Per Se Alcohol Statutes that Conclusively Presume that a Driver was Above the Legal Limit are Valid

Posted over 1 year ago. 1 helpful vote


The constitutionality of "per se" alcohol DUI-DWI statutes has been consistently upheld by appellate courts across the United States despite attacks on a number of grounds. "Per se" statutes have been most frequently challenged on the ground that they vio­late due process of law by creating an unconstitutional irrebuttable presumption of intoxication.

The courts have refuted this assertion by holding that "per se" statutes create a new crime and not a presumption of intoxication. See People v. Ziltz, 98 Ill. 2d 38, 455 N.E. 2d 70 (1983), Forte v. State, 686 S.W. 2d 744 (Tex. App., 1985) affirmed at 722 S.W. 2d 219, Seattle v. Urban, 32 Wash. App. 634, 648 P. 2d 922 (1982), and State v. Larson, 12 Kan. App. 2d 198, 737 P. 2d 880 (1987).

It has been held that in protecting the safety of its citizens a state legislature may determine that a driver with a blood alcohol concentration above the proscribed limit constitutes a serious and immediate threat to the public safety, and that the passage of a "per se" statute is a reasonable means of protecting the public safety. See Lovell v. State, 283 Ark. 425, 678 S.W. 2d 318 (1984).

The constitutionality of a breath alcohol "per se" statute has also been upheld. See State v. McManus, 152 Wis. 2d 113, 447 N.W. 2d 654 (1989).

Additional Resources

Georgia's Top-Rated Criminal & DUI Defense Firm

Rate this guide

Related Topics


The definition, charges, and penalties for driving under the influence (DUI) vary by state and depend on a number of factors.

Can't find what you're looking for? Ask a Lawyer

Get free answers from experienced attorneys.


Ask now

25,857 answers this week

3,301 attorneys answering