When you are arrested for DUI, you generally receive two types of charges. The first alleges that you were driving while impaired by alcohol or drugs to at least “the slightest degree.” Thus, to violate the statute, you do not have to be falling-down drunk. Rather, a slight impairment of your ability to drive, due to alcohol, violates the law.
The second type of charge you receive when arrested for DUI relates to your blood-alcohol concentration (BAC). For a basic DUI allegation, you’re charged with having a BAC greater than .08 percent within two hours of driving. If your BAC is greater than .150, you may receive an additional charge of Extreme DUI (or if above .200 a "super-extreme DUI.") These are sometimes referred to as “per se” charges, meaning that if the State can prove your BAC is above a certain limit, that alone proves a violation of the DUI statute.
Many “per se” violations are defended on the grounds that the means used to determine one’s BAC have a large range of accuracy. That is, even if the device used to test your breath or blood was working perfectly, your BAC may actually be lower than indicated. The State concedes that this range of accuracy exists. However, the real debate is over the extent of this range.
Let’s assume that an argument exists that expands this range of accuracy, or that some other flaw occurred in the testing process, that puts your BAC results below the per se limit of .08 percent. Does that mean the State cannot proceed with the DUI case? The State may still be able to prosecute the case, but it will be forced to rely on the charge that you were impaired to the slightest degree.
In practical terms, it would be very difficult for the State to proceed with the case if it cannot prove that your BAC was greater than .08. Moreover, there are certain legal presumptions regarding a person’s BAC that could further complicate the State’s case. However, the above situation illustrates a crucial point: You do not have to be drunk to be charged with DUI.
While I cannot remember a DUI client who was convicted with a BAC of less than .08, drivers should know that they do not have to be “drunk” to be charged with DUI. In addition, if you do get charged with DUI and end up beating the charge, the entire process will be costly and fraught with risk.
Thus, before you drink and drive, do not ask yourself “Am I too drunk to drive?” Rather, the question should be “Will the alcohol at all impair my driving?” Asking – and honestly answering – this question may keep you out of my office.