When you face DUI charges, you will likely wonder about driving under the influence (DUI) and driving while impaired or intoxicated (DWI) offenses and their differences. In California, DUI and DWI have no distinction, but in other states, the two are separate offenses. It is not incorrect to refer to your DUI as DWI in California, although the abbreviation for DUI aligns more with the court terminology for driving while impaired.
DUI Legal Definition
DUI is the abbreviation for driving under the influence. The offense occurs when you operate a car while intoxicated by alcohol, controlled substances, or both. Many states in the country, like California, Nebraska, and Montana, use DUI to mean drugged or drunk driving. Almost 25 states refer to drinking and driving as DUI.
DWI Legal Definition
DWI is the abbreviation for driving while intoxicated or impaired. The acronym is also used to mean drunk or drugged driving. States that call these offenses DWI include New Hampshire and Missouri.
Other Phrases for Impaired Driving
Several other acronyms for impaired driving exist apart from DWI or DUI. Some states use phrases like:
- Operating while impaired or intoxicated (OWI)
- Operating under the influence (OUI)
- Operating a motor vehicle while impaired (OMVI)
Almost all states use OWI, OUI, DUI, or DWI interchangeably. While the court or law enforcement can use one terminology, you are not incorrect in using any other phrase to refer to the offense, as they all have the same meaning.
DUI and DWI Distinction
In New York and Oklahoma, DWI and DUI are two separate offenses. In these states, the phrase that refers to drinking and driving depends on the blood alcohol content (BAC) in your bloodstream during arrest.
The acronym DUI is used in per se DUI when your BAC during driving exceeds the designated limit. DWI is utilized when BAC is within the lawful BAC, but the stopping officer believes you are intoxicated or impaired and cannot drive. With DWI, the court does not focus on the BAC but rather the impairment and whether, during arrest, you could operate the car like a sober person.
In Oklahoma, DUI refers to operating a car with a BAC of at least .08%. In contrast, DWI refers to operating a vehicle when impaired or intoxicated, regardless of the BAC. Therefore, you could face DWI charges in the state even when your BAC is within the designated limit if the stopping officer deems you to be too intoxicated to drive. Nevertheless, you can only face a DUI count if your BAC exceeds the specified limit of .08%.
The punishment for the two offenses in Oklahoma also differs. DWI is the lesser violation, meaning it carries lesser penalties. Prosecutors charge DWI as a misdemeanor, and upon conviction, the legal penalties are as follows:
- No more than half a year of jail incarceration, between $100 and $500 in financial court fines, and thirty days of Driver's License (DL) suspension for a first DWI offense.
- A second DWI violation attracts half a year of jail incarceration, between $100 and $500 in monetary court fines, and six months of DL suspension.
- A third or successive DWI attracts six months of incarceration in county jail, fines between $100 and $500, and at most twelve months of DL suspension.
In contrast, DUI charges are based on BAC levels, and a guilty verdict attracts harsher penalties. The penalties include:
- No more than twelve months of incarceration in county jail, at most $1,000 in court fines, and no more than six months of DL suspension if you are a first-time offender.
- As a second-time offender, the penalties include twelve to sixty months of incarceration, at most $2,500 in court fines, and no more than twelve months of DL suspension.
- The penalties for a third or successive DUI include twelve to one hundred and twenty months of incarceration, at most $5,000 in monetary court fines, and no more than 36 months of DL suspension.
New York adopts the same law. However, the offense is DWI when the BAC exceeds the designated limit. The term used in court and by law enforcement is driving while ability impaired (DWAI) if the BAC is below the designated limit. Still, the stopping officer deems you too impaired or intoxicated to operate. In New York also, the punishment for a DWI offense is harsher than that for DWAI.
With the difference in penalties for DUI and DWI or DWAI guilty verdicts, it is crucial to speak to an experienced DUI attorney to understand the differences in the terminology and how they affect the possible penalties upon a guilty verdict.
Understanding BAC Designated Limit
The general legal or designated limit for drinking and driving is .08%, except for commercial vehicle drivers, whose BAC limit is at .04%. The limit for underage drivers is .02%, although many states have a zero-tolerance rule for underage drivers. Besides, in Utah, the BAC limit is .05%.
BAC is usually tested on the roadside using a breathalyzer device. If the test results in an arrest, a chemical test will be conducted after the arrest, and the results will be used as evidence if the BAC is above the legal limit.
You are discouraged from declining a BAC breathalyzer test because doing so violates the implied consent rule you sign when obtaining your license. Refusal to take the test leads to automatic DL suspension.
California DUI Laws
Impaired driving, whether by drugs or controlled drugs in California, is a DUI. All other terms that define the offense have the same meaning and refer to the same violation. So, DUI and DWI are used interchangeably.
In California, you can face various DUI charges depending on the subsection of VEH 23152 you are alleged to have violated. The type of charge you face depends on the BAC limit and the case’s circumstances.
Standard and Per Se DUI Statutes
The two main drinking and driving statutes for adults in California are VEH 23152(a) and VEH 23152(b). Subsection 23152 (a) prohibits operating a vehicle while impaired or intoxicated, while subsection 23152(b) forbids driving with alcohol of .08% or more in your system. Many drinking and driving arrestees are charged for violating these two subsections. The punishment for the offense hinges on the case’s facts and the driver’s driving record.
Subsection 23152(a) of the California Vehicle Code is the conventional DUI statute. Under the law, if you are under the influence, your mental or motor capacity is impaired, making it impossible to safely operate a car the way an ordinary or ordinary driver would. You face the charge even when the BAC is within the legal limit.
Subsection (b) is the one that prescribes per se DUI. Per the statutes, any driver that operates an automobile with alcohol levels exceeding .08% breaches the law and the limit itself, hence the Latin word “per se." In these cases, the DA does not prove impairment. Instead, they have to demonstrate that the alcohol concentration in your bloodstream was at least .08% when you drove. Whether or not the level of alcohol in your system caused impairment or intoxication is irrelevant to the case. Nevertheless, the BAC limit affects non-commercial vehicle drivers. The BAC limit for CVD is .04%.
Implied Consent Rule
When the DMV issues you with a DL, you agree to implied consent, a rule that makes it mandatory to perform a breath test after a lawful arrest to determine your BAC. If you decline the breath test, you risk the following penalties:
- A mandatory DL suspension, regardless of the outcome of the DUI case in court
- Penalty enhancement upon conviction
The increased penalties for refusing a breathalyzer test are:
- Mandatory jail incarceration for 48 hours and a minimum of nine months instead of three DUI schools for first-time offenders.
- An extra 96 hours of jail incarceration for a second drunk driving violation
- An additional 240 hours of jail incarceration for a third violation
- An extra 18 days for 4th or subsequent DUI guilty verdict
You should know that these penalties are imposed in addition to those for baseline DUIs.
The implied consent rule only concerns breathalyzer tests. The rule does not apply to chemical or blood testing.
California Underage DUI Statutes
California regulates underage drinking and driving through VEH 23136, the zero-tolerance rule, and VEH 23140.
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Zero Tolerance Rule
VC 23136 was enacted in 1994 to control cases of underage drivers operating under the influence. The statute bars anyone under 21 from driving a car if their BAC is at least .01%. Taking a small quantity of alcohol can raise your BAC to .01%, even when the alcohol is from an alcoholic drink and not an alcoholic drink. Apart from alcohol and alcoholic beverages, drugs like cough syrups, homeopathic medicine, and nighttime drugs for treating colds like Nyquil contain alcohol. Taking these drugs or a beverage with alcohol content can raise your BAC to .01%.
You must know that under this rule, BAC is determined through preliminary alcohol screening (PAS) and not using chemical tests like in standard DUI. Preliminary screening involves using a breathalyzer on the arrest site. PASs are mandatory for underage drivers, but for adults, it is optional.
VC 23136 assumes that underage drivers give implied consent to roadside breath tests if the stopping officer observes intoxication signs. Therefore, the DMV will automatically cancel or withdraw the license for twelve months when you decline to undergo preliminary screening as an underage driver. When you lose your DL under these circumstances, you are ineligible for a critical use DL that allows you to drive to restricted areas like school, court, work, or DUI classes.
You ought to know that you cannot be persecuted for multiple DUI violations. You can only be convicted of VEH 23152(a) or VEH 23152(b) and not both offenses, even when prosecuted for violating various statutes. However, the zero-tolerance rule has an exception. When you are underage, and your BAC is above the designated limit, or you are showing signs of intoxication, the prosecutor will charge you with violation of VEH 23136 and other DUI statutes. It is only under the zero-tolerance rule that you can be prosecuted and convicted for multiple DUI offenses.
A VC 23136 violation is considered a civil breach. Therefore, the only punishment for the violation is DL suspension. If you did not have a license during arrest, the DMV will delay your DL eligibility by twelve months.
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Underage DUI with At Least .05% BAC
Per VEH 23140, it is a criminal offense for an individual younger than 21 to drive a car with alcohol contents of at least .05% in your bloodstream. After an arrest for DWI, the officer takes you to the nearest police station for further investigations. Here, they conduct a blood test. If the results show your BAC is above .05%, you will be arrested for a VEH 23140 violation. Police can also use a breath test on a desktop device.
A breach of VEH 23140 is an infraction, meaning that a guilty verdict does not result in jail incarceration. You only pay a monetary court fine of $100 if you are a first-time offender. Additionally, your DL is suspended for twelve months. The court can also send you for drug or alcohol treatment if you are over 18 but under 21.
Declining a PAS test on the roadside or post-arrest test at the station will result in DL withdrawal for at least twelve months. The licensing agency could withdraw your DL for twenty-four to thirty-six months if you have a DUI or wet reckless conviction record.
Although underage drivers do not enjoy the privileges during arrest like adult drivers, they are entitled to legal representation to challenge the charges against them. Fighting the charges starts with requesting a DMV proceeding to prevent automatic DL suspension. The attorney can appear for this proceeding on your behalf, but if you can, you must attend.
If the outcome of the proceeding is unfavorable, the DMV suspends the license, although you can appeal the decision. Alternatively, you can apply for a critical use or restricted DL, but only if the suspension was not for violating the implied consent rule.
Find a Proficient DUI Attorney Near Me
If you face a DUI charge and would like more details on the differences between DUI and DWI, do not hesitate to speak to an experienced DUI attorney. At Jonathan Franklin DUI Attorney, we understand DUI statutes can be complex, with each DUI charge attracting different penalties. Therefore, our attorneys will explain the various acronyms for DUI and forms of DUI charges to help you understand your offense and the best defense strategy. Call us at 323-464-6700 for more details on DUI and DWI in Los Angeles.
