DUI Per Se

The drunk driving laws of practically every state contain a “DUI per se” offense based upon a specified minimum blood alcohol concentration (usually .08%), or, in a few states, a specified minimum breath alcohol concentration. Under a “per se” statute it is a crime for a person with a blood alcohol concentration at or above the statutory level to drive a vehicle, regardless of the effect of the alcohol on the person. Thus, under a “per se” statute the prosecution does not have to prove that the defendant was under the influence of the alcohol consumed. No expert witness is needed to correlate blood alcohol concentration to degree of impairment since a blood alcohol concentration at or above the level set forth in the statute is itself sufficient for conviction. Under a “per se” statute intoxication in the traditional sense is not a guilt or innocence issue: the guilt or innocence issue is whether the defendant had a prohibited blood alcohol concentration at the time of driving. In some states, the “per se” statute specifies prohibited levels of alcohol in a person’s blood, breath or urine.

Under a “DUI per se” statute, as under any DUI statute, it must be proven beyond a reasonable doubt that the defendant “drove” a vehicle. However, instead of proving that the defendant was intoxicated or under the influence of alcohol at the time of the alleged offense, the prosecution need only prove beyond a reasonable doubt that the defendant’s blood alcohol concentration was at or above the prohibited level at the time of the driving.

Chemical tests can play an important role in the prosecution of most types of drinking-driving offenses. However, because of the nature of a “per se” offense, chemical tests typically play a more important role in “per se” cases than in other types of drinking-driving cases. Because a chemical test result is normally the only significant evidence of guilt in a “per se” case, a higher degree of testing accuracy should be required in a “per se” case than in other drinking-driving cases.

In most states a “per se DUI” offense constitutes an offense separate and distinct from the offense of driving while under the influence or while intoxicated. It should also be considered that the constitutionality of “per se” has been consistently upheld. More often than not, however, both offenses are based on the same conduct by the defendant, and it is common in many states for a defendant to be charged with both offenses in the same complaint or information. Multiple convictions resulting from the same conduct are not permitted in many states and in the states where multiple convictions are permitted, multiple punishment is not permitted. In a few states a “per se” offense is treated as a lesser included offense of driving while under the influence of alcohol or of driving while intoxicated, and multiple convictions are thereby precluded.

Experienced DUI-DWI lawyers know how to fight DUI per se charges and defend your legal rights. Chemical testing of blood alcohol levels is complex and requires a deep understanding of the scientific basis to test results in addition to how those methods could be flawed. To find out how to fight your DUI-DWI case, call a specialized drunk driving defense attorney at 1-855-350-TEAM. To have an attorney contact you, you may also submit your DUI case information.