Could the legal limit for DUI be a .05%?

Robert Miller
Aug 22, 2017 · 4 min read

Orange County, California, has miles of beautiful beaches, many luxury homes and yachts, and conservative politics. It also has law enforcement, prosecutors, and police officers that are very strict about punishing people that are found to be drunk driving.

As an Orange County DUI lawyer, I see hundreds of cases each year, and try to keep up with the politics and pending laws related to DUI. There is a movement that started in Orange County, that could spread nationwide, to lower the legal limit for DUI from a .08% blood alcohol level (bac) to a .05% bac.

The National Transportation Safety Board (NTSB), the agency of the Federal government that advises and sets policy for transportation of all kinds, is now not only pushing for new laws, but currently recommends that people who have a blood alcohol level of .05 be considered drunk or presumed under the influence.

The NTSB believes that lowering the legal limit will prevent accidents with all types of transportation — airplanes, trains, commercial vehicles, like trucks and buses, and automobiles.

As driving under the influence of drugs (DUID) becomes a bigger category of crimes than alcohol, traditionally drunk driving involving alcohol has been in the past one of the biggest causes of highway accidents and fatalities. The new law recommended by the NTSB would drop the recommended legal blood alcohol content, or BAC, from .08 to .05.

Most states take their cue from the National Highway Traffic Safety Administration and set their limit at .08. Making state law match the federal .08% limit makes states eligible for federal funding through grants for DUI funding. (In the State of Maryland only, it’s a .07 under MD’s state law).

But studies show that the biggest category of drunk drivers are those that have a blood alcohol concentration of a .15% or higher — double the legal limit. It’s unlikely that will change if the .08 limit drops to a .05.

There has been an 80% drop in the incidence of driving over 0.08% since 1973, according to the 2013/2014 National Roadside Survey. Dropping the legal limit should nearly double the number of arrests, and that’s a lot more fine money coming in to fund law enforcement and all the industry that lives on DUI fines, and fees, including insurance companies, alcohol schools, and court funding.

Right now in California, there is a gap in the presumptions — that is, the amount at which you are presumed to be under the influence. Under 0.05 you are presumed not under the influence. Over 0.08 you are presumed under the influence. In between, there is no presumption. What happens when the per se law drops? What is happening now as the NTSB and others are lobbying for the change?

One of the things I think that the government criminalists and other DUI expert witnesses are doing is confusing “impairment” with “intoxication” or “under the influence.”

“Impairment” is defined as any statistically significant negative change from normal, and I the scientific articles do too. But too many people read “significant” in the lay sense of “substantial” rather than the scientific sense of “not caused by random chance” when they quote from these articles. There can be a big difference between when something is “significant” in the mathematical sense and when something is “significant” in the “should I care about this” sense.

“Under the Influence” is a legal term of art that means that the impairment has risen to a level where it is no longer permissible to drive due to the increased risk of safety to others. The law is applied to discourage this behavior. So in my mind, some impairment is allowable. We don’t always go out on the roads at our best. Sometimes we are tired, sometimes we are sick, sometimes we are distracted. That adds a certain amount of risk to driving. We eat, drink, dial our cell phones, eat, talk to the kids. That adds a certain amount of risk. We accept that. When someone has a little bit of impairment from alcohol, from typical social drinking, the impairment is of the same magnitude, or less, as some of these other normal risk factors. So how can we say what risk is too much risk?

So if everyone is “impaired” at 0.05, all they are saying is that there is an effect that can be distinguished from sober. If everyone is so impaired as to be incapable of driving safely, then they are saying something different, that everyone is “Under the Influence” at 0.05. And as a DUI defense attorney in Orange County, I want to understand how they define that, and how they justify that.

Some of that will require a clear definition of the terms and the criteria for being “under the Influence” in the legal sense, and according to these “scientists.”

When someone is too impaired to drive is in my mind more of a legal than scientific question. I don’t believe there is a scientific definition of completely unsafe. It is up to society to decide the legal threshold of risk they are willing to tolerate. Scientifically, all we can do is quantify the risk and the extent of alcohol’s effects. Science is a method of investigation.

That said, I can explain a rationale for the 0.08 law, based on a number of crash risk studies, culpability studies, simulated driving, and laboratory studies of complex reaction time, divided attention skills and the like involved in driving, and personally I can accept drawing the line there.

It will take much more in terms of research, including studies on the detection and effects of being a .05%, to become law. But I do believe that the legal limit for DUI will be lowered.

-This article was written by Robert Miller, an Orange County DUI Attorney, who has been practicing DUI defense for over 23 years.

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