What is a “Per Se” DUI?
What does a DUI “per se” actually mean? “Per se” is a Latin term meaning “by and of itself.” Under California law, a blood alcohol level (BAC) of 0.08% is by and of itself considered driving under the influence. (For some drivers such as those with commerciallicenses, the per se BAC is lower under the law.) It doesn’t matter if the driver is not impaired at all (although this may be unlikely); if his or her BAC tests at 0.08% or above, that driver is – to use another Latin term–ipso facto under the influence.
California DUI law makes it unlawful to drive under the influence of any alcohol beverage (Vehicle Code section 23152(a)) AND to drive with a BAC of 0.08% (Vehicle Code section 23152(b).) Why the two distinctions? Well, under subdivision (a), a person could be arrested and charged even if his or her BAC is under 0.08% if the officer believes the driver is impaired by alcohol. Subdivision (b) is the “per se” part of the DUI law. When a person is arrested for DUI, they are almost always charged under subdivision (a) and (b). The need for a per se law is evident. Without it, drivers would be subject to the officer’s own subjective determination. The inconsistencies in arrests and convictions would pose a problem. Furthermore, having a per se law establishes a cut-off point where a driver is subject to arrest.
But it wasn’t until scientists developed accurate methods for determining BAC levelsand later that the National Highway Traffic Safety Administration started pushing for stricter DUI laws that per se laws became a part of every state’s drunk driving statute. In fact, it wasn’t until the early 1980’s that California enacted the per se law. Back then, the per se BAC was 0.10%. In 1990 it was lowered to 0.08% and has remained the same up to this day. (Although there is a bill in the Legislature, Assembly Bill 1713, to lower it to 0.05%.)
The per se law has an important role: it gives the DMV the authority to immediately suspend the license of any driver whose BAC measures over 0.08% upon arrest. The suspension can be challenged in an Administrative Per Se hearingor with the new Ignition Interlock Device (IID) law, some drivers can “bypass” the suspension (but not the DUI) by installing an IID. This authority of the DMV to suspend a driver’s license is found in administrative law, not criminal law.
It is under the per se law (Vehicle Code section 23152(b)) that the driver finds him or herself “guilty before proven innocent.” Well, what I am trying to point out is that the per se law may circumvent the driver’s due process rights. If a driver believes his or her rights have been violated by the police stop or arrest or the evidence is insufficient, he or she will have to proactively challenge the per se charge at a DMV hearing. These challenges are not easily won and the assistance of an experienced DUI defense attorney is an absolute necessity. There are ways to fight this!
Orange County DUI defense attorney William Weinberg has assisted individuals arrested for DUI in both the Administrative Per Se hearing and in criminal court. If you have been arrested for DUI, he offers a free consultation to discuss your options. You may contact himby calling his Irvine office at 949-474-8008 or by emailing him at bill@williamweinberg.com.