Proving a DUI at Trial
Read about the elements that the prosecution must prove to get a DUI conviction at trial.
This article gives an overview of what the prosecution needs prove to get a DUI conviction. For more detailed information about the DUI laws in your state, see our state-specific pages.
Elements of a DUI Charge
Generally, the prosecution needs to prove two elements for a jury to find you guilty of a DUI charge. The prosecution must show that you were:
- driving or operating a vehicle, and
- under the influence.
Some states also require the prosecution to prove that the defendant was driving on a public—rather than private—road.
If the prosecution can prove these elements beyond a reasonable doubt, chances are the jury will convict the defendant.
The “Driving” Element
In many states, you can get a DUI even if you weren’t actually driving. Though most of the states that don’t require actual driving still call the crime “driving under the influence” (DUI) or “driving while intoxicated” (DWI), prosecutors in these states can prove the “driving” element by showing the motorist was “operating” or “in actual physical control” of a vehicle. In other words, proof that the driver was behind the wheel with the car in motion is sufficient—but not required—to prove the driving element.
State laws vary on what exactly it means to be operating or in actual control of a vehicle. But typically, the judge or jury deciding the case will look at a variety of factors when deciding whether the prosecution has proven the element. These factors are ordinarily based on police observations at the scene of the defendant’s arrest and might include whether:
- the defendant was sleeping or awake
- the defendant was in the driver’s seat
- the car keys were in the defendant’s possession
- the car’s motor was on, and
- the defendant’s car was parked in a way that posed a danger to other motorists.
Some states, however, require proof of actual driving for a DUI conviction. For example, in California, a defendant can be found guilty of a DUI only if the prosecution proves “volitional movement of a vehicle.” (Mercer v. Dept. of Motor Vehicles, 53 Cal. 3d 753 (1991).)
The “Under the Influence” Element
To prove a driver was under the influence, the prosecution generally has two options:
- proving the driver had a blood or breath alcohol concentration (BAC) of .08% or more (an “per se” DUI), or
- showing that the motorist was actually impaired by drugs or alcohol.
Proving BAC is usually easier than showing impairment. However, it’s common for prosecutors to file two charges in a DUI complaint—one based on impairment and a second alleging excessive BAC. By filing two charges—though perhaps only one might stick—the prosecution can maximize their chances of getting a conviction.
The “Public Roadway” Element
Some state laws prohibit driving under the influence anywhere in the state. In these states, you can get a DUI regardless of where in the state you were driving. In other states, however, drunk driving is illegal only in places that are “open to the general public.” (See Mich. Comp. Laws Ann. § 257.625.) Places open to the public not only includes public properties like city streets and state highways, but also privately owned properties like shopping mall parking lots.
(To read more about the public roadway element, see Can I Get a DUI If I Was Driving on Private Property?)
Talk to a DUI Attorney
The consequences of a DUI conviction are serious, and DUI laws vary by state. If you’ve been arrested for driving under the influence, get in contact with an experienced DUI lawyer in your area. A good DUI attorney can analyze the facts of your case and tell you how the law of your state applies.