What Happens If You Get a DUI in the Military
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A service member arrested for impaired driving can face up to three separate tracks for the same stop. The first is a state or local criminal case. The second is military action under Article 113 of the Uniform Code of Military Justice, where the legal blood alcohol limit is the lower of the state’s limit or 0.08. The third is an administrative loss of on-installation driving privileges that, under federal regulations, lasts at least one year after a qualifying conviction, nonjudicial punishment, or test refusal. The military can act even if the civilian case ends in dismissal, although the Manual for Courts-Martial says a person already tried in state court “should not ordinarily be tried by court-martial for the same act.”
What Article 113 Covers
Article 113 punishes anyone subject to the Code who operates or is in actual physical control of “any vehicle, aircraft, or vessel” either:
- “in a reckless or wanton manner or while impaired by a substance” covered by Article 112a, or
- “while drunk or when the alcohol concentration in the person’s blood or breath is equal to or exceeds the applicable limit”.
This offense was numbered Article 111 until the Military Justice Act of 2016 took effect on January 1, 2019. Older material that cites Article 111 describes the same conduct under its former number.
The Manual for Courts-Martial, United States (2024 ed.), Part IV, paragraph 51, defines “drunk” as “any intoxication which is sufficient to impair the rational and full exercise of the mental or physical faculties.” It also says operating includes “setting of its motive power in action or the manipulation of its controls so as to cause the particular vehicle … to move.” Physical control is “the present capability and power to dominate, direct, or regulate the vehicle,” so a person can be charged without the car being in motion.
Which Alcohol Limit Applies
The statute sets the limit by location. Inside the United States, the limit is “the lesser of” the blood alcohol limit of the state where the conduct occurred or the federal limit of 0.08 grams per 100 milliliters of blood or 0.08 grams per 210 liters of breath. Outside the United States, the limit is 0.08 “or such lower limit as the Secretary of Defense may by regulation prescribe.” Where an installation lies in more than one state with different limits, the Secretary may choose one limit for the whole installation.
A reading under the limit does not end the question. Being “drunk” is a separate way to commit the offense, proven through observations, driving behavior, and other evidence of impairment.
Maximum Punishments and Sentencing Categories
| Article 113 offense | Maximum punishment (MCM para. 51.d) | App. 12C category, App. 12B range |
|---|---|---|
| No personal injury involved | bad-conduct discharge, total forfeitures, 6 months | Category 1, 0 to 12 months |
| Resulting in personal injury | dishonorable discharge, total forfeitures, 18 months | Category 2, 1 to 36 months |
The categories apply to offenses committed after December 27, 2023. A commander can also handle the case through nonjudicial punishment under Article 15. The member may demand trial by court-martial instead, except when “attached to or embarked in a vessel”.
The Driving Privileges Track
On-installation driving privileges are handled under Part 634 of title 32 of the Code of Federal Regulations. That part sets policy for “motor vehicle traffic supervision on military installations”, and some of its sections give separate instructions for Navy, Marine Corps, and Air Force users. Under 32 CFR 634.9(a)(3), “Driving privileges will be revoked for a mandatory period of not less than 1 year” in two situations:
- the person “refused to submit to or complete a test to measure the alcohol content in the blood, or detect the presence of any other drug,” as required by the jurisdiction, installation traffic code, or service directive; or
- there is “A conviction, nonjudicial punishment, or a military or civilian administrative action resulting in the suspension or revocation of driver’s license for intoxicated driving.”
32 CFR 634.11 gives the procedure. A person whose privileges are revoked after a hearing may ask for reconsideration through command channels “within 14 calendar days” of notice. Where privileges are temporarily restored for family hardship, “the period of revocation … will still total the mandatory 12 months.” A test refusal carries a one-year automatic revocation “in addition to any other” revocation. Refusing a test therefore has its own consequence, separate from the drinking question. The regulation itself refers to the “installation traffic code” and “Service directive”, so the installation’s rules and the written notice of suspension state what applies in a given case.
The Civilian Case and the Military Case
A state prosecution does not legally bar a court-martial. The Supreme Court in Gamble v. United States, 587 U.S. 678 (2019) declined to overturn the dual-sovereignty doctrine, under which prosecutions by different sovereigns are not the “same offence” for double jeopardy purposes. Article 44 bars a second court-martial for the same offense, and the Discussion to Rule for Courts-Martial 201 says a person “generally may not be tried for the same misconduct by both a court-martial and another federal court.” Neither rule reaches a state prosecution.
Policy, though, cuts the other way. Rule for Courts-Martial 201(d)(2) says conduct that violates both the UCMJ and local law may be tried by a court-martial, by a civilian court, or, “subject to R.C.M. 907(b)(2)(C) and regulations of the Secretary concerned, by both.” The Discussion accompanying the rule adds that “as a matter of policy, a person who is pending trial or has been tried by a state court should not ordinarily be tried by court-martial for the same act.” The Discussion is guidance printed in the Manual, not a binding rule. The service secretary’s own regulations decide when a second proceeding is allowed. Even when no court-martial follows a state case, the conduct can still support nonjudicial punishment, the driving-privilege revocation above, or administrative action.
Questions to Settle Early
- Where did the stop happen: on the installation, off it in a particular state, or overseas? The answer sets the alcohol limit and which forum moves first.
- Was a chemical test refused or not completed? That alone triggers the one-year revocation in 32 CFR 634.9(a)(3).
- Did anyone suffer personal injury? That changes the maximum punishment and the sentencing category.
- Before any statement to a supervisor or investigator, has the member received the Article 31(b) warning, and has defense counsel reviewed the civilian charging documents?
Sources
- 10 U.S.C. 913, Article 113, Drunken or reckless operation of a vehicle, aircraft, or vessel (Cornell LII)
- 10 U.S.C. 815, Article 15, Commanding officer’s non-judicial punishment (Cornell LII)
- 10 U.S.C. 844, Article 44, Former jeopardy (Cornell LII)
- 32 CFR 634.9, Suspension or revocation of driving or privately owned vehicle registration privileges (Cornell LII)
- 32 CFR 634.11, Administrative due process for suspensions and revocations (Cornell LII)
- Gamble v. United States, 587 U.S. 678 (2019) (Cornell LII)
- Manual for Courts-Martial, United States (2024 ed.), Part II, R.C.M. 201(d) and Discussion; Part IV, para. 51 (Article 113); Appendix 12B; Appendix 12C.
This guide describes how impaired-driving cases involving service members are handled under federal military law and the federal traffic regulation for military installations. It is general information, not legal advice about a particular arrest, and state law controls the civilian case.