Some States Have DUI Statutes
Video Transcribed: What’s the difference between DUI and DWI in Oklahoma? I’m Tulsa Traffic Ticket Attorney, James Wirth. And we’re talking about driving under the influence, driving while impaired, and what the difference between those are in Oklahoma. So first off, different States have different statutes and some States have DWI statutes.
Some States have DUI statutes. In Oklahoma, the primary offense is DUI. Our neighbor to the South, Texas, their primary alcohol-related driving offense is DWI. Oklahoma however, is one of the few states that actually has both and DWI is a lesser offense to DUI. So what are the differences?
The primary one is if you are stopped and do a breathalyzer test or required to do a breathalyzer test after being arrested and the results come out as a BAC of 0.08 or above then that is DUI in Oklahoma. If it comes out below that you could still be charged with a lesser offense of DWI, say if you blow a 0.06 or 0.07.
And the punishment for the two offenses can be very different. For a first offense conviction for DUI, the sentence is anywhere from 10 days, that’s the minimum to one year. For DWI, it’s zero to six months maximum.
Also, loss of driving privileges is different for a conviction on either one, you automatically lose driving privileges, you lose your driver’s license, but the duration of that loss is different. For a DUI on a first offense, yeah, you lose your license for 180 days. For a DWI it is only 30 days. Also, difference related to the fines involved. For a fine for DUI, it’s up to a thousand dollars for a fine for DWI, it’s up to $500. In any case, you want to avoid getting into any of that kind of trouble, but that gives you an idea of what the differences are.
Now, as far as what’s required to be proven, the easiest way for the state to prove a DUI is if they have a blood alcohol test, and if it’s 0.08 or above by statutory definition, that is DUI if they were driving. It’s not as simple for a DWI, also for DUI, you’re not required to have the BAC in order to prove that. If they didn’t do a test or you refused the test, they can still convict on that. And the jury would have to find these elements.
So for driving under the influence, the elements that have to be proven by the State, that the jury has to find or the judge, if it’s a bench trial, is each of these beyond a reasonable doubt. The first one being driving, that you were driving. Second, that you had a blood or breath alcohol concentration of 0.08 or more, or that you were driving while under the influence of alcohol. And that’s it. They have to prove they were driving under the influence of alcohol so how do you prove that? It’s going to be somewhat in the minds of the jury based on the evidence.
Normally they would talk about unsteady on your feet. The breath had the odor of alcohol about the person, you know, glazed red eyes. They do a horizontal gaze nystagmus test where the officers will say that they’re experts. They shine this light, tell you to follow it. And if your eye jumps around while you’re following it, that’s evidence of intoxication. All of these things, but that’s what’s required to be proved that you are under the influence of alcohol on a public road. And that the test was administered within two hours of it based on the test.
So then the jury instructions for a DWI just requires driving a motor vehicle with impaired ability due to alcohol or other intoxicating substance. So those are the main difference when it goes to the jury, is the jury has to decide they under the influence of alcohol or they driving with impaired ability.
And those are not really further defined where you don’t have the BAC level that’s administered and admitted into court. So as far as the evidence, that can be very much in the minds of the jury, what does it mean to be an impaired ability? What does it mean to be under the influence of alcohol? But if you’re charged with that, sometimes it makes sense to request an instruction on the lesser offense of driving while impaired. In any case, if you’re dealing with either of these, they both are criminal offenses, they both for a conviction result in loss of driving privileges.
One additional difference is that the DUI is a predicate to a felony. If you get a second DUI, the second one could be charged as a felony. Whereas for DWI, it’s not the case. It’s never a felony. If you’re dealing with these circumstances, have questions related to this, you’re going to want to talk to an attorney about your specifics. You want to do so confidentially. If you want to get that scheduled with somebody in my office you can go online to makelaweasy.com.