Arkansas DWI FAQs

What is considered a DWI in Arkansas? 

A person can be charged with DWI in Arkansas in two ways: 

First, they may drive or be in actual physical control of a vehicle while alcohol or drugs have substantially affected their reactions, motor skills, and judgment, making them a serious danger to themselves or others. 

Second, they may drive or be in actual physical control of a vehicle with a blood or breath alcohol concentration of 0.08% or higher. A person can be convicted under this rule even without separate proof that they appeared intoxicated.  

Ark. Code §§ 5-65-103 

What is the difference between DWI and DUI in Arkansas? 

DWIs are for people over 21, and DUIs are for underaged drivers. For underaged cases, the language changes from “intoxicated,” to “under the influence,” which greatly lowers the prosecution standard. When the underaged defendant is “under the influence,” that means their normal faculties are affected by alcohol or drugs even slightly – a BAC as low as 0.02% can result in a DUI charge. On the other hand, when a defendant over 21 is “intoxicated,” this means their reactions, motor skills, or judgment were substantially altered, and/or they have a BAC of 0.08%. 

Ark. Code §§ 5-65-303 and 5-65-103 

Can I be charged with DWI if my BAC is below 0.08%? 

Yes. In Arkansas, you can be charged with DWI even if your BAC is below 0.08%. The state may try to prove that alcohol, drugs, or a combination of substances impaired your reactions, motor skills, and judgment enough to make you a danger. 

A BAC of 0.08% or higher is a separate basis for a DWI charge—it is not the minimum BAC required in every case. A test result between 0.04% and 0.08% creates no automatic presumption either way and may be considered alongside other evidence, such as driving behavior, field sobriety tests, statements, and officer observations. 

Ark. Code §§ 5-65-103 and 5-65-206  

Can I get a DWI without taking a breathalyzer? 

Yes. A lot of people get this wrong — they think that if they were not issued the breathalyzer by the police, then their case can be thrown out. That is not accurate.  

Remember, one of the two qualifications for a DWI is to simply be “intoxicated” while driving a motor vehicle. You can be charged and convicted based on intoxication alone. While no breath test lessens the strength of the evidence, the case cannot be completely dismissed because of it. 

Ark. Code §§ 5-65-103 

Can I be charged with DWI for prescription/legal medication? 

Yes. In Arkansas, you can be charged with DWI for driving or being in actual physical control of a vehicle while impaired by prescription medication—even when you have a valid prescription. Arkansas law says that intoxication can result from alcohol, a controlled substance, or an intoxicant. If you are intoxicated due to a controlled substance — like prescription medication — this would result in a DWI-drugs charge. 

Ark. Code Ann. §§ 5-65-102(4) and 5-65-103(a)(1) 

Can I be charged with DWI for marijuana?

Yes. In Arkansas, you can be charged with DWI for driving or being in actual physical control of a vehicle while impaired by marijuana—even if you are legally authorized to use medical marijuana. 

The State must prove that marijuana substantially altered your reactions, motor skills, and judgment, making you a clear and substantial danger to yourself or others. Unlike alcohol, Arkansas law does not establish a general THC limit for DWI.

Ark. Code Ann. §§ 5-65-102(4) and 5-65-103(a)(1) 

Can I get a DWI while driving on private property? 

Yes. The statute does not limit the offense to public streets or highways. In Arkansas, you can be charged with DWI while driving on private property, including a private driveway, parking lot, farm road, or off-road area. 

Ark. Code Ann. § 5-65-103(a) 

Can I get a DWI if the vehicle was not moving? 

Yes, you can get a DWI if you were not moving. Remember: “actual physical control” and “intoxication” = DWI charge. And to be clear, the vehicle does not have to be in motion for the driver to be in “actual physical control.” Arkansas courts have found actual physical control when an intoxicated person was simply behind the wheel with the keys in the ignition (Wiyott v. State, 1985).  

Ark. Code Ann. § 5-65-103(a) and Wiyott v. State, 1985 

What does “actual physical control” of a vehicle mean? 

Actual physical control is typically present when the driver is moving the vehicle down the road. However, there are exceptions to this.  

When an intoxicated person was behind the wheel in a stationary vehicle with the keys in the ignition, the courts found that actual physical control was present. (Wiyott v. State, 1985).  

In Stephenson v. City of Fort Smith (2000), the Arkansas Court of Appeals held that an intoxicated man found asleep behind the wheel of a parked truck with keys not in the ignition was not in actual physical control of the vehicle (Stephenson v. City of Fort Smith, 2000). 

Ark. Code Ann. § 5-65-103(a); Stephenson v. City of Fort Smith (2000); Wiyott v. State (1985) 

Can I get a DWI while sleeping in my car? 

In Stephenson v. City of Fort Smith (2000), the Arkansas Court of Appeals held that an intoxicated man found asleep behind the wheel of a parked truck was not in actual physical control of the vehicle. 

Stephenson v. City of Fort Smith (2000) 

Can I get a DWI on a boat, ATV, or motorcycle? 

Yes. In Arkansas, you can be charged with DWI while operating or being in actual physical control of: 

• A motorboat or personal watercraft 

• An ATV 

• A motorcycle 

Arkansas law expressly includes ATVs in its definition of a “motor vehicle.” Motorcycles also qualify as motor vehicles, while motorboats are separately covered when operated on Arkansas waters. 

Ark. Code Ann. §§ 5-65-102(5)–(6) and 5-65-103(a) 

What is an underage DUI in Arkansas? 

An underage DUI in Arkansas occurs when a person under 21 operates or is in actual physical control of a motor vehicle or motorboat while: 

• Under the influence of alcohol or a similar intoxicant; or 

• Having an alcohol concentration of at least 0.02% but less than 0.08%. 

Even slight impairment may support an underage DUI charge. If an underage driver has a BAC of 0.08% or higher—or is legally “intoxicated”—the driver may be charged under Arkansas’s regular DWI law instead.  

Ark. Code §§ 5-65-303 

Is a DWI a misdemeanor or felony? 

First, second, or third DWI within 10 years: An unclassified misdemeanor. 

Fourth DWI within 10 years: An unclassified felony. 

Fifth DWI within 10 years: An unclassified felony with increased penalties. 

Sixth or subsequent DWI within 20 years: A Class B felony. 

Ark. Code Ann. § 5-65-111 

What makes a DWI a felony in Arkansas? 

A DWI becomes a felony in Arkansas primarily because of prior qualifying convictions: 

Fourth DWI within 10 years: Unclassified felony, punishable by one to six years. 

Fifth DWI within 10 years: Unclassified felony, punishable by two to ten years. 

Sixth or subsequent DWI within 20 years: Class B felony. 

Qualifying DWI convictions from other states or jurisdictions may count as prior offenses. A DWI incident involving serious injury or death will also result in separate felony charges, such as 2nd degree battery or negligent homicide. 

Ark. Code Ann. §§§ 5-65-111 (DWI); 5-10-105 (NH); 5-13-202 (Battery) 

What is the difference between a first, second, third, and fourth DWI? 

The main difference is the severity of the punishment and whether the offense is a misdemeanor or felony. Under Arkansas law: