Drinking AFTER Driving Illegal?

A stranded driver has a drink or two while waiting for a tow truck. That’s illegal, at least according to prosecutors in Kentucky.

However, the Kentucky Supreme Court has overturned the conviction of a man whose blood alcohol concentration (BAC) was measured at .08 an hour after his arrest. Prosecutors argued that it didn’t matter what his BAC was when he was driving, so long as it measured above the legal limit within two hours after he left his car.

However, the Supreme Court found that it’s illegal to drive while intoxicated, but it’s not illegal to be intoxicated after driving.

Blood alcohol concentration rises gradually after drinking -- it doesn’t suddenly jump to high levels. Therefore, a person can have a couple of drinks and then drive a period of time before any impairment begins to occur. And it will be even longer before an illegal BAC is reached.

Thus, for example, a person can consume a quantity of alcohol, promptly and legally drive to his nearby house, and then watch TV while becoming legally impaired. Or, more wisely, he can drive home from work and then enjoy a drink or two. In neither case can he now be convicted in Kentucky for having a BAC of .08 within two hours of driving. However, in many other states it remains illegal to become intoxicated after driving.

The state chapter of Mothers Against Drunk Driving (MADD) is displeased with the Kentucky Supreme Court decision and says “it breeds disdain for the law.”


  • Ortiz, Brandon. DUI defense gets a little easier: Court overturns conviction claiming alcohol level while driving didn’t mater. Herald-Leader, October 21, 2005.

NOTE: Although it is not illegal to drive after drinking with a BAC below the legal limit, the host of this web site recommends that people never drive a vehicle after drinking. This site does not present legal, medical or other opinion or advice and none should be inferred. The information provided is educational, and believed to be correct . However it should not be relied upon. Always consult a lawyer, physician or other professional for advice appropriate for specific situations and conditions.

Filed Under: Drinking and Driving