A series of vicious accidents caused by drunken driving raised the heated debate on whether the behavior of drunken driving"gets into the crime" and how to convict the drunken driver and measure the penalty in recent years.In combination with inadequate regulations of the current laws about drunken driving and referring to the overseas experiences and laws in this aspect,the writer tries to convict and measure the behavior from the view of the purpose of penalty for realizing dialectical unity of retribution and prevention in order to really correctly measure the penalty and deter and prevent the drunk driving behavior.