The Two Elements Of The Dwi And Dui

The first element of DUI or DWI is "driving" or "operating." This language describes the level of control a person must have over the vehicle. In many states the vehicle does not need to be moving, and a person sitting behind the wheel of a car, engine running or not, can be convicted of driving or operating the car. Likewise, courts have found that a person steering a car being towed by another car could be tried for the crime of drunk driving. Passengers are generally not considered drivers or operators of vehicles, although they can be if they grab the steering wheel.

The definition of vehicle is broader than you may think. A vehicle can be any device for transporting people or goods. A motor vehicle requires that a motor power a device, these definitions encompass cars, trucks, and motorboats. A question can sometimes arise when the vehicle is inoperable and a distinction is made between the vehicle's being merely immobile and being inoperable. Another element of the crime is location. Earlier statutes sometimes included explanatory phrases such as "on the public highways" which led courts to conclude the crime did not apply to persons who drove on private property, including parking lots. Now most statutes now simply require proof that the crime took place within the state.
The basic thrust of the drunk-driving laws is that they are to prevent operation of a powerful machine when a person is too intoxicated to have adequate control of the machine. The intoxication element is proved by one of two methods:

(1) Showing a certain level of blood alcohol or illegal drugs, or (2) showing the person was impaired. The first method does not rely on anyone's observations of the defendant's conduct; instead it relies on the results of blood or breath tests. A common statutory scheme requires a person suspected of being drunk or drugged while driving to give a sample of their breath or blood for testing. This so-called implied consent comes about because the statute provides for it when you get a driver's license. Once the sample is given, its analyzed by a machine measuring the concentration of alcohol in a person's blood. The most common limit for blood-alcohol content is .10 percent, although in recent years there has been a push to lower that limit to .08 percent. Any person who tests over the limit is legally intoxicated. The only way to challenge this charge is to show there was some failure in the test procedure, such as a malfunctioning machine, improper sampling, foreign substances in the mouth (in the case of a breath test), or improper preservation of the evidence.

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