You see the signs everywhere – especially now that we have digital warning signs.

  • Drink, Drive, Go to Jail
  • Buzzed Driving is Drunk Driving

Those are catchy phrases. Unfortunately, they don’t accurately state what the law is.

Drink, Drive, Go to Jail suggests that if you have anything to drink and then drive, you are guilty of driving while intoxicated. That could not be farther from the truth. At least as of 2016 IT IS NOT ILLEGAL TO DRINK AND DRIVE. Of course that assumes you’re over twenty-one – if not, it is a true statement.

The other statement – Buzzed driving is drunk driving – is a little closer to what the law is, but it’s still not accurate.

So what is the legal definition of driving while intoxicated?

The offense of DWI can be established in two ways:

  • A person has lost the normal use of their mental and physical faculties based on the consumption of alcohol, or
  • A person’s blood alcohol content (BAC) is over .08 at the time they were operating a motor vehicle.

Whether or not you have lost the normal use of your mental and physical faculties is a subjective determination. You might wonder how you can prove someone has lost the normal use of anything, without knowing what that person’s normal is. The court’s recognized that’s a problem, so normal is defined by what is generally considered normal. Obviously that leaves a lot of room for interpretation, since my idea of normal may be drastically different from yours.

The other way to establish the offense generally requires a blood or breath test. The legal test for intoxication - .08 – clearly requires some amount of alcohol more than a single drink. It’s also important to recognize that it’s not necessarily the actual reading, since that is not taken until sometime later – either at the jail or the hospital. There are a number of factors that go into deciding whether the number at the time of driving would be higher or lower, and that might be a significant issue when the reading is close to .08.

The best way to avoid getting a DWI is to not drink and drive. However, sometimes that’s not feasible. While you always the risk of getting arrested, just because you drive after drinking doesn’t mean you are guilty of driving while intoxicated. You are only guilty of you drive while intoxicated. That means the State has to prove more than you were drinking.

Don’t be fooled by the catchy phrases. If you are arrested, that doesn’t mean you are guilty. If you’ve been arrested and would like to see if you might have a defense, fill out our free Do I have a Defense form, and get a free written evaluation.

Walter Reaves
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Criminal Defense Attorney Walter Reaves has been practicing law for over 35 years.
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