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High Crimes & Misdemeanors

How Low is Too High? New 0.05 Limit for a DUI?

Posted by Alan Levine | Mar 15, 2024 | 0 Comments

DUI Roadblock

Will other states follow Utah's example and lower the legal limit for alcohol consumption from 0.08 BAC (blood alcohol content) to 0.05? Washington, Hawaii, Connecticut and New York are states where that may happen in the next year or so. If those states do, can other states be long to follow? 

A 2000 study suggests drivers with a BAC between 0.05 and 0.08 are seven times more likely to be in an accident than those with zero alcohol in their systems. But even assuming the study has no flaws, if we really want absolute safety, just make driving with any alcohol in one's body illegal. Prohibition always works out just fine. 

As a DUI defense lawyer, my guess is a 0.05 BAC would come with pluses and minuses for my practice. For one thing, at least initially, I'd expect a lot more clients due more arrests.

People who previously had been fine with two or three drinks before getting in their car will now be caught in a much wider 0.05 BAC net. And we're not talking about accidents. Slight weaving within one's own lane, or a blown tail light lamp, already can lead to a DUI investigation and then arrest. Expect more of those types of cases. At some point, people might move from even a few drinks and then driving to not drinking at all, or making more use of taxis, Uber and Lyft. Lives and property would then be saved, and my DUI business tanks. But who knows? Truthfully, I doubt it. I think business will be fine.

But a negative with a lower BAC is I'd have to spend a lot more time fighting over more issues in more cases. 

The fact is, while an attorney in this field needs to be able and ready to try a case before a jury, and fight various pre-trial evidentiary motions beforehand, getting a case worked out without having to go to court is often a good thing. It's certainly less stressful for the client. So, if the DUI is solid from the perspective of the prosecution, but there is a fair offer on the table to plead out the case, and if the client can live with the deal, that's time, money and aggravation saved.

But if, for example, the legal limit is 0.05, imagine a soccer mom testing positive at 0.06 after, say, having a couple social drinks with the girls from the office Friday afternoon and then being stopped at a roadblock. She may well be incensed she's facing a DUI conviction – a rightly so. She didn't drive dangerously – there just happened to be a roadblock on her way home. And she's not pleading to a DUI because it feels unjust to her. 

As her attorney, not only will I fly-speck the videos of the DUI investigation to see if the officer assessed the SFSTs (Standardized Field Sobriety Tests) correctly (which I always do), but now challenging the working order of the Intoxilyzer (breath machine), or the adequacy of the draw and preservation of the blood sample, is necessary. Why more necessary than before? Because when a client looks like they're three sheets to the wind on a DUI video, fighting about the accuracy of a 0.15 BAC isn't usually as big a deal. Yes, there are exceptions. But with more DUI arrestees looking less and less inebriated under the above scenario, fighting over the accuracy of a 0.06 BAC becomes huge. And, it means involving expert witnesses more often, which drives up the cost of handling a DUI case. 

Another can of worms will be, if enough states go the 0.05 BAC route, the National Highway Traffic and Safety Administration (NHTSA) will need to re-assess what their assessments for intoxication mean. How many clues on the walk and turn now should count against a driver? As for the horizontal gaze nystagmus assessment (aka the 'eye test'), what does lack of smooth pursuit look like in someone close to a 0.05 BAC? The whole battery of various DUI assessments will need to re-assessed and re-considered for what information they're providing. Not that this is a settled area of forensic science as it stands!

The added costs of defending a DUI may mean loss of business for private attorneys as potential clients elect to get court-appointed lawyers. Thus, only those who can afford it will get the best defense possible. That's always a danger when seeking justice, but it's a problem that would be exacerbated with a 0.05 BAC legal limit. (This isn't to say there aren't great public defenders and court appointed lawyers, as well as private attorneys who are slouches – but often times you do get what you pay for.) 

The upshot is, laudable as the goals of organizations like Mothers Against Drunk Driving are, go too low with the BAC and there will be more average people with no addiction problems facing serious repercussions for their driving privileges and employment, not to mention the social stigma of having a DUI conviction. I doubt DUIs will becomes so common place that the shame of a DUI goes away. Not for most. Were it to be otherwise, then the point of lowering the BAC level will have been missed. But then again, we will all end up knowing far more people stopped for, arrested on, and even convicted of being DUI. Again, think of the success of prohibition. 

In the end, I don't think we'll see the legal BAC level lowered in Georgia anytime soon. Maybe it will happen in a few more states besides Utah, but it won't be in the southeast within the next five years – if ever. That's my prediction and if I'm wrong, I'll buy you a refreshing non-alcoholic beer to wash down a plate of delicious tofu "chicken" wings. No, to lower the legal BAC to under 0.05 will engender significant pushback from too many different interests groups – restaurants, bars and breweries just being some of the obvious ones. Lots of professionals, including lawyers, judges and lawmakers, like to have a drink or two after work. Doctors, nurses, accountants, teachers, electricians, plumbers, etc., etc., all like to have a social drink once in awhile. That's with friends, while out. We can't all be good little George Thorogoods getting muddled and fuddled home alone.

Just yesterday, I went to a fundraiser for a judge running for re-election. There were plenty of other judges there, lots of lawyers, and there were free drinks. Free alcohol makes the donation money flow. Hmm. So was that really free beer? Never mind. My point is, here in Georgia at least, no one besides a few well-meaning, but I believe misguided, interest groups like MADD have any desire to lower the BAC further. Heck, remember even George Washington won his first election thanks in no small part to buying drinks for his would-be constituents. Our first, and arguably our best, president plied the populace with hooch. And the hard stuff at that.

No, driving while over the legal limit isn't going away. Until Skynet gets rid of us problematic humans (which, admittedly may be soon) with our bad habits and stupidities, there's going to be alcohol consumption - and people doing dumb things - even dangerous things while drunk. Be it dumb while drinking or drinking while dumb, morality can't be legislated into existence; common sense and consideration can't be increased via regulation. Be it half empty or half full, someone is going to finish that beer.

But hey, that's just my take. What do you drink? I mean think?

About the Author

Alan Levine

You've been arrested for a DUI. Now what? Do you need an attorney? Almost certainly, yes. There's too much at stake in terms of your driving privileges, job and career, reputation, and normalcy of life, to just go this alone and hope for the best. And DUI law is not easy law. It can be more com...


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