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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Lowering the DUI/BAC limit to .05

Posted On: June 26, 2013 by Bruce M. Robinson

The NTSB the transportation safety agency of the Federal Government is proposing to lower the legal limit for DUI to .05, as opposed to the .08 where it presently stands in all states including Maryland. Have no fear, it is highly unlikely this change will pass congress at this time substantially in light of the fact that Congress can't agree on the color of the sky on beautiful sunny day. However, I imagine that the matter will continue to be brought up until one day it does pass Congress. You see, many other countries already use the .05 standard for impairment as the powers that be have conducted studies and feel that drivers begin to be impaired at this low level.

This proposed change is interesting on a number of levels. To begin with BAC level used to .15 for impairment and then the Government lowered it to .10 feeling that was the proper level for impairment and then changed it to .08. Interestingly, the Government appears to continue to do testing and the number for impairment continues to drop. Perhaps the alcohol level in drinks is getting stronger or perhaps alcohol in general is reacting differently to people then it did in the "old days". Perhaps these are just arbitrary figures in the first place on the way to a .00 which ironically this DUI attorney feels should be the limit for driving.

You see, all these BAC numbers are arbitrary and what law enforcement does not tell you is that even with a .08 limit, if you blow a .05 at this time, you are still under arrest! They simply call in impaired as opposed to under the influence and most drivers are unaware of that. Most drivers wonder how they are being arrested on a .05 or .06 but it happens all the time.

The only way to take the arbitrariness out of the equation all together is to simply make a bright line for drivers to abide by and then everybody knows what the story is and how to stay out of trouble. Ie. If the limit was .00 then drivers know not to drink anything and you're fine. However, when the limit is .08 or .05 what does that actually translate into? Can you have one drink? Can you have two drinks? Well, statistically, you can probably have two drinks under these models but the problem is if the police pull you over for any reason or no reason or a made up reason, once they smell alcohol on your breath your are getting popped and taken to the station. You see, law enforcement does have quotas they need to keep up with (just watch CNN to learn about the non-existant quotas on the news today). Anyway, even if you blow a low number like .05 or lower, you're already at the station, an arrest has been made so your going to be charged with this crime and your going to have to defend yourself with a lawyer in court. Thus, in some respects it almost doesn't matter what the legal BAC number is because whatever it is, its lower then the stated number. This method only hurts the uniformed driver who thought he was being lawful by driving at .04/.05.

Thus, lower the BAC limit all you want, it makes little difference, it is equally confusing and misleading. The only fair, clear and bright line approach to do is to set the limit at .00, at least drivers will know where they stand in that situation and can make an informed decision about drinking and driving.

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Over the limit- Under Arrest ?

I have always maintained that DUI defense in Maryland is a strange animal. DUI law it seems, is the only criminal field where the accused faces significant jail time and other life altering problems yet the defendant's rights are severely limited. That is, limited Miranda rights, false advise by the police and limited access to counsel. I have previously written that the police can and do ask a lot of incriminating questions prior to making a formal arrest, without Miranda warnings, and can use the responses against you in court to advance your conviction.

However, we now have the State of Maryland promulgating false advise to the citizens of this State. How many readers have seen the digital signs on Baltimore's beltway 695 that say "Over the limit- Under Arrest?" That sign implies to the driver, under the limit, not under arrest; everyone knows the legal limit is .08. So as long as you stay under .08 you have no problem- just like the sign says, right? Ehhh, no.

Many clients come to the office wondering how they were charged with an alcohol related offense when they only blew a .07 or less (.06, .05, .04, etc.). The nasty little truth is that there is another charge called DWI or driving while impaired. The courts and or the prosecutor generally lean towards DWI when they see a number like .06 or .07. If you blow in that range you will be arrested by the police and charged accordingly. You will face many of the same problems as if you blew a .08 or better. In fact, I see many defendants with numbers less than .06. I recently had a client blow a .03 in Prince George's County; he was arrested and defended by my office; of course we got him off the charge but he still had to retain counsel and go through the motions.

Importantly...

Maryland driver's should at least be properly advised by the State of Maryland. If the government is going to take the time to place a public service safety announcement, I believe it should at least properly advise the drivers of the law. A true statement would be "If you have alcohol in your system [at any level], you are probably going to be arrested [officer's discretion]. If your level is .06 or more, you absolutely will be arrested."

That is the truth- and you heard it here first. Pass it on.

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What should the BAC legal limit be?

It's simple, the level should be zero. That way all drivers know not to drink if they are driving a car. Very simple and clear for all parties. Simple to enforce too.

The present system is the dumbest possible thing because it tells drivers they may in fact drink alcohol but they must know subjectively when to stop drinking, which gets harder to do once consumption has begun. Then people have two questions to answer, am I over the legal limit or not and will I get caught. If they do get caught, can it be beaten?

The easiest most clear cut and god forbid intelligent thing to do would be to make the limit zero, then everybody knows EXACTLY where they stand before turning the key.

But that would be way to easy and make too much sense for any US Government to employ. They would rather employ stupid mottos like over the "limit" (.08) under arrest which is not even remotely accurate or fair to the driving public as it is not an accurate reflection of the law. Thus we have a stupid subjective law (ie. The number changes over time and will continue to do so in the future) which the government itself does not know the ramifications to properly warn the motoring public.

What a ridiculously silly situation we find ourselves in; well, at least until somebody with a brain figures out this is not an effective way to save human life. It is stupid.

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