Bill introduced to reduce BAC limit to .05

This week a bill has already been introduced in the S.C. legislature that would reduce the BAC limit to .05.  The bill proposes a new scheme of graduated penalties, for below .07, .07 to .12, and .13 or greater.  It would change the lower end of the BAC range in the DUI statute as well as the DUAC (driving under unlawful alcohol) statute from .08 to .05, and it would change the inference levels in 56-5-2950(G).

Under the current statute, the jury is instructed that they can “conclusively presume” that the defendant was not under the influence if the BAC was .05 or less.  From .05 to .07 there is no inference, and if the BAC is .08 or greater, the jury can infer that the defendant was under the influence.  Under the new proposed .05 statute, the jury can conclusively presume that the defendant is not under the influence if their BAC was .02 or less.  From .02 to .05 there is no inference, and if the BAC was .05 or greater, the jury can infer that the defendant was under the influence.

The proposed change is not based on any kind of science.  We currently presume non-intoxication at .05.  Now, with no scientific basis whatsoever, we are going to presume intoxication at .05?  Under the DUI statute, it is illegal to drive a motor vehicle “while under the influence of alcohol to the extent that the person’s faculties to drive a motor vehicle are materially and appreciably impaired,” which is directly contradicted by the arbitrary limit of .05 – a person’s faculties to drive simply are not materially and appreciably impaired at .05.

Under the per se statute, a person can be charged and convicted after having 2-3 drinks.  Some individuals, depending on their metabolism, gender, and size, may be charged and convicted after having one drink.

How will law enforcement develop probable cause for a .05 DUI?  The standardized field sobriety tests were designed to test for intoxication at a level of .10.  Most people who would register at .05 will not show signs of intoxication and will not “fail” the standardized field sobriety tests unless they are overweight or have other physical problems that would cause them to “fail” anyway.  Will the new probable cause standard be “I smelled alcohol?”

Changing the limit to .05 will make more money for the government.  It will make more money for attorneys.  It will bring the MADD mothers one step closer to prohibition.  It will give politicians something to campaign on until it is passed, but it will come home to roost when legislators and their friends and contributors start getting caught in the net.

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