The answer to that question varies by state. In some states, the offense is called Driving Under the Influence (DUI) or Driving While Intoxicated (DWI). In Indiana, however, the offense is termed Operating a Vehicle While Intoxicated (OWI) and it actually contains several different offenses.
The first of these is Operating a Vehicle While Intoxicated, a class C misdemeanor. The elements of the offense are (1) operating (2) a vehicle (3) while intoxicated, which is defined as the impairment of mental and physical faculties by alcohol, drugs, or a combination of the two. It carries a maximum jail sentence of sixty days, and a fine of $500.00.
This offense can be enhanced to the class A misdemeanor of Operating a Vehicle While Intoxicated, Endangering a Person, by the additional element of operating the vehicle in such a manner as to endanger a person. The endangerment element is general, based upon the manner of vehicular operation. A class A misdemeanor is punishable by up to a year of imprisonment, and/or up to a $5,000.00 fine.
The legal limit in Indiana is .08. This is technically called an Alcohol Concentration Equivalent (ACE). It is a class C misdemeanor to operate a vehicle with a breath or blood alcohol level (ACE) of .08, but no higher than .14. For punishment of a class C misdemeanor, see OWI above.
If a vehicle is operated with a breath or blood alcohol level (ACE) of .15 or greater, it becomes a class A misdemeanor, punishable as described above.
A second offense OWI of any sort within five years of conviction for a prior OWI offense of any sort, enhances the second offense to a class D felony, punishable by six months to three years imprisonment, and/or a fine of up to $10,000.00.
If an accident is involved resulting in serious bodily injury the offense is a class D felony. If a fatality results, it is a class C felony, punished by three to eight years’ imprisonment, and/or up to a $10,000.00 fine.
Serious bodily injury and death offenses are further enhanced to greater felony levels, with seriously enhanced imprisonment, based upon the breath or blood alcohol level and/or presence and timing of prior offenses.
The legislature has imposed mandatory jail time for second and subsequent offense convictions. Drivers’ license suspensions begin immediately with the case being filed; in some circumstances a hardship work license may be available. In many cases it is not.
In addition to these basic offenses, there are OWI offenses pertaining to operators with commercial drivers’ licenses (CDL), and to underage drinkers, and habitual offender statutes adding years of imprisonment or license suspension to convictions.
As with any criminal charge, the State bears the burden of proving the charge against you. Because of an increased political and public intolerance towards those who drink and drive, defending an OWI charge has become more complicated, and the penalties upon conviction have become more severe.