NTSB Wants a .05% BAC for DUI Drivers- A Pennsylvania Perspective

The National Traffic Safety Board (NTSB) has made two startling proposals in its effort to combat drunk driving.  First, they would like to lower the BAC to .05% and second, they would like to make ignition interlocks a standard punishment for first offense DUI cases.

In both cases, the efforts of the federal government are not tied to safety.  Instead, they are tied to money.

Let's begin with the ignition interlock proposal.   Over 70% of all DUI cases in the United States are first time offenses.  Thus, only 30% of all DUI offenders are likely to re-offend.  Moreover, if we look at the multiple offense category, we can see that the number of individual offenders is even lower than 30%.  So...  Is there a need for ignition interlock?  Of course not.

With regard to the .05% standard:  We must first understand that DUI is not "drunk driving."  The intoxication "high" of alcohol is different in each and every one of us.  For me, personally, I am "drunk" after two beers because I have a low alcohol tolerance.  However, for others, a six pack just barely makes a dent in their normal behavior.  Thus, we must understand that not everyone who drinks is drunk.

How many drinks does it take to equal a .05% BAC?  The answer for most of us is 2.5 12 ounce beers.  Or, two 16 oz. beers or, just over a pant of beer.  If you are drinking at a microbrewery, you will be legally drunk (.05%) after just one beer.   Are you "drunk" after one beer?  Of course not.

The biggest issue here is money.  The federal government has the ability to impose this limit on the states by restricting federal highway funds from any state that does not comply with its wishes.  In the early part of the last decade, the federal government made this unequivocally clear when it mandated a change to .08%.

The government is long on platitudes about saving lives but short on research as to how a .05% BAC threshold would be favorable to the current .08% threshold.  This is because the federal government does not have any such research to support its scientific conclusion.  Rather, they simply want to play the political game of "drunk driving is bad."

Clearly, drunk driving is bad.  But, what is "drunk?"  The government's attempt to quantify drunk first began with the premise that a person with a BAC above a .10% was legally intoxicated.  This presumption forms the foundation of the most commonly accepted tests associated with DUI cases:  Field Sobriety Testing and Breath Testing.

Field Sobriety Tests are purportedly an objective means of determining whether the subject indivual has a BAC above .10%.   They are not sufficient to determine if a person has a BAC below a .10%.  They certainly are useless to determine if a person has a BAC of .05%.  Thus, the police do not have an objective means of determining whether or not he has probable cause to believe a person's BAC is above a .05%.  How many false arrests will result from a police officer's reliance upon the mere smell of alcohol.

DUI Breath Testing, which is clearly inaccurate for a number of reasons, relies upon a simulator solution that simulates a BAC of .10%.  In Pennsylvania, the BAC was not calibrated to determine if the BAC was below a .05%.  Thus, there is a substantial potential for an inaccurate result.

Finally, an most importantly, the lower BAC suggests a criminalization of two behaviors that, taken separately are not illegal.  First and foremost, it is not illegal to consume a couple of beers.  It is not illegal to safely operate a motor vehicle on the highway.  If the NTSB has its way, it will be illegal to stop for a couple of beers after work and return home a short time later.

We need to recognize that DUI does not happen in the inner-city.  DUI occurs in the suburbs and rural areas.  DUI disproportionately impacts males.  DUI disproportionately impacts the employed.  DUI disproportionately impacts those who live in rural and suburban areas. 

The MADD lobby has made DUI a difficult offense to defense because prosecutors, judges, and legislatures do not want to be seen as soft on "crime."  A good friend said this...  "There are three types of cases that a prosecutor will never negotiate-  Child Sex, Murder, and DUI - and of these three, DUI is only one that has no victim in over 95% of all cases."

More importantly the MADD lobby has created robot legislators who will adopt financial penalties for DUI that do not benefit DUI reduction efforts.  In Pennsylvania, DUI defendants pay surcharges totalling nearly $2000.00 including a "Crime Victim's Fund,"  a "Firearms Training Fund" and many others.


As a Pennsylvania DUI Lawyer, I earn a living helping people charged with DUI.  The increased scrutiny upon the motoring public will certainly raise my income.  However, I would sacrifice this extra income for the protection of knowing the government is making rational decisions to combat DUI rather than simply attempting to grow revenue by treating good people like criminals.

The Morgan Law Firm
www.fdeanmorgan.com
1-888-821-9446