DUI Laws: Per Se Intoxication

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 What is a DUI?

Driving under the influence is often referred to as DUI. Every state in the United States has some version of the DUI statute that prohibits the operation of a motor vehicle while an individual is under the influence or is intoxicated by a substance which is known to impair the driver’s motor skills.

There are certain states that have different classifications for DUIs which involve different substances including:

  • Alcohol;
  • Illegal drugs; or
  • Over the counter medications.

Certain states also include multiple types of vehicles, such as:

  • Bicycles;
  • Mopeds; and
  • Golf carts.

There are other names that a state may use to identify DUI offenses, including:

What are Per Se Intoxication Laws?

When an individual is arrested for the offense of driving under the influence (DUI) or driving while intoxicated (DWI), that state’s per se intoxication laws may apply. A per se intoxication law states that if a driver is stopped by law enforcement because they are suspected of impaired driving and their blood alcohol concentration (BAC) is 0.08% or higher, that is evidence enough to establish that the driver is intoxicated.

This means that the prosecution will only be required to show that the individual had at least a BAC of 0.08% to obtain a conviction for driving under the influence. If the law enforcement officer did not perform any field sobriety tests or take any other measures to establish intoxication, those issues would not be relevant pursuant to per se intoxication law.

It is, however, possible for any driver to be charged with driving under the influence even if there is no evidence of per se intoxication. In a large number of states, a driver may be convicted of DUI based upon driving while impaired, regardless of whether or not their BAC was 0.08%.

In many cases, the arresting law enforcement officer is required to provide evidence of the individual’s impaired driving to the court. For example, other evidence that may be used includes:

  • If a driver visibly swerves;
  • If a driver fails to stop at stop sign;
  • If a driver slurs words; or
  • If a driver fails field sobriety tests.

Per se DUI laws do not address when an individual is driving under the influence of illegal drugs. This issue may be more difficult to prove.

In some states, there are separate per se intoxication laws which address driving while under the influence of illegal drugs. States vary regarding whether the law sets an intoxication limit or whether it employs a zero tolerance policy.

It is also important to keep in mind that any individual under the legal drinking limit of 21 years of age is not permitted to have any alcohol in their system while driving in any state. The zero tolerance driving under the influence policy applies to any underage driver and makes it illegal to have even a trace amount of alcohol in their bloodstream.

How were Per Se Intoxication Laws Created?

Although DUI per se laws may appear arbitrary, the lobbying efforts of Mothers Against Drunk Driving and scientific opinions helped develop this standard of safety. These efforts and opinions considered the BAC level which would classify a driver as being under the influence.

At the beginning, the scientific opinion was that a blood alcohol level of 0.10% should be what was considered under the influence. The National Highway Traffic Safety Administration lowered the level to 0.08%. Every state in the United States has adopted the level of 0.08% as a condition made by the federal government to receive federal transportation aid.

What are Zero Tolerance Laws?

There are several states which have zero tolerance laws for drivers who are under age and have any amount of alcohol in their system. Pursuant to these laws, having any amount of alcohol at all in their system may cause a minor to be subjected to a DUI conviction.

However, there are many states that promote diversion programs for young adults who qualify. These programs may provide alternatives to incarceration, such as probation and treatment programs.

What Factors are Considered in Issuing Penalties for Per Se DUI Charges?

After an individual is convicted of a per se DUI, they will be sentenced and will face penalties similar to other types of DUI charges. While every state has a DUI per se law, they all differ regarding the range of penalties which a driver would receive for a DUI conviction.

The legal consequences, or DUI penalties, of a per se DUI conviction may include:

  • Heavy fines;
  • Driver’s license suspension;
  • Probation;
  • Jail or prison time;
  • Home confinement;
  • Ignition interlock devices;
  • Random alcohol tests; and
  • Community service.

It is important to remember that the exact penalties depend on the individual’s state laws, the court, and the circumstances that surround the arrest. Courts typically consider certain factors when deciding on the defendant’s sentence for a DUI conviction, including:

  • Prior conviction history;
  • Prior history of DUIs, for example, if they are a repeat DUI offender;
  • Whether serious bodily injury or death was a result of the DUI charge;
  • Whether or not property damage occurred;
  • Whether the driver was using the vehicle for commercial purposes;
  • The driver’s BAC level;
  • Whether or not the driver was of legal drinking age at the time of their arrest; and
  • Whether or not a child, also called a minor, was in the driver’s car at the time of the incident.

The penalties for a first DUI offense that does not cause injury or death to another individual are typically more lenient than those for a repeat DUI offender or a crime in which another individual was harmed.

What are the Possible Penalties for a DUI Conviction?

Each state has different penalties for DUI convictions. Penalties may also vary for subsequent convictions.

Common penalties which an individual may face if they are convicted of a DUI include:

  • Suspension or revocation a driver’s license;
  • Fines and court costs;
  • Incarceration, particularly for a subsequent offender;
  • Court ordered alcohol or drug rehabilitation or education; and/or
  • Installation of an ignition interlock device.

Are there any Defenses to Per Se Intoxication Laws?

There may be some defenses available for per se intoxication cases, although there is less room for argument for these types of charges. Defenses that may be available include:

  • Challenging the validity of the test results;
  • Claiming that the machine collecting the results was operating improperly; and
  • Challenging the DUI arrest procedure.

Whether or not these defenses will be available depends on the specific circumstances surrounding the case and the DUI laws of the state.

Should I Hire a DUI Lawyer for Per Se Intoxication Violations?

Yes, it is very important to hire a local DUI/DWI lawyer who specializes in DUIs if you are facing any per se intoxication charges. If you are facing charges, it is essential to hire an attorney as soon as possible.

As previously noted, each state has its own DUI laws and requirements for sentencing. Your attorney can review your case, help you preserve your rights, and represent you in court. Your lawyer will also be able to discuss available defenses and may be able to negotiate a reduction in charges or lesser penalties in your case.

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