The constitutionality of “per se” statutes has been consistently upheld by the courts despite attacks on a number of grounds. “Per se” statutes have been most frequently challenged on the ground that they violate due process of law by creating an unconstitutional irrebuttable presumption of intoxication. The courts have refuted this assertion by holding that “per se” statutes create a new crime and not a presumption of intoxication. It has been held that in protecting the safety of its citizens a state legislature may determine that a driver with a blood alcohol concentration of .08% or more constitutes a serious and immediate threat to the public safety, and that the passage of a “per se” statute is a reasonable means of protecting the public safety.The constitutionality of “per se” statutes has also been challenged on a void for vagueness grounds. Defendants have alleged that because they have no way of knowing when their blood alcohol concentration reaches the prohibited level, “per se” statutes fail to give adequate notice of the forbidden conduct and are therefore unconstitutionally vague. The courts have rejected this argument, ruling that the consumption of alcohol should put a person of ordinary intelligence on notice that he or she is in jeopardy of violating the statute and that any person who drives after drinking should reasonably be aware of the possibility of violating the statute.

It has been held that the enforcement of a “per se” statute is not an unreasonable or unconstitutional exercise of police power. It has also been held that a “per se” statute does not violate the equal protection clause of the Constitution. Finally, the use of an implied consent law in conjunction with a “per se” statute has been upheld against a claim that the conclusiveness of the evidence of blood alcohol concentration violates a defendant’s privilege against self-incrimination.

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