Illegal Per Se Laws

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 What Does "Illegal Per Se" Mean in Law?

In legal terminology, “per se” is a Latin term that translates to “by itself” or “in itself.” When something is deemed “illegal per se,” it means the act is inherently illegal, without any need to prove that harm resulted from it. Essentially, the act is automatically illegal under its nature and not based on its effect or context.

What Is Needed to Establish a “Per Se” Violation?

The following elements generally need to be met to establish a “per se” violation.

Proof of the Act

The very essence of a “per se” violation hinges on undeniable evidence that the act occurred. While in many legal situations, a broad context is considered, for a per se violation, the spotlight is almost entirely on whether the act took place. This requirement is strict: the evidence must undeniably point to the defendant having committed the act.

Imagine Jane was pulled over on suspicion of drunk driving. The police administered a breathalyzer test, and the results indicated a blood-alcohol concentration of 0.10%, which is above the legal limit. The mere reading of the breathalyzer, assuming the machine was calibrated and used correctly, serves as concrete proof that Jane committed the act deemed illegal per se.

On the other hand, if Jane’s breathalyzer reading was inconclusive or tampered with, the specific act of driving over the legal limit isn’t concretely proven. Without another form of evidence, such as a blood test, the charge might not stand.

No Need to Prove Harm or Intent

Most legal charges demand evidence of harm or malintent to convict someone. However, per se violations stand out as exceptions. The philosophy behind this is that certain acts are deemed so potentially harmful or contrary to societal rules that their mere occurrence is a violation, regardless of actual harm or intent. In essence, the law has pre-determined that these acts are, in all contexts, illegal.

Consider David, a shop owner who enters a price-fixing agreement with other local shop owners. Even if this agreement never leads to increased prices or harm to consumers, and even if David entered into the agreement thinking it would benefit his community, the act itself—price fixing—is a per se violation of antitrust laws.

If, however, David merely discussed prices with other shop owners without ever agreeing on fixed prices, and no evidence suggests a concrete arrangement, then the element of the specific illegal act (price fixing) hasn’t been undeniably established. Thus, even if David’s discussions seemed suspicious, a violation cannot be proven per se without the explicit act of price fixing.

What Are Some Examples of Acts That Are Illegal Per Se?

Here are some common examples of acts that are illegal per se.

Drunk Driving (DUI)

Drunk driving is universally acknowledged as dangerous, jeopardizing not just the driver but others on the road. Due to the inherent risks, laws around the globe have set specific blood-alcohol concentration (BAC) thresholds. In many places, a BAC level of 0.08% is the limit. Surpassing this, irrespective of personal tolerance or perceived impairment, constitutes a DUI violation.

For example, imagine Michael, who prides himself on his high alcohol tolerance. One night, he consumed several drinks but felt confident in his driving ability. However, when pulled over, his BAC was measured at 0.10%. Even if Michael felt unimpaired and drove without swerving or breaking road rules, he still exceeded the legal BAC limit. Therefore, his act qualifies as a per se violation of DUI laws.

Anti-Trust and Fraud Laws

Anti-trust and fraud laws maintain and encourage fair competition in the marketplace. Certain acts, like price fixing, are deemed so inherently detrimental to free-market principles that they’re automatically prohibited. Whether or not such acts tangibly harm consumers or competitors is irrelevant—the act itself is a violation.

Let’s consider two major tech companies, TechA and TechB. Both are rivals but secretly agree on a minimum price for their products to increase profits and eliminate competition from smaller competitors. Even if consumers remain unaware and no small businesses collapse directly, this secret agreement is an illegal per se violation of anti-trust laws, purely based on its existence.

Statutory Rape

Societies protect minors by drawing clear legal boundaries concerning consensual activities. The age of consent is established to protect minors from potential exploitation, even if they believe they’re making an informed choice. Any sexual activity with someone below this age is automatically considered a crime, with no need to establish force or coercion.

For example, James, 25, enters into a relationship with Lucy, who is 16. Both claim their relationship is based on mutual affection and assert that no coercion is involved. However, if the age of consent in their jurisdiction is 17, James’ act qualifies as a per se violation of statutory rape laws, irrespective of the nature of their relationship or Lucy’s assertion of consent.

Possession of Certain Controlled Substances

Laws in many jurisdictions make the mere possession of certain controlled substances without an appropriate prescription or license illegal per se. There’s no need to demonstrate intent to sell or distribute for these offenses. Merely having the substance is enough for a violation.

For example, Sarah is found with a small quantity of cocaine in her purse. Even if she claims she had no intention to sell it and that she didn’t even know it was there, her mere possession of the substance is a per se violation of drug laws in many places.

Driving Without a Valid License

A vehicle without a valid driving license is deemed a threat to public safety. Here, the intent and the reason for driving don’t matter. You’re in violation if you’re behind the wheel without a valid license.

For example, Alex’s license expired, but he decided to drive to a nearby store, thinking it would be a quick trip. On his way, he’s stopped at a routine checkpoint. Even if Alex has never had a traffic violation in the past and was driving safely, he’s committed a per se offense by driving without a valid license.

Selling Alcohol to Minors

Due to the potential harm and risks associated with underage drinking, selling alcohol to those below the legal drinking age is a per se offense in many jurisdictions. The seller’s awareness of the buyer’s age (or lack thereof) often doesn’t exempt them from responsibility.

For example, at a local liquor store, a hurried cashier forgets to check the ID of a young-looking customer. The customer turns 17, one year below the legal age. Even if the cashier claims it was a genuine mistake or oversight, the act of selling alcohol to a minor stands as a per se violation.

Do I Need a Lawyer?

Absolutely. If you’re accused of a per se offense or any other criminal activity, it’s vital to understand your rights and the potential consequences you may face. While the nature of per se violations might seem straightforward, the legal landscape can be complicated.

Whether it’s understanding the nuances of evidence potential defenses or navigating the court system, an experienced criminal lawyer can be invaluable.

With LegalMatch, you can effortlessly connect with a skilled criminal lawyer who is well-versed in defending clients against per se offenses and other criminal charges. Seek legal representation through LegalMatch and ensure your rights are protected and advocated for.

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