DUI vs DWI: what the two terms actually mean

People arrive at this question for one of two reasons. Either they have just been charged and want to know whether they got the worse of the two, or they read something online and cannot tell whether it applies where they live. Both are answerable, but only after one thing is clear: impaired driving is state law, and there are fifty-one separate answers rather than one.

Breath testing is where the acronyms stop mattering and the numbers start. Every state now uses 0.08 percent as a per se limit, whatever it calls the offense — and Utah uses 0.05.

The short answer

DUI stands for driving under the influence. DWI stands for driving while intoxicated, or in a few states driving while impaired. In roughly forty of the fifty states, only one of those terms exists in the statute book, and it names the entire offense. If you are charged in California it is a DUI because that is what the California Vehicle Code calls it. If you are charged in Texas it is a DWI because that is what the Texas Penal Code calls it. Nothing else follows from the choice of word.

In a handful of states, both terms appear and they point at two different offenses. In those states the difference is real, and getting it backwards can lead you to read the wrong penalty range for your own case. Those states are the reason this page exists.

Which term your state uses

The table below is limited to states where the term was checked against the statute itself or against the state's own transportation agency. States are omitted rather than guessed at.

Four of the biggest DUI states — California (Vehicle Code § 23152), Florida (Fla. Stat. § 316.193), Georgia (O.C.G.A. § 40-6-391) and Virginia (Va. Code § 18.2-266) — use DUI as the operative term. Those citations were not re-read against the official legislative text during this review, so they are listed here as orientation rather than as verified quotations, and they will be added to the table above once each has been checked at source.

The states where both exist as separate offenses

Three patterns account for almost all of the genuine two-offense states.

Split by severity: Maryland

Maryland charges DUI and DWI as two offenses at two different levels of seriousness, and it is the only widely-cited state where the intuitive ordering is wrong. Details in the next section.

Split by age: Texas and Arkansas

In Texas, DWI under Penal Code § 49.04 is the general offense and applies to every driver, including drivers under 21. Separately, § 106.041 of the Alcoholic Beverage Code creates “driving under the influence of alcohol by a minor,” which applies only to drivers under 21 and requires nothing more than any detectable amount of alcohol — no BAC figure, no proof of impaired faculties. It is a Class C misdemeanor, the lowest criminal classification in Texas.

The statute is unusually explicit that these are independent offenses rather than degrees of one: § 106.041 states that the minor's DUI offense is not a lesser included offense of the Penal Code intoxication offenses. In practice a prosecutor can charge a nineteen-year-old with either, or both, depending on what the evidence supports.

Arkansas divides them the same way: DWI under Ark. Code § 5-65-103 for drivers 21 and over, and an underage DUI at a 0.02 percent threshold in a separate chapter. The exact underage citation was corroborated across secondary sources during this review but not read at the official Arkansas code site, so it is noted here as Arkansas sets the underage limit at 0.02% under Ark. Code § 5-65-303. A first underage offense carries a $100–$500 fine and a 90-day suspension; a second adds community service and a one-year suspension. It is an unclassified misdemeanor, separate from the adult DWI statute.

Split by degree of impairment: New York and Colorado

Neither state calls its lesser offense a DUI. Both call it DWAI, and they mean different things by it. That is the subject of the section after next.

Maryland, where the order is reversed

If you remember one thing from this page, make it this one. Maryland's Transportation Article § 21-902 contains both offenses, and the order is the opposite of the one most people assume:

• § 21-902(a) — DUI. The more serious offense. It covers driving under the influence of alcohol, and driving with a BAC at or above 0.08 percent per se.
• § 21-902(b) — DWI. The less serious offense. It covers driving while impaired by alcohol — impairment short of being “under the influence.”

Practically, this is why Maryland plea negotiations so often end with a charge being reduced from DUI to DWI. A Maryland driver who reads a national article explaining that “DWI is the more serious charge” will draw exactly the wrong conclusion about their own paperwork.

The penalty gap between the two is substantial, and Maryland assigns a different number of license points to each. The specific jail maximums, fine figures and point values were corroborated across several secondary sources during this review but could not be read at Maryland's official General Assembly site, so they are not printed here as fact: Under Md. Transp. § 21-902(a), a first DUI carries up to one year, a fine up to $1,200 and 12 points. Under § 21-902(b) a first DWI — the lesser charge in Maryland — carries up to two months, a fine up to $500 and 8 points.

DWAI means two different things

Driving while ability impaired appears in two state codes and is not the same offense in both.

New York's four tiers

New York is the clearest example of a state that stacks several impaired-driving offenses in one section. All four live in Vehicle and Traffic Law § 1192:

Section 1195 adds a layer of evidentiary presumptions on top: a reading at or below 0.05 is prima facie evidence that the driver was not impaired, while a reading above 0.05 but below 0.07 is prima facie evidence of not being intoxicated without ruling out a DWAI finding. That is a level of statutory nuance no acronym can carry.

What the acronym does not change

The 0.08 threshold, and the one state below it

Every state uses 0.08 percent as a per se blood alcohol limit for adult drivers, whatever the offense is called. That uniformity is not a coincidence: Congress tied federal highway funding to adopting the 0.08 standard, with a compliance deadline of 1 October 2003, and Delaware was the last state to move, in 2004.

Utah is the exception in the other direction. House Bill 155, signed in 2017 and effective 30 December 2018, lowered the state's per se limit to 0.05 percent, codified at Utah Code § 41-6a-502. Utah remains the only state below 0.08.

Crossing state lines

Most states exchange conviction data through the Driver License Compact, under which your home state records an out-of-state conviction and applies its own penalty scheme to it. Georgia, Massachusetts, Michigan and Wisconsin are not current members. A separate agreement, the Non-Resident Violator Compact, deals with unpaid out-of-state citations rather than license points, and has its own non-member list. Those membership lists come from a secondary source in this review and are worth checking against the Council of State Governments' compact database before you rely on them: The Driver License Compact has 45 member states plus the District of Columbia. The five that are not members are Georgia, Massachusetts, Michigan, Tennessee and Wisconsin — which is why an out-of-state conviction does not always follow a driver home in the way people expect..

Whether an out-of-state conviction counts as a prior for enhancement in your new state is a separate question. The general approach is that courts compare the elements of the foreign offense rather than its name, so a Wisconsin OWI can count as a prior in a DUI state if the elements line up. This is a widely stated principle rather than a single national rule, and it varies by statute.

Immigration — and one very common misstatement

A single, simple impaired-driving conviction is generally not treated as a crime involving moral turpitude under the long-standing immigration case law. That point is frequently muddled with a 2019 decision, Matter of Castillo-Perez, 27 I&N Dec. 664 (A.G. 2019), which is often described online as making DUI a crime of moral turpitude. It does not do that.

What Castillo-Perez actually holds is narrower and concerns a different concept: two or more DUI convictions during the relevant period create a rebuttable presumption that a non-citizen lacks the good moral character required for cancellation of removal, and evidence of rehabilitation alone is not enough to overcome it. Good moral character and moral turpitude are distinct doctrines. Anyone with immigration exposure needs an immigration lawyer as well as a criminal defense lawyer, because the two analyses do not run on the same track.

Entering Canada

Canada raised the maximum sentence for impaired driving to ten years with amendments that took effect on 18 December 2018. Under Canadian immigration law that reclassifies impaired driving as “serious criminality,” which removes the automatic deemed-rehabilitation route that used to open up ten years after a single conviction. Travellers with an impaired-driving record now normally need an approved rehabilitation application or a temporary resident permit. Canada applies the reclassification to older convictions when it assesses admissibility, so a conviction from before 2018 is not automatically outside it.

Four things people get wrong

1. “DWI is always the worse one”

True in some states, meaningless in most, and backwards in Maryland. There is no national ordering because there is no national offense.

2. “A first offense is basically a ticket”

Mostly false, with genuine exceptions that are worth stating precisely rather than flattening. Most states charge a first offense as a misdemeanor. New York classifies a first-offense DWAI as a traffic infraction, New Jersey classifies drunk driving as a traffic offense rather than an indictable crime, and Wisconsin treats a routine first-offense OWI as a civil forfeiture. In none of those states does the classification make the license consequences mild, and in all three the second offense looks very different from the first.

3. “Refusing the test means they have no evidence”

Refusal is its own problem. Every state's implied consent law attaches an administrative license suspension to refusal, and that suspension is frequently longer than the one for failing. In Birchfield v. North Dakota, 579 U.S. 438 (2016), the Supreme Court held that a warrantless breath test is a permissible search incident to a lawful arrest and that a state may criminalise refusing one. The Court drew the line at blood: a blood draw requires a warrant, and refusing a warrantless blood draw cannot be made a crime — though a license suspension for that refusal is still allowed. Refusal also does not prevent the state from getting a warrant and taking blood anyway.

4. “It comes off my record after a few years”

Two different clocks get confused here. One is how long a conviction stays visible on your driving record or criminal history. The other is the lookback period — how far back the state reaches when deciding whether this offense is your second or your third. They are rarely the same number, and in several states the lookback period is a lifetime, meaning a conviction from twenty years ago still makes today's arrest a second offense. Texas is one of the states with no lookback limit. Lists of lifetime-lookback states circulate widely and drift as they are copied, so the reliable move is to read your own state's enhancement statute rather than a list.

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