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DUI Per Se Laws

What is a “Per Se” Law?

Per se law with regard to DUI refers to driving with a specified level of alcohol or drug in your blood stream or specified level of alcohol in your breath. Regarding alcohol intoxication, Pennsylvania and New Jersey have determined that it is illegal to drive with a .08 or greater alcohol to blood concentration (BAC). This is the agreed upon BAC at which an average person would be rendered unfit to drive safely.

How is a Per Se Offense Different than a General Impairment Offense of the DUI Statute?

A basic DUI or driving while intoxicated (DWI) charge pertains to the fact that you showed mental and physical symptoms at the time of driving, (or while being investigated at a roadside stop) that allegedly showed you were under the effects of alcohol, and so were likely to be impaired at the time of driving. A charge based upon the observations of the police is called a “general impairment” charge. If the BAC has exceeded the per se level, then a separate allegation of DUI or DWI is made that you were driving in violation of the per se law. A conviction of violating the general impairment section of the DUI law or the per se section will both constitute a DUI conviction. However, the penalties may differ.

If you don’t consider yourself to be an average drinker, and believe you have a very high tolerance to alcohol, can this help your case?

Unfortunately, there is of course no such thing as an average person. Everyone metabolizes and eliminates alcohol at a different rate, and the effects they experience from alcohol are quite different, and hard to quantify. Even if you are a seasoned drinker, and can easily drink six beers without feeling much of an effect, you can still be charged with under per se laws if the BAC is above the .08% limit.

I am under 21. What are the Per Se limits for me?

The per se BAC limit for someone under 21 is .02% in Pennsylvania and .01% in New Jersey; meaning, a minor can be charged with a DUI for having a very small or even a negligable amount of alcohol in the blood stream.

I drive a commercial vehicle. What is the Per Se limit for me?

If you drive a commercial vehicle, then you can be convicted of a DUI at a .04% blood alcohol level, which could have serious repercussions on your ability to work and your livelihood.

Is it Possible to Avoid a Per Se DUI Charge by Refusing a Chemical Test?

Implied Consent Laws require that you submit breath samples in New Jersey, and blood, breath or urine samples in Pennsylvania. Otherwise, you face the loss of your license for 7 months to 10 years. Additionally, it is a difficult burden to win against an allegation of refusal; especially if you flat-out refused to provide a sample for chemical testing.

Is it Possible to Fight a Per Se DUI Charge?

Yes. Many people feel that because they submitted to a chemical test that indicated they were over the .08% limit, that they are automatically doomed. This is not the case. An experienced DUI attorney will have great knowledge of the handling of scientific evidence and challenging breath, blood or urine testing.

Can I still be charged with a DUI without a Per Se DUI?

Yes. Even if you refused a chemical test, meaning the prosecution has no chemical evidence to suggest that you were over the legal limit, and so cannot charge you with a per se DUI, they can still use other evidence against you such as your erratic driving, demeanor, odor of alcohol in your car and person, droopy, bloodshot, or watery eyes, and other signs, to suggest that you were too impaired to drive.

Leckerman