DUI Laws: Per Se Intoxication
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What Are "Per Se" DUI Laws?
Every state has a DUI law that states that a driver is “intoxicated per se” if their blood alcohol content (BAC) is greater than a set limit. As of 2004, the legal limit is set at .08 for all states. Quite simply, this means that a driver whose BAC is at or greater than .08 is legally intoxicated. No further proof of intoxication or impairment of driving will be required and the person will receive DUI charges. Note, a charge is not the same as a conviction.
While a legal "limit" that applies to everyone in the same way may seem arbitrary, these DUI laws are necessary to preserve the safety of the roads and highways. Similarly, drivers under the age of 21 are subject to “zero tolerance” laws. These laws make it illegal for persons under the age of 21 to drive with any trace of alcohol in their blood.
Can a Person Receive a DUI Even If Their BAC Is Lower than the Per Se Intoxication Limit?
Yes. A person can still be arrested for and receive DUI charges without evidence of per se intoxication. However, the arresting officer must provide specific and definitive evidence of impaired driving. For example, if the officer has observed the driving swerving, or failing to observe traffic signals, it could be evidence of impaired driving. Additionally, if the driver is demonstrating slurred speech or inattention during questioning, it could lead to DUI charges.
Thus, it is possible for a driver with BAC levels of less than .08 to receive DUI charges if they demonstrate evidence of intoxication. It is common for a person to be charged with two DUI counts for the same incident; one based on the alcohol-induced impairment and another based on the per se intoxication BAC readings.
What Factors Are Considered in Issuing Penalties for Per Se Intoxication?
While every state currently enforces a per se intoxication law, the penalties may differ from state to state and according to the individual circumstances. DUI charges can generally lead to heavy fines, jail or prison time, or a combination of both.
- The driver’s history of DUI charges, if any
- Whether the DUI violation involved the severe injury or death of another person
- Whether the violation involved significant damage to property
- Whether the driver’s vehicle was being used for commercial purpose
- Whether the driver was of legal drinking age at the time of the DUI arrest
- Whether there was a child present in the driver’s car
Do I Need a DUI Lawyer for Per Se Intoxication Violations?
If you are facing charges for violating DUI laws, you should speak to a criminal defense attorney as soon as possible. A DUI lawyer can help determine how your state deals with per se violations, and whether any defenses are available to you. Likewise, if you have been injured by another driver who was intoxicated, you may be entitled to recover damages for your losses. A personal injury lawyer will be able to assist with your cause.
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Last Modified: 08-21-2014 11:32 AM PDT
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