driving below the legal limit (or with a blood alcohol level below 0.08%),
- you were not “under the influence,”
- the police made an error in issuing a breathalyzer test or conducting field sobriety tests, and
- the police stopped you without probable cause.
Note too that a criminal defense lawyer can help you get an expungement or record seal if you were found guilty of drunk driving .
In our experiences in helping clients, you will more effectively navigate the court process and achieve better case results when represented by a DUI attorney.
Legal References:
- See, for example, Revised Code of Washington 46.61.502, Utah Code 41-6a-502, California Vehicle Code 23152 VC.
- See, for example, 730 Illinois Compiled Statutes 5/5-4.5-55.
- See, for example, Florida Statutes 316.193.
- See, for example, Nevada Revised State 484C.400.
- Black’s Law Dictionary, Sixth Edition – “Expungement of record.”
- See, for example, Indiana Code 9-30-5-8.5, California Vehicle Code 23140 VC.
- See, for example, New York VTL 1192.1.
- See, for example, N.J.S.A. 39:4-50(a). In New Jersey, DWI (Driving While Intoxicated) is a traffic offense, not a misdemeanor or a felony, even though it does carry jail.
