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DUI Elements

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What are the Elements Required to Prove DUI?

In order to prove a person was driving under the influence (DUI), the state must usually prove the following DUI elements:

  • Driving or operating a motor vehicle on a highway or road,
  • While under the influence of alcohol

However, these elements may be subject to variation according to the DUI laws of each individual state.  For example, some states also include a “per se intoxication” DUI offense, which makes a person guilty of DUI if they drive on a road while their blood alcohol content is .08 or higher.  Other states require the person to be visibly impaired before they issue a DUI.

Also, the DUI elements in some states may differ regarding the terms “driving”, “operating”, or “being in control of a vehicle”. 

Do I Have to be Driving My Car in Order to Get a DUI?

Again, some states require a defendant to be actually driving a vehicle in order to be convicted of drunk driving.  However, some states use the terms “operating a motor vehicle” or “being in physical control” of a vehicle within the definition of DUI elements.

This distinction in terms is significant- it can make the difference between whether a person is convicted of DUI or not.  For example, in some states, a person who is sitting in their car with the key in the ignition is considered to be “in physical control” of the vehicle.  This is true even if the car is not moving or if the engine has not even been started.  Thus, a person might be convicted of a DUI if they are in such a position while under the influence of alcohol. 

It may also make a difference whether the car is situated on a public road or highway versus a private area such as a driveway.  An intoxicated person might be charged with a DUI if they use their car as a shelter while parked on a public road.  On the other hand, a drunk person who is sitting in their car parked on their own driveway isn’t likely to be charged with a DUI (again, this may vary according to jurisdiction). 

What Type of Evidence is Used When Proving DUI Elements?

In order to prove DUI elements, the state may consider various other factors besides a person’s blood alcohol content.  For example, the court may consider DUI evidence such as:

  • Photographs or videotapes of the defendant at the scene of arrest
  • Witness testimony regarding the defendant’s driving and/or acts of drinking
  • Police reports regarding the defendant’s behavior
  • The defendant’s overall appearance at the time of arrest (i.e., bloodshot eyes, generally disheveled clothes, and the smell of alcohol on the breath)

Are There Any Defenses to DUI Charges?

Yes- if the state cannot prove any of the DUI elements listed above, the person cannot be found guilty of DUI.  For example, if the person was not driving or in physical control of the vehicle, they might not be found guilty.  Or, if the person’s blood alcohol content was within legal limits, it may serve as a defense to DUI charges.

On the other hand, it is not a defense to DUI charges if a person doesn’t appear to be intoxicated.  As mentioned, many states have per se DUI charges in which a person can be charged if their blood alcohol is at or above .08%.  Thus, if a person’s does not appear to be intoxicated, yet their blood alcohol is .10%, they can still face DUI charges.

Do I Need a Lawyer for Assistance with a DUI?

If you are facing DUI charges, or are unsure of the DUI laws in your area, you may wish to contact a lawyer for assistance.  An attorney can help you understand the elements required to prove DUI in your jurisdiction.  

Photo of page author Ken LaMance

, LegalMatch Law Library Managing Editor and Attorney at Law

Last Modified: 11-09-2016 05:16 PM PST

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