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Even the relatively recent so-called "per se" laws present problems. California DUI statutes now make it an offense to drive while the blood alcohol level is in excess of .08 percent, depending on the jurisdiction. The crux of such a DUI statute is that the question of whether the driver was actually under the influence is irrelevant: The law is satisfied by proof of blood-alcohol level alone. The new DUI per se law exists side by side with the traditional "under the influence" statute - and the defendant will probably be charged with both (he cannot be sentenced for both, however). These statutes are clear in defining the offense: Quite simply, it is a crime to drive while having more than a given blood alcohol level. But how is an individual to know what his blood alcohol level is? How can a driver know if his level is an innocent .07 or a guilty .08 percent? For without the benefit of constant blood-alcohol analysis, it is impossible for any person to accurately predict the percentage of alcohol in his blood at any point in time.
Unlike most crimes involving the occurrence of an incident of some sort, DUI concerns not an event but a condition. And unlike condition offenses such as being under the influence of narcotics, which offense involves the simple issue of presence or nonpresence of drugs that can be accurately determined by simple tests, the offense of DUI occurs only when the individual crosses over that vague and arbitrary line separating the drinker from the drunk. The definition of drunk hinges on a difference of a hairline. The presumption that any driver with an Intoximeter reading of .07 percent is not under the influence but that one with a reading of .08 percent is, may appear to be patently ridiculous. But such is the law.
DUI cases are, oddly, analogous to pornography cases. Uniquely, neither crime requires any specific intent, and neither consists of a definable offense. The Supreme Court struggles with concepts of "redeeming social value," "prurient interests," and "contemporary community standards," and upholds a ban on a book in one state while the book is permitted legally in another. The Court permits the showing of motion pictures that would clearly have been criminal a few years earlier. How does one specifically and predictably describe what is obscene? And how does one specifically determine the inner workings of the accused drunk driver's body and brain at a remote point in time? In pornography cases, at least the ultimate issue goes to the jury, which weighs the opinion testimony of various experts. In DUI cases, on the other hand, most states have "solved" the problem by instructing the jury that if the prosecution's chemical evidence indicates that the blood-alcohol level was .08 percent or higher, the defendant is presumed to be guilty. Or, even more expediently, the defendant is also charged with the per se offense, and he is guilty if his blood-alcohol level was that high.