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Elements of Felony DUI/DWI

The elements of the criminal offense of driving under the influence (DUI) and driving while intoxicated (DWI) are universal in most jurisdictions. The elements include the following: (1) that the defendant operated or was in physical control of a vehicle upon a roadway; (2) within the court’s jurisdiction; and (3) the operation occurred while the defendant was either under the influence of an intoxicant or narcotic to the extent that his or her normal faculties were impaired or the defendant was driving with a blood alcohol concentration above a prohibited level.

The terms “driving” or “operating” are used in the statutes of all states and the District of Columbia. In some states, the act required is only “driving,” while in other states, it consists solely of “operating.” Many states have statutes that include both “driving” and “operating.” The Uniform Vehicle Code, along with a majority of the states, provide for physical control of a vehicle along with driving, operating, or driving or operating, as an alternative act. Most of the vehicles involved in arrests for driving under the influence are automobiles, trucks, and motorcycles. All of the statutes use some variation of the term “vehicle” or “motor vehicle.” However, the full scope of what type of vehicle is included varies by state.

The statutes in each state contain legal definitions of intoxication, but the requirements for legal intoxication are not always the same across the states. The statutes are based on the idea that the defendant consumed a sufficient amount of alcohol to meet the state’s legal definition of intoxication. The statutes further focus on the effect alcohol consumption had on the defendant. In order to be convicted, the defendant’s blood alcohol content must be at or above a certain limit, usually 0.08%, or the prosecution must prove that the defendant was so affected by his or her alcohol consumption that the defendant’s physical and mental faculties were impaired.

In many cases, a DUI or DWI is considered a misdemeanor. However, in certain situations the offense will be considered a felony and subject to more severe penalties. Generally, a DUI or DWI offense will be a felony offense if the defendant caused serious injury to another person. Some states, for example California, make the offense a felony offense if the defendant was driving negligently or was violating a traffic law. In most states, the offense becomes a felony if the defendant has previous DUI or DWI convictions within a certain time period. For example, in Alabama, a fourth DUI offense within a five-year period will be considered a felony offense. In Michigan, a third offense in a ten-year period will be considered a felony.

Copyright 2014 LexisNexis, a division of Reed Elsevier Inc.


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