A driving under the influence (DUI) “per se” charge simply means that a driver had a blood alcohol concentration (BAC) of .08% or higher when tested by police. If you drive  with a BAC of 0.08% or higher, that is enough for a conviction.

Though DUI per se laws may seem arbitrary, it was through the lobbying efforts of Mothers Against Drunk Driving (MADD) and scientific opinion to develop a standard of safety when considering the BAC level that would classify a driver as under the influence. 

Scientific opinion was that a BAC level of 0.10% should be considered under the influence, and the National Highway Traffic Safety Administration (NHTSA) lowered that level to 0.08%. All states adopted the 0.08% limit as a condition made by the federal government to receive federal transportation aid.

Additionally, any person under the legal drinking age of 21 cannot have any alcohol in their system. This zero tolerance policy applies to all underage drivers, and makes even a trace amount of alcohol in the bloodstream, illegal.

Can a Person Receive a DUI Even if Their BAC Is Lower Than the Per Se Intoxication Limit?

It is possible for any driver to be charged with DUI, absent evidence of per se intoxication. In most states, a driver can receive a DUI conviction based on driving while impaired, regardless of whether their BAC was .08% or not. The arresting officer must provide evidence of impaired driving to the court. For instance, visible swerving or blowing through stop signs, and/or the slurring of words, or failing field sobriety tests would suffice.

What Factors are Considered in Issuing Penalties for Per Se Intoxication?

All states enforce the DUI per se law, but they do have differences in the penalties a driver would receive for a DUI conviction. Consequences such as heavy fines, license suspension, jail or prison time, home confinement, ignition interlock, and community service are all common DUI penalties.

The following factors are taken into consideration when determining a defendant’s consequences:

  • Prior conviction history;
  • Whether severe injury or death was a result of the DUI charge;
  • Whether property damage occurred;
  • If the driver was using the vehicle for commercial purposes;
  • If the driver was of legal drinking age at the time of arrest; and/or
  • Whether or not a child was in the driver’s car at the time of the incident.

Do I Need a DUI Lawyer for Per Se Intoxication Violations?

DUI per se consequences are quite serious, and if you are facing criminal charges, contact a DUI /DWI lawyer immediately. Every state has its own DUI laws and sentencing requirements, and an experienced lawyer can advise you of your rights, build your case, and represent your best interests in court.