With a DUI, what is a per se offense?
5 attorney answers
No. The Per Se charge does not make it worse. It is a DUI charge. If it is charged as a DUI due to being impaired to such a degree you cannot properly operate a car, or the “per se” 0.08 or more, they are both driving under the influence charges and have the same effect.
DUI or 0.08 are both DUI charges and need to be properly defended. Get your brother to a DUI defense attorney as soon as possible, and for sure within ten days of arrest to try and save his license at the DMV.
Of course, every DUI case is different and you should consult an experienced DUI defense attorney in your area with questions regarding your specific case. It is always in your best interest to have a good DUI attorney represent you when you have been arrested for a DUI.
You may be referring to a DMV Administrative Per Se (APS) notice, form DS367, that your brother received at the time of his arrest. This is a separate proceeding from the criminal DUI charges in Superior Court.
The pink APS notice says it is a temporary drivers license, good for thirty days.... but you only have TEN DAYS from the date of receipt to request a DMV hearing. If you request the hearing in time, DMV will "stay" the suspension and give you a temporary license pending the outcome of the hearing.
If you retain an attorney in your DUI case, they should also handle DMV administrative proceedings... but if you wait until your court date, you will have missed the deadline to request a hearing.
Please understand that this is a general discussion of legal principles by a California lawyer and does not create an attorney/client relationship. It's impossible to give detailed, accurate advice based on a few sentences on a website (and you shouldn't provide too much specific information about your legal matter on a public forum like this site, anyway). You should always seek advice from an attorney licensed in your jurisdiction who can give you an informed opinion after reviewing all of the relevant information.
In California there are two DUI charges: (1) driving under the influence; and (2) driving with a .08 or higher. The charge of driving with a .08 or higher is the per se charge. In most DUI cases the defendant is charged with both charges. It does not make things worse for your brother. It is standard to charge a person with driving with a .08 or higher.
BAC of .08 or higher. It means that all the state has to prove is that you were driving with a BAC of .08 or more, without any evidence that you were impaired.
That is standard in California. The per se charge is easier to prove for the DA, so they always charge both if the BAC was above a .08.
Get a lawyer before pleading to anything though. You might think it is a straight forward case, many of them are not - even thought they might appear that way.
If the DA is unable to show the BAC was .08 at the time of driving - for example error rates, machine error, rising BAC, etc., then the DA would argue that even if the BAC was below a .08 the person is still guilty of DUI because of driving conduct, FST performance, etc.
The above information does not establish an attorney client relationship nor is it meant to provide legal advice.