South Carolina DUI – are we moving to a .05 BAC limit?

Today the National Transportation Safety Board (NTSB) announced their recommendation that all 50 states adopt new laws reducing the blood alcohol concentration (BAC) limit for prosecution to .05.  The NTSB says that research supports the notion that a person with a BAC of .05 or greater is impaired and should not be driving.

Although the NTSB is an “independent” agency that cannot change the laws and can only make recommendations, it is influential.  Along with the MADD mother’s massive lobby in Congress, the NTSB’s recommendations continue the push towards “zero tolerance.”  If the federal government were to adopt the NTSB’s recommendation, the next step would be to pass legislation that would force the states to comply with what the federal government wants – as with the prior pushes lowering presumptive BAC levels for DUI prosecutions, federal highway money would be tied to individual states’ compliance with what the federal government believes each state’s DUI laws should be.

There is nothing that makes .05 a reasonable cut-off.  The first drunk driving laws in our country, dating from the early 1900’s, made it illegal to drive while intoxicated, with no particular BAC level tied to the statutes.  Later, in the 70’s and 80’s, with the development of BAC testing and with a concerted push by groups like the MADD mothers, DUI laws were tightened and many criminalized driving with a BAC greater than .15.  Research showed that a person with a BAC greater than .15 is impaired and should not be driving.

Uniform state laws were later passed, under pressure from the federal government, to criminalize driving with a BAC greater than .10.  Research now shows that a person with a BAC greater than .10 is impaired and should not be driving.  In the last decade, the federal government required the states to lower their cut-off to .08 and to enact “per se” statutes like South Carolina’s Driving with an Unlawful Alcohol Concentration (DUAC) statute.  Research now shows that a person with a BAC greater than .08 is impaired and should not be driving.

Now research shows that a person with a BAC greater than .05 is impaired and should not be driving?  Was the research wrong the last three times, but now it is right?  Each time the limit is changed, it is an arbitrary decision that has nothing to do with “research.”  It is moving us a step closer to “zero tolerance” which is the ultimate goal.

Every person’s tolerance for alcohol is different – determined by height, weight, gender, metabolism, food consumed with the alcohol, and other factors – which is not accounted for in the DUI laws or in the mechanisms of the various methods of testing for BAC.  The average person who consumes 4 alcoholic beverages in one hour’s time will likely register .08.  That does not account for the individual’s adsorption rate or the other factors listed above.  Consequently, one person who registers a .08 may be intoxicated while another may not be.

The average person who registers .05 may have had 2-3 alcoholic beverages in an hour’s time.  A small female who registers .05 may have had one alcoholic beverage.  To change the presumptive BAC level to .05 would criminalize responsible behavior – a person who has two beverages at a restaurant with their meal and then drives home, who is pulled over for speeding or goes through a DUI checkpoint may blow a .05 on the breathalyzer and is now subject to jail and a subsequent prosecution that can could result in loss of their license, substance abuse counseling, astronomical insurance rates, a criminal record, and even a jail sentence.

Is a person with a BAC of .05 more impaired than a person who had nothing to drink?  Almost certainly, to some degree.  The only way to effectively stop automobile accidents and fatalities is to outlaw automobiles – it is the price that we pay for convenient, fast, personal transportation.  Where do we draw the line when criminalizing driving conduct in our efforts to make the roads safer?  Many jurisdictions have passed laws criminalizing texting while driving.  Some have criminalized talking on a handheld phone while driving.  What we really want to criminalize is any kind of “distracted driving” that could result in an auto accident – should we criminalize adjusting the radio while driving?  Putting on make up while driving?  Eating while driving?  Driving with young children in the back seat (if you have young children, you understand)?  Driving while sleepy?  My wife is reading over my shoulder, and she says spiders in the car should be criminalized.

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