The National Transportation Safety Board (NTSB) Recommends That All States Lower the Per Se DUI Legal Limit From 0.08% BAC to 0.05%

The motivation for the change is to reduce the number of road deaths caused by drinking and driving. According to NTSB estimates, drunk driving accounts for a third of all road deaths.

NTSB Chairman Debbie Hersman said before a vote by the panel on a staff report, "This is critical because impaired driving remains one of the biggest killers in the United States."

Some of the more recent actions that have reduced drinking related deaths are federal and state policies, tougher law enforcement, and stepped up national advocacy. The NTSB staff report estimates, lowering the per se BAC for drinking and driving to .05% would save 500-800 lives annually. In the last 30 years, 440,000 lives have been lost in the United States due to drinking and driving.

Although the individual per se BAC limits are set by individual states, the federal government can be very persuasive convincing states to lower their BAC limit. For instance, the federal government can require such laws before dispersing highway funds.

Not all groups approved of the measure, most notably the American Beverage Institute (ABI). Sarah Longwell, managing director, stated the measure was "ludicrous" and "would criminalize perfectly responsible behavior." Her position is that the NTSB should focus on drivers with higher BAC percentages.

Interestingly, Ms. Longwell refers to MADD as "anti-alcohol activists" and questions whether the science has changed from 10 years ago, when MADD pushed for the .10% BAC standard. This question was not answered, nor was the NTSB number that the move will save 440,000 lives a year explained.

The two positions, between the NTSB and ABI, lacks firm numbers for either of their positions. What is missing is a study that measures the BAC for impaired drivers who were responsible for road collisions resulting in death. The study must be that specific- often when looking at the raw data of studies we find that the stated conclusion does not match the underlying data.

The NTSB also pushed for states to act more proactively in confiscating drivers licenses, installing IIDs for first time offenders, and using "passive alcohol sensors" that can measure alcohol in the air during a traffic stop.

The motivation behind the law is clear- to end drunk driving deaths. However, it is unclear whether the law matches the motivation. That is, without firm data indicating the number of deaths associated with impaired drivers at a certain BAC, then it is a leap of faith, and not data, that justifies lowering the per se limit to save lives.

However, the ABI, and other organizations involved in the hospitality industry, have an interest in keeping patrons comfortable having a drink or two with their meals. Otherwise, they may be too concerned with not creating a criminal record than to have a drink or two.

Mental affects from alcohol affect a person's decision making, including ordering dessert, for instance. From there, the patron may leave a bigger tip, or have one last over-priced after dinner drink. I suppose the perfect per se BAC limit is one which allows for impairment by over-priced alcohol, but does not affect their ability to avoid a church bus on the way home.

The problem with reasonable, scientifically based alcohol legislation is that there is a lot of power in the illogical, emotionally based impacts of drinking and driving victims. The NTSB chose Tuesday, today, to announce the legislation as the 25th Anniversary of the Carrollton Kentucky bus collision which resulted in the deaths of 27 people and 34 more were injured. The bus, which was a modified tour bus from an old school bus, contained members of the Assembly of God church on their way to Kings Island theme park. It is, undeniably, a tragedy.

Careful arguments must be made as the battleground is littered with emotional landmines. I propose that the proper change to save lives does not involve reducing the per se limit of 0.08%, but education to help people understand exactly what it is to be 0.08% BAC, or even a 0.04% BAC. Because regardless of the per se law in 1988, the impaired driver in the Carrollton collision was 0.24% BAC, and a 0.15%, 0.10%, 0.08% or even 0.05% per se law wouldn't have made a lick of difference to those that survived the crash, but were killed by the resulting fire that engulfed the interior of the bus.

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The National College for DUI Defense

Until a few years ago, attorneys attempting to defend a client against drunk driving charges were general practitioners who had little, if any, understanding of the nature of the offense. They were unfamiliar with such DUI investigatory methods as field sobriety tests, and there was an almost complete lack of seminars on how to defend these clients.
Most importantly, defense lawyers were completely ignorant about the complexities of blood alcohol analysis — whether of blood, breath or urine samples. How does this "breathalyzer" work? What is "infrared analysis"? "Gas chromatography"? How is alcohol metabolized in the human body? What is "Widmark’s formula"? "Hematocrit"? What is "retrograde extrapolation" and how does that work? What physiological variables occur between individuals? What medical conditions can effect a breath reading and how? What happens if blood samples ferment or coagulate?
Chemical analysis of blood, breath or urine involved knowledge of such highly technical fields as physiology, organic chemistry, physics, biophysics, electrical engineering — subjects far beyond the experience and training of lawyers.
Then about 17 years ago, ten of the most prominent DUI defense attorneys in the country met in a hotel conference room near Chicago’s O’Hare Airport.  Over the following three days they hammered out plans for a new professional organization: "The National College for DUI Defense". They created this as a non-profit organization dedicated to improving the quality of the DUI bar, primarily through providing educational seminars, and donated their own money for initial funding.  An important secondary purpose of the organization was to address the problem of insularity in the profession — the isolation of lawyers; the College would be a tool with which attorneys across the country could share information, ideas and experiences.
I am proud to say that I was one of those ten founders, and have since served as Dean and on its Board of Regents. For each of us, the College was a true labor of love.
The first national seminar was held at Harvard Law School. It was an intense 3-day series of lectures, demonstrations and workshops, featuring a faculty of the top lawyers, scientists and forensic toxicologists in the field.
The experiment was a huge success, and has been repeated every July at Harvard for the past 16 years. In fact, the College’s governing Board of Regents soon expanded this educational effort by creating a second 3-day annual seminar in the winter. This proved another resounding success: in the recent session held in Las Vegas, there were over 500 lawyers attending from all over the country.  Other annual seminars, one focusing on blood-alcohol science exclusively, soon followed.
The National College for DUI Defense also created an internet website, along with an email discussion group where attorneys could share information and ideas. There are currently hundreds of members across the country using this forum — and discovering, for example. that what one lawyer in Texas has found effective in dealing with the effects of diabetes on breath tests can be helpful to another in Oregon.
Having provided the means to develop greater skills in this demanding field, the College next addressed the need to recognize those lawyers who had achieved the highest levels of competence. Within recent years, they began certifying attorneys as specialists in DUI defense. In order to be Board-certified, an applicant must satisfy demanding requirements of practice and trial experience, as well as pass intensive written and oral examinations.
Most recently, the College has been successful in applying to the American Bar Association for recognition of a new legal specialty: DUI defense. After considerable study, the ABA went further and recognized the National College for DUI Defense as the sole organization authorized to certify attorneys as specialists in this new field.
Today, with headquarters in Montgomery, Alabama, the College has a membership of over 1200 attorneys across the country.  It continues to sponsor or c0-sponsor numerous national seminars annually, including the original seminar at Harvard Law School; maintain an extensive online library of legal and scientific literature related to drunk driving litigation; contribute funds and support to Supreme Court appeals involving important DUI-related legal and constitutional issues; supervise demanding ABA-approved oral and written exams of attorneys applying for certification as DUI specialists; and provide a busy online discussion forum for its 1200+ members and selected blood-alcohol scientists to share ideas, problems and solutions.
The result: if you are some day accused of this demonized offense, you are more likely to have an attorney who understands the very complex legal and scientific issues involved — in other words, you are more likely to realize your constitutional right to competent counsel and due process.

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