How Many Beers Can I Drink Without Risking a DUI?

Let’s answer this right away. The correct answer to, “How many beers can I drink and still avoid a DUI?” is, “Anything more than zero.

Pennsylvania’s DUI statute (Consolidated Statutes § 3802) does not require that you meet a certain blood alcohol concentration (BAC) limit before an officer can justify charging you with a DUI. 

A charge for “less safe” impairment is the exact charge you would get if you blew 0.08%–0.99% BAC on a breathalyzer. The prosecution may also be able to add aggravating DUI factors if you were involved in an accident or had a minor in the vehicle.

Furthermore, rolling the dice with booze math that’s intended to keep you below 0.08% BAC simply has too many variables for you to be able to make an accurate prediction. As such, you should never assume that just because you, “only had two beers,” that you won’t blow 0.08% BAC or higher.

With that said, the justification for your charges can be relatively weak. This can give you opportunities for possible DUI defenses to reduce or sometimes even completely beat charges.

If you have any questions about your DUI arrest, reach out to Steven E. Kellis for a free case review. Call (267) 314-6693 or contact us online to schedule a free case evaluation with a Pennsylvania DUI defense lawyer near you.

Pennsylvania’s DUI Statute Allows for Arrests Below 0.08% BAC

The “magic” 0.08 BAC number came about only as a result of a nationalized campaign by Mothers Against Drunk Driving (MADD) that started in the 1980s. By the early 2000s, states were required to impose a nationwide standard of 0.08% BAC, or they risked losing some federal funding

The truth is that there is little science to support the use of 0.08% BAC as any consistent marker of driving impairment. There is, in fact, a campaign to lower the current BAC limits, which would put us more in line with other countries.

Ultimately, determining that you were too drunk to drive should not necessarily hinge on a somewhat-arbitrary BAC. Many drivers are still not safe to drive below 0.08% BAC. On the other hand, there hypothetically might be drivers that are not measurably impaired despite being over 0.08% BAC (Obligatory lawyer’s note: Do NOT test this!).

Knowing this – and knowing that they want to give officers some leeway when determining probable cause for an arrest – Pennsylvania legislators preserved language in their DUI statute that legally allows an officer to arrest you for less-safe impaired driving, regardless of whether or not you are below 0.08% BAC.

The exact language of Pennsylvania’s General Impairment law (Consolidated Statutes § 3802-a-1) is as follows:

“An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle.”

The law then goes on to set per se limits of: 

  • “General Impairment” (0.08 – 0.99) 
  • “High rate of alcohol” (0.10 – 0.15)
  • “Highest rate of alcohol” (0.16+)

Importantly, despite being below 0.08% BAC, a general impairment charge for being “less safe” is the exact same as a DUI charge for 0.08% – 0.99%.

How Can a Police Officer Justify Arrest Below 0.08% BAC?

Easily. They just have to list observations of your driving behavior and personal behavior that indicated that you were “rendered incapable of safely driving.” 

If the officer can document that you broke a traffic law or demonstrated behaviors that the average person can agree are “less safe,” the prosecutor will have an easier time trying the case. 

However, there are many occasions when an officer merely receives an admission of drinking or records a BAC greater than 0.00%, and they think they have probable cause to justify an arrest for DUI. 

The fact is, to be arrested for DUI, someone does not merely have to have:

  • Indicated less-safe behavior, or performed a dangerous action; and
  • Demonstrated that they have had alcohol sometime in the recent past

But that alcohol must have been what impaired them and caused them to be less safe, at least according to the letter of the law. 

Unfortunately, most district attorneys, judges, and even juries won’t see it that way. All they need is proof of danger and proof of alcohol consumption to agree that it was impaired driving.

On the other hand, an experienced Pennsylvania DUI lawyer may be able to argue otherwise. 

Defending Against a DUI When You Were Arrested Below 0.08% BAC

One of the most common defenses against such an arrest is to point out that the officer didn’t have a “reasonable suspicion” that the person had been drinking to the point of impairment. This defense can be especially effective when the defendant was either never BAC tested, or if their BAC results were far below 0.08%. 

If the officer argues “their speech was slurred and they could barely maintain their lane,” yet the driver only had enough BAC to indicate they drank some O’Douls three hours ago, then the officer’s highly subjective observations may be, rightfully, questioned by the jury.

However, we’ll repeat that General Impairment DUI convictions can and do still happen in Pennsylvania despite a low BAC at the time of the arrest.

Don’t Roll the Dice on Guessing Your BAC

Let’s pretend you can’t legally be arrested for DUI for being below 0.08% BAC, which can be the case in other states. Even then, you should never ration your alcohol consumption in an attempt to limit your BAC below 0.08% BAC.

Many factors go into how your body processes alcohol and how that alcohol ends up saturating your bloodstream. While those BAC-per-drink charts are based on some decently sound science, they make a lot of assumptions. Women and those with lower-than-average body weight can easily become intoxicated more quickly. 

Furthermore, having a low blood sugar can both cause your BAC to increase more than normal, and can cause greater impairment in comparison to someone with the same BAC who has recently eaten. This can mean you’re technically more impaired if you have diabetes or have not eaten recently.

One of the most damning facts that pokes a hole in the “I’ll just have two drinks and be fine” strategy is that your BAC increases dramatically even after you’ve had that last drink. You can try to game your BAC level all you want, but your liver doesn’t work on a schedule, and your body’s response can be unpredictable.

Know the Risks of Drinking and Driving, And Know Your Rights if Arrested for DUI in Pennsylvania

All of the above information is meant to argue one thing: you can be arrested for DUI no matter how much you choose to drink. It’s all up to the officer who decides you are a DUI suspect.

Even so, you do have legal rights once you have been arrested for a suspected DUI. You can appoint an experienced Pennsylvania DUI lawyer to represent you and defend against your charges. If you can demonstrate that you weren’t impaired as reported or that the officer violated due process, you may be able to reduce your charges, challenge certain evidence, or have charges against you dropped.

In any case, appointing a DUI defense lawyer in Pennsylvania can help you leverage your rights to fair prosecution and due process during your criminal proceedings. Find out what legal strategies you may have available during a free, no-obligation case review with Steven E. Kellis. Call (267) 314-6693 or contact us online to schedule your free consultation now.