DWI vs. DUI in Arkansas — What’s the Difference?

In Arkansas, DWI can apply to drivers of any age; DUI is a separate offense for drivers under 21. DWI requires intoxication or a blood or breath alcohol concentration (BAC) of 0.08% or higher. Underage DUI has a lower alcohol threshold: 0.02% to less than 0.08%, with a separate way to prove the charge based on being under the influence. Being under 21 doesn’t protect you from a DWI charge.

What The State Must Prove

DWI: Driving While Intoxicated

Under Ark. Code § 5-65-103, the State must prove that you operated or were in actual physical control of a motor vehicle while intoxicated, or while your alcohol concentration was at least 0.08%.

“Intoxicated” means alcohol, drugs, or another intoxicant substantially altered your reactions, motor skills, and judgment, making you a clear and substantial danger of physical injury or death to yourself or someone else. A prescription doesn’t excuse driving while intoxicated, but taking medication alone doesn’t establish intoxication (Ark. Code § 5-65-102).

You can therefore face DWI with a result below 0.08%, or without a chemical test, if the other evidence establishes intoxication. If the State proves the prohibited alcohol concentration, it doesn’t also have to prove visible impairment.

DUI: Driving Under The Influence While Underage

Under Ark. Code § 5-65-303, the State must prove that you were under 21 and operated or were in actual physical control of a motor vehicle with an alcohol concentration of at least 0.02% but less than 0.08%, or while under the influence of alcohol or a similar intoxicant.

The influence-based alternative requires more than showing that you drank. Your reactions, motor skills, and judgment must be altered or diminished, even slightly, and your inexperience and lack of skill must make you a danger of physical injury or death to yourself or another person. The BAC-based alternative doesn’t require that separate showing (Ark. Code § 5-65-102(3)).

A 19-year-old driving with a BAC of 0.04% can face underage DUI without appearing drunk. At 0.10%, that driver can face DWI. DWI is also possible below 0.08% if the State proves intoxication. Both criminal charges require proof beyond a reasonable doubt; the lower BAC threshold doesn’t lower that burden.

Neither charge requires the vehicle to be moving when police arrive. But sitting near your keys doesn’t automatically establish actual physical control. The evidence about your position, the engine, and how the ignition or remote-start system works matters. Arkansas decisions distinguish different vehicle systems and circumstances; there isn’t a universal “keys nearby” rule.

First-Offense Penalties Compared

A first DWI and an underage DUI are both unclassified misdemeanors. These are the ordinary first-offense penalties; court costs, program fees, and reinstatement requirements are additional.

Ark. Code §§ 5-65-104, 5-65-111, 5-65-112, 5-65-303 through 5-65-306. License suspensions are administered separately from the criminal case.

Suspension for either offense also brings alcohol education or treatment requirements and victim impact panel attendance. A first alcohol-related DWI generally requires an ignition interlock restriction, subject to limited statutory exceptions. The interlock provisions don’t apply the same way to a controlled-substance DWI (Ark. Code §§ 5-65-115, 5-65-118, 5-65-121, and 5-65-307).

A passenger under 16 raises the first-DWI incarceration range to seven days through one year. The statute provides an affirmative defense to that enhancement when the driver was no more than two years older than the passenger; it also permits public service instead of imprisonment for a first offense.

Repeat Offenses Increase The Consequences

A fourth DWI within ten years of the first is a felony carrying one to six years before any child-passenger enhancement. A fifth carries a higher range, and a sixth or later offense within twenty years is a Class B felony. A qualifying equivalent conviction from another state can count as a prior DWI (Ark. Code § 5-65-111).

Don’t use one lookback period for every penalty. The DWI incarceration statute uses ten years for second through fifth offenses, while the increased fines and ordinary repeat-offense license suspensions use five-year periods. The dates and nature of your priors can therefore produce different results in court and at Driver Services.

For underage DUI, a second offense carries a $200 to $1,000 fine, at least 30 days of public service, and a one-year license suspension. A third or later offense carries a $500 to $2,000 fine, at least 60 days of public service, and revocation for three years or until age 21, whichever is longer. Prior DWI convictions and certain administrative suspensions can affect the count (Ark. Code §§ 5-65-304 through 5-65-306).

The License Case Has Its Own Rules

The criminal court decides guilt and punishment. Driver Services separately decides the administrative suspension. At the license hearing, the State’s burden is a preponderance of the evidence, meaning more likely than not. Winning that hearing doesn’t decide the criminal charge (Ark. Code § 5-65-402).

If your license was unexpired and appeared valid, the receipt issued at arrest authorizes driving for up to 30 days. After that, don’t assume you can drive because your court case is pending. Confirm whether you have a valid temporary, restricted, or interlock license and follow its conditions.

Refusing a qualifying chemical test creates a separate license issue and doesn’t prevent an impairment-based prosecution. A first refusal under the standard implied-consent law carries a 180-day suspension; a first refusal under the underage law carries 90 days. Which provision applies matters, especially when a driver under 21 faces regular DWI (Ark. Code §§ 5-65-205 and 5-65-310).

Charge Reductions, Sentencing, And Defenses

Arkansas restricts reducing or dismissing a DWI charge under § 5-65-103. Section 5-65-107 prevents simply bargaining it down to reckless driving. Underage DUI is a separate offense, and that statute doesn’t impose the same restriction on a charge brought under § 5-65-303.

Being under 21 also doesn’t make DUI an automatic fallback from DWI. In McElhanon v. State, 329 Ark. 261 (1997), the Arkansas Supreme Court held that underage DUI is not a lesser-included offense of DWI and rejected the court’s substitution of DUI for the charged DWI.

The DWI reduction restriction doesn’t eliminate sentencing discussions within the law, challenges to whether prior convictions count, or your right to contest the evidence at trial. A court can acquit when the State fails to prove the charge. Act 346 first-offender probation is unavailable for both DWI and underage DUI (Ark. Code §§ 5-65-108 and 5-65-308).

Neither Charge Automatically Disappears From Your Record

Turning 21 or completing your sentence doesn’t automatically erase a conviction. Under the current misdemeanor sealing statute, an underage DUI can qualify for a petition after sentence completion, payment of required financial obligations, and completion of applicable license-reinstatement requirements. Sealing requires a court order.

For misdemeanor DWI, a blanket ten-year waiting rule is inaccurate. In State v. Coleman, 2026 Ark. App. 137, the court distinguished an initial sealing petition from a later petition and applied the initial-petition requirements in § 16-90-1405(a). Under the older statute governing that case, the wait was 60 days after completing the required obligations. Your offense date, applicable statute, and any earlier sealing petitions matter; felony DWI has separate eligibility rules.

What To Do After The Arrest

• Check the statute on your citation. Section 5-65-103 means DWI; § 5-65-303 means underage DUI. The informal label someone used may not identify the actual charge.
• Keep the license notice and court papers. They identify separate deadlines. Requesting the license hearing doesn’t replace appearing in court.
• Preserve evidence promptly. Save original dashcam footage, receipts, messages, and witness contact information so the driving and testing timeline can be reconstructed before evidence is lost.
• Bring prior judgments and relevant medical information to your lawyer. Prior offense dates affect penalties; medications and medical conditions may help explain observations or test results. Discuss the alleged offense with counsel before giving police or prosecutors another account.

Updated October 24, 2026

This blog post is provided for general informational purposes only and does not constitute legal advice. Reading this content does not create an attorney-client relationship with Wesley Rhodes, Attorney at Law. If you need legal advice about your specific situation, you should consult with a qualified criminal defense attorney.