Almost everyone knows what a DUI is—it stands for driving under the influence of alcohol. However, most people charged with a DUI are surprised to see that, usually, they are also separately charged with DUI per se and DWI. This summary should help explain the differences between these three charges.
Keep in mind that the specific evidence needed to prove all three charges varies with each case, so it is important to consult an attorney to look at your facts. It is always possible that the police officer messed up technical requirements, and, if proven, then perhaps some, or even all, of the evidence will be excluded from trial (meaning that it cannot be used against you).
DUI is more serious than DWI. It is a misdemeanor, and the defendant faces a maximum penalty of one year in jail and/or a fine up to $1,000. It also has an administrative penalty of up to twelve points from the MVA, which could result in the revocation of the defendant’s driver’s license.
To be convicted of a DUI, the State must prove that the defendant drove a vehicle prior to or while drinking alcohol and that the alcohol he or she consumed “has substantially impaired the person’s normal coordination.” If the defendant’s Blood Alcohol Content (BAC) is .08 or more, the jury or judge may infer that the defendant was substantially impaired by alcohol. If there was no blood or breath test, the State can prove this by other evidence, such as a statement by the defendant that he or she consumed alcohol, an open alcohol container in the car, poor performance on the field sobriety test, or the odor of alcohol on the defendant’s breath or person.
One thing to keep in mind: you have a Fifth Amendment right to remain silent and not incriminate yourself—you do not have to answer the officer’s questions when you are pulled over, no matter what the officer says otherwise. You also have the right to contact a lawyer—particularly before deciding whether to submit to a blood or breath test.
DUI per se
The penalties regarding jail times, violations, and MVA points are the same for DUI per se as DUI.
The difference between DUI and DUI per se is that, with DUI per se, the State is essentially relieved of the burden of proving that the defendant was “substantially intoxicated” by showing a BAC of .08 or more. DUI per se can never apply if the defendant’s BAC was less than .08. On the contrary, a person may get a regular DUI charge with a lesser BAC level if he or she otherwise showed substantial impairment of coordination. Keep in mind that there are other ways to fight a DUI per se charge; for example, the Breathalyzer equipment may not have been working properly, the operator could have violated a technical requirement in the statute, the defendant may have burped and increased his or her BAC just before blowing, etc. A DUI attorney could also try to negotiate a DUI or DUI per se charge down to a DWI charge, as explained below.
A DWI, driving while impaired by alcohol, is a less serious charge than a DUI. Like a DUI, a DWI is a misdemeanor; however, a defendant charged with a DWI faces two months in jail and/or a fine of up to $500. Additionally, he or she may receive up to an eight-point penalty from the MVA, which could result in a suspension of the defendant’s license.
To be convicted of a DWI, the State must prove “that alcohol has impaired the person’s normal coordination to some extent.” This is easier to prove than a DUI because, with a DUI, the alcohol has to “substantially” impair coordination, versus, with a DWI, it only has to impair coordination “to some extent.”
If a defendant had a BAC of .07 or more, this is considered prima facie evidence that he was impaired. In other words, it is accepted as a fact unless an attorney can prove otherwise. This takes the burden off of the State to show impairment for a DWI charge. If the BAC was .05-.07, there is no presumption. Finally, if the BAC was less than .05, there is a presumption that the defendant was not driving while impaired or under the influence. The statute creates these presumptions, and a DUI attorney may be able to successfully argue that they are or are not true in a particular case.