1.      Operates

2.       ANY VEHICLE

3.      on any street, highway, or public vehicular area within the state

4.      after consuming enough alcohol to have an alcohol concentration of .08

Second, the statute makes it a crime to 1)operate 2) any vehicle 3)on any street or highway within the state,4)after consuming a sufficient quantity of an impairing substance to cause the driver to lose the normal control of their bodily or mental faculties, or both, to such an extent that there is an appreciable impairment of either or both of these faculties.

In short, this is where the officer will need to describe factors that he uses to form the opinion that the driver is drunk or high.

Third, a DWI can be proven if the driver has ANY amount of a Schedule I controlled substance or its metabolite in their blood or urine. Schedule I includes substances such as Opiates, Heroin, MDMA, Peyote, GHB, Methaqualone, and Extacy, among others. If a drug test determines that any of these substances are in the drivers system, in any amount, this element of the crime is met. 

For non-habitual cases, the judge will consider certain aggravating factors and mitigating factors, and use these to assist him in determining the level of your DWI.

The factors the judge will consider are:

Grossly Aggravating Factors- I like to think of these as “really bad things”

·         Prior conviction involving impaired driving occurring within 7 years of the date of offense of the present charge

(Each prior conviction is a separate grossly aggravating factor)

·         Driving while revoked because of an impaired driving revocation

·         Serious injury to another caused by the defendants impaired driving

·         Special- Driving while

o   a “child” under the age of 18,

o   a person with the mental development of a child under 18,

o   or a person with a physical disability preventing unaided exit from the vehicle

is in the vehicle. (This factor, if present, makes the offense an automatic Level I)

Aggravating Factors- Bad things

·         .15 or greater BAC

·         especially reckless or dangerous driving

·         negligent driving that led to a reportable accident

·         driving while license revoked (but not for DWI)

·         Bad driving record-

o   Two or more motor vehicle offenses for which at least 3 points are assessed in the preceding 5 years or

o   One or more prior DWI’s more than 7 years before date of offense

·         Speeding to elude apprehension

·         Speeding 30 mph or more over the limit

·         Passing a stopped school bus

·         Any other factor the judge finds aggravates the seriousness

Mitigating Factors- Good Things

·         Slight impairment solely from alcohol, resulting in a .09 or less

·         Slight impairment solely from alcohol with no chemical analysis being available

·         Safe and lawful driving except for the impairment

·         A safe driving record- no violations resulting in 4 or more points in the preceding 5 years

·         Impairment resulting from a lawful prescription drug, taken as prescribed

·         Voluntary submission to an alcohol assessment, and voluntary participation in the treatment recommended.

·         Completion of assessment, classes recommended, and abstenance from alcohol for at least 60 days, as proven by a continuous alcohol monitoring system

·         Any other factor that the judge finds mitigates the seriousness of the offense.

Level 5- Mitigating factors outweigh aggravating factor (more good than bad)

Level 4-Mitigating factors and aggravating factors are roughly equal (good=bad)

Level 3-Agravating factors outweigh mitigating factors (more bad than good)

·         Fine- up to $1000

·         Jail sentence- 3 days to 6 months

·         The active sentence may be suspended if-

o   The defendant  serves 72 hours in jail or

o   The defendant performs 24 hours community service or

o   Any combination of these

o   The defendant must get an alcohol assessment and comply with recommended treatment.

·         Any other lawful condition of probation

Level 2- One Grossly aggravating factor

·         Fine- up to $2000

·         Jail sentence-7 days to 12 months

·         The active sentence may be suspended, but a minimum of 7 days must be served in jail, the defendant must obtain an alcohol assessment and comply with the recommended treatment

·         The judge may impose a requirement that the defendant have a continuous alcohol monitoring device for a period of 30 days up to the maximum term of probation.

·         Any other lawful condition of probation

Level 1-Two grossly aggravating factors, or having a person under 18, disabled, or developmentally delayed in the vehicle with the driver.

·         Fine- up to $4000

·         Jail sentence- 30 days to 24 months

·         The active sentence may be suspended, but a minimum of 30 days must be served in jail, the defendant must obtain an alcohol assessment and comply with the recommended treatment

·         The judge may impose a requirement that the defendant have a continuous alcohol monitoring device for a period of 30 days up to the maximum term of probation.

·         Any other lawful condition of probation

Level 1A- 3 or more grossly aggravating factors

·         Fine- up to $10,000

·         Jail sentence- 12 months to 36 months

·         Not eligible for parole, but the last 4 months of the active sentence will be out of custody and on an alcohol monitoring system device.

·         The active sentence may be suspended, but a minimum of 120 days must be served in jail, a continuous alcohol monitoring device must be worn for at least 120 days up to the maximum term of probation, and get an alcohol assessment and comply with the recommended treatment

·         Any other lawful condition of probation

Felony DWI- 3 prior convictions in the 10 years prior to the offense date of the current charge.