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).