Were laws making driving above a stated blood-alcohol limit an offense unconstitutional on due-process or equal-protection grounds?

Plain-English summary

In 1999, the South Carolina Attorney General's office reviewed the constitutionality of laws that define a driving offense by a specified blood-alcohol threshold. The letter surveyed decisions from several states and concluded that such per se statutes had generally survived constitutional attack. It discussed due process, equal protection, and the state's power to protect public health and safety. It did not analyze a particular newly enacted South Carolina bill.

The writer said courts had rejected the argument that drivers lacked fair warning because they could not know their exact alcohol concentration. She explained that a per se law defines the offense rather than conclusively presuming impairment; the prosecution still has to prove the statute's elements beyond a reasonable doubt. The letter also discussed rejected equal-protection challenges and concluded that such laws fell within a state's police power to promote road safety.

Currency note

This opinion was issued in 1999. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did the opinion require proof of actual driving impairment? A: No. It described per se statutes as defining the offense by a specified alcohol level, with prosecutors still required to prove every statutory element beyond a reasonable doubt.

Q: Did uncertainty about a driver's exact alcohol level make these laws too vague? A: The writer said courts had generally rejected that argument, reasoning that consuming alcohol warned of the possibility of crossing the legal threshold.

Q: Did a per se law shift the burden of proof to the driver? A: No. The opinion said the cases it reviewed left the state with the burden of proving the elements of the offense.

Q: What equal-protection objections did the letter discuss? A: It described challenges involving changed testing procedures, limits on plea bargaining, and prosecutors' choice of charges. The cited courts rejected those claims on their facts.

Background and statutory framework

The requester asked about per se blood-alcohol offenses generally. The letter used an illustrative threshold but did not provide a current South Carolina limit. It grouped recurring challenges into vagueness or notice, irrebuttable presumption, burden shifting, equal protection, and police power. The cases it discussed came from several jurisdictions. This was an informal opinion by the signing assistant attorney general.

Citations and references

• Notice: Burg v. Municipal Court, 673 P.2d 732 (Cal. 1983), cited for fair warning.
• Offense elements: State v. Howren, 323 S.E.2d 335 (N.C. 1984), cited in the due-process discussion.
• Police power: State v. Tanner, 472 N.E.2d 689 (Ohio 1984), among the cases cited for road-safety regulation.

Official title

Concerning the constitutionality of per se blood-alcohol offense statutes involving the operation of a motor vehicle.

Requester

The Honorable J. Gary Simrill, Member, House of Representatives

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/april-7-1999/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/99apr7simrill.pdf

Original opinion text

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The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES M. CmmoN
AITORNEY GENERAL

April 7, 1999

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The Honorable J. Gary Simrill
Member, House of Representatives
326B Blatt Building
Columbia. South Carolina 29211

Re:

Informal Opinion

Dear Representative Simrill:
Attorney General Condon has forwarded your opinion request to me for reply. You have asked for an opinion on the constitutionality of per se blood-alcohol offense statutes involving the operation of a motor vehicle.

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Per se blood-alcohol offense statutes are statutes directly proscribing driving or being in control of a motor vehicle while having a blood-alcohol level in excess of some established percentage. For example, the statute may read "it is unlawful for any person who has a 0.10 percent or more, by weight, of alcohol in his or her blood to drive a vehicle." The term "per se blood-alcohol offense statutes" (hereinafter "per se statutes'') is a generic name for these types of statutes as most also prohibit driving with an alcohol level in excess of some established percentage in the breath or urine. Virtually every state has now adopted per se statutes. As to be expected, these statutes have been the subject of numerous constitutional attacks. Per se statutes have withstood these attacks as the courts have, with virtually no exception, rejected the defendants' constitutional claims and upheld the statutes. In light of these cases, it is safe to say that per se statutes are constitutional.

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Representative Simrill
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April 7, 1999
Defendants have shown great imagination in challenging per se statutes and I will not repeat all of those challenges here. Instead. this opinion will only discuss the most common constitutional challenges; that per se statutes violate the due process and equal protection clauses and exceed the state's police power. A more detailed discussion of the variety of challenges rejected by the courts can be found in 54 ALR4th 149.

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1)

Many challenges to per se statutes have been based on the Due Process Clause. Often times these challenges have alleged that per se statutes violate due process because of at least one of the following: (A) vagueness or lack of notice. (B) creation of a conclusive or irrebuttable presumption, (C) impermissible shifting of the burden of proof. I will briefly discuss each one of these issues. " A)

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Due Process

Vagueness or lack of notice

One of the most common arguments raised by defendants is that per se statutes violate the Due Process Clause because they are void for vagueness. This argument, which has been routinely rejected by the courts, is based on the contention that individuals have no way of knowing the level of alcohol in their system and, therefore, do not have fair warning when they have crossed the threshold alcohol concentration. State v. Howren, 323 S.E.2d 335 (N.C. 1984); Lester v. State, 320 S.E.2d 142 (Ga. 1984); Burg v. Municipal Court, 673 P.2d 732 (Cal. 1983); State v. Franco, 639 P.2d 1320 (Wash. 1982); State v. Thompson, 674 P.2d 895 (Ariz. Ct. App. 1984). Courts have found that per se statutes meet the Due Process Clause's requirement that the law must give sufficient warning to an individual so that the individual may avoid the proscribed conduct. Lester v. State, supra, citing Rose v. Locke, 423 U.S. 48, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975); Burg v. Municipal Court, supra; State v. Franco, supra; State v. Thompson, supra. Sufficient warning to an individual does not come from knowing the exact level of alcohol in his system prior to getting into his vehicle but comes from the very fact that he has consumed a quantity of alcohol. See Burg v. Municipal Court, supra (the fact that an individual has consumed a quantity of alcohol should notify a person of ordinary intelligence that he is in jeopardy of violating the statute). Those who drink a substantial amount of alcohol within a relatively short period of time are given clear warning that to avoid possible criminal behavior they must refrain from driving. Id. Thus, recognizing that defendants have been sufficiently warned. courts have concluded that defendants who have had enough drinks to surpass the legal

Representative Simrill
Page 3
April 7. 1999
blood-alcohol level can hardly be called an ''innocent.'' trapped by an arbitrary. vague statute. Id.: Lester v. State, supra. B)

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Conclusive or irrebuttable presumption.

Another common argument is that per se statutes violate the Due Process Clause because they establish a conclusive or irrebuttable presumption of impaired driving ability which relieves the State of the burden of proving every element of the offense beyond a reasonable doubt. State v. V rnzel, 467 N. W.2d 86 (N.D. 1991 ): Lester v. State, supra; Burg v. Municipal Court, supra; State v. Howren, supra. This argument has also been routinely rejected by the courts. Courts have determined that per se statutes do not create a conclusive or irrebuttable presumption, but only define, in precise terms, the conduct proscribed. State v. Vo2:el, supra; Burg v. Municipal Court, supra; State v. Howren, supra. In other words, in enacting per se statutes. the legislature has merely stated the elements of the offense. The prosecution must still prove every element of the crime beyond a reasonable doubt. State v. Vo2:el, supra. In rejecting a defendant's challenge to its per se statute on this ground, the North Carolina Supreme Court in State v. Howren, supra, summed up its view as such: "[I]f this statute is unconstitutional then so is any statute that makes the doing of a particular act illegal." C)

Shifting the burden of proof

Defendants have also argued that per se statutes impermissibly shift the prosecutions' s burden of proof to the defendants in violation their due process rights. State v. VoQ:el, supra; Commonwealth v. Hernandez, 488 A.2d 293 (Pa. Super. Ct. 1985); People v. Ziltz, 455 N.E.2d 70 (Ill. 1983). This argument is similar to defendants' arguments regarding creation of conclusive or irrebuttable presumptions. As they did there, courts have also concluded that per se statutes do not shift the burden of proof as the State still has the burden of proving all of the essential elements of its case. People v. Ziltz, supra.

2)

EquaIPro~ction

Another popular argument raised by defendants is that per se statutes violate the Equal Protection Clause. As with due process challenges. these claims are also routinely rejected by the courts. Equal protection challenges come in a variety of forms and I \vill not attempt to discuss each and every one here. I vvilL hovvever. address three common equal protection challenges to per se statutes.

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Representative Simril!
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April 7. 1999
First. in State v. Howren. supra. defendant argued that he was denied equal protection because prior to January 1, 1985, an individual charged with driving while impaired \Vas given two chemical breath analyses. After that date. the requirement was changed to one breathalyzer test. Defendant claimed this change resulted in an arbitrary and capricious classification between similarly situated individuals. The court rejected this claim finding that the statute treated all those charged before Januarv 1 the same \vav and all those charged after January 1 the same way. Thus. the equal protection clause was not violated because the statute treated all those in each group in an identical manner. j.._..

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Second, in State v. Thompson, supra, appellant argued the per se statute violated equal protection because it did not permit plea bargaining. whereas plea bargaining was recognized for other more serious crimes. The court found that the legislative classification of the statute consisted of all persons in control of a motor vehicle with
.10% or more by weight of alcohol in their blood. The court rejected appellanf s equal protection claim concluding the statute did not create a separate classification of offenders since the statute applied to all person who are driving or in control of a motor vehicle. Finally, in State v. Gerdes, 252 N.W.2d 335 (S.D. 1977), the law provided that the prosecutor had the choice of charging under the per se statute or the driving while under the influence statute, which placed a greater burden of proof on the state. Defendant claimed that this choice violated equal protection. The court rejected defendant's claim finding that the prosecutor is granted very broad discretion without violating the equal protection clause. Without any evidence that the prosecutor charged the defendant in some discriminatory manner, such a complaint cannot stand. 3)

Police Power

The final common challenge to per se statutes is that they exceed the state's police power. It is really too late in the day to argue that per se statutes exceed the state's police pO\ver to enact laws to protect the public's welfare as the statutes have withstood this challenge on numerous occasions. Courts have concluded that per se statutes. like driving vvhile impaired or intoxicated statutes, promote the health. safety and welfare of the citizens. State v. Tanner, 472 N.E.2d 689 (Ohio 1984 ): State v. Rose, 323 S.E.2d 339 (N.C. 1984): Burg v. Municipal Court, supra: People v. Ziltz, supra: State v. Franco, supra. If it were found that per se statutes did exceed the state ·s police povver. then so to would driving while impaired or intoxicated statutes and statutes setting speed limits.

Representative Simrill
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April 7, 1999
People v. Ziltz. supra. Such is clearly not the case.
Conclusion

The lmv regarding per se statutes is well settled. These statutes have been the subject of endless legal attack and, for the most part, have escaped unscathed. Therefore. I believe it is safe to say that per se statutes are constitutional.

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This letter is an informal opinion only. It has been written by a designated assistant attorney general and represents the position of the undersigned attorney as to the specific questions asked. It has not, however, been personally scrutinized by the Attorney General nor officially published in the manner of a formal opinion. With kindest regards, I remain 9ruly yours,

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Paul M. Koch
Assistant Attorney General