DUI Per Se Explained
If your blood alcohol content (BAC) is above the legal limit of .08%, you can be charged with "DUI Per Se."
If you’re operating a motor vehicle and a police officer determines that your blood alcohol content (BAC) is .08% or more, you can be charged with driving under the influence (DUI). This is referred to as a "per se" DUI. It differs from a DUI in which a police officer determines that you were too impaired to drive regardless of your BAC—that is, even if your BAC was below .08%. A per se DUI is typically determined by a blood or breath test (sometimes urine). A driver’s state of impairment is determined by law enforcement officers using their own judgment and a field sobriety test, where they test the driver’s motor function skills and stability.
What Does the Term Per Se Mean in My DUI Charge?
In almost every state, a conviction for DUI is permissible in court based on a DUI per se prosecution. This means the breathalyzer (or blood test) test at the time of the arrest recorded your BAC to be above the legal limit and thus no other factors matter; you are automatically guilty of DUI.
- In order for the court to prosecute you on a per se DUI charge, the BAC of the driver must be known and recorded at the time of the arrest.
- If the charge is based on a field sobriety test alone, the defendant has a right to contest the DUI charge.
In some cases, the defendant may be charged with both a DUI and a DUI per se for the same offense. In most cases, this is done to ensure the prosecution a conviction based on the alternative charges.
Is there any Argument Against a Per Se DUI Charge?
Arguing against a per se charge in any form of offense is extremely difficult. However, if the defendant can prove there is reason to believe either the reports of the BAC were altered at the time of arrest or that the calibration of the testing equipment rendered the results inaccurate, there is limited possibility of having a per se charge become arguable.
If you intend to dispute a per se charge, you will likely need the assistance of an experienced DUI attorney, especially if you intend to dispute the results of a blood breath or other test.