Elements of OUI/OWI (Operating Under the Influence or While Intoxicated)

There are various statutory formulations used to describe the requisite elements of the criminal act of drunk driving. In a number of states, the requisite act consists solely of ”operating.” These laws are known by the acronyms, OWI (driving while intoxicated) or OUI (driving under the influence).

In general, the OWI/OUI statutes include the following elements:

Most jurisdictions allow proof of the offense by showing either impairment (subparagraph a), or a high BAC level (subparagraph b). Statutes making it an offense to merely operate a motor vehicle with a BAC of .08 or greater while under the influence of drugs and/or alcohol is considered a strict liability offense, i.e., no proof of criminal intent is necessary for a conviction.

Several states’ statutes use the term "operating" by itself. Other statutes encompass both "driving" and "operating" as the requisite act. A majority of states and the District of Columbia, which follow the Uniform Vehicle Code, provide for "physical control" of a vehicle, in conjunction with "driving," "operating," or "driving or operating," as an alternative requisite act.

These basic statutory formulations (”to drive,” ”to operate,” and ”to be in actual physical control”) create disparate results across the country in cases in which an intoxicated individual is found behind the wheel of a nonmoving vehicle. In general, courts accord the term ”to operate” a broader meaning than the term ”to drive,” as “operating” encompasses more than driving the vehicle. The concept of ”operating” focuses on setting the operative machinery of the vehicle in motion, such as turning the ignition key to start the motor, as opposed to actually moving the vehicle. The absence of a requirement that the vehicle actually be in motion makes the element of ”operation” much easier to prove than the element of ”driving.” Thus, even if the vehicle is stopped and not running, someone can be charged with OWI. The same distinction applies to OUI. A driver, although asleep in the back seat, can be arrested for OUI because he was intoxicated.


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