Lower BAC – Good for a Raleigh DWI lawyer… But is it good policy?

Criminalizing Drinking and DrivingI wrote yesterday about the NTSB’s proposal to force states to lower the per se limit from .08 BrAC/BAC to .05 BrAC/BAC. The federal government can’t order the states to modify their laws. But the federal government has a lot of power – mostly in the form of highway dollars which are collected through federal gas taxes and then passed along to states but only if they follow certain federal mandates.

As I alluded to yesterday, deaths from what are termed “alcohol-related” accidents have been dropping for thirty years, even as the population of the United States has increased and even as miles-driven have increased. The decline seems to be independent of the BAC change from .10 to .08, suggesting that lowering the BAC did not result in more safety.

In addition, studies report that something like 4 million people admit to driving while under the influence of alcohol each year, but there are “only” about 10,000 to 12,000 deaths a year from alcohol-related accidents. I don’t meant to suggest that anyone should drive while impaired. Nor do I mean to minimize the hurt and pain that result to people or their families who are victims of drunk drivers.

It’s an open question about whether lowering the BAC will improve highway safety. MADD, the group primarily responsible for lowering the BAC from .10 to .08 culminating in federal legislation in 2000, has implicitly said as much in arguing that policymakers should focus on other policy instruments, including imposing an Interlock device on anyone who has a .08 or above and is convicted of a DWI.

DWI: All or Nothing

My view is different: generally I’m not in favor of zero tolerance rules. But in the case of Driving While Impaired offenses, zero tolerance makes sense. That’s because it’s very difficult for the average person to estimate high his BAC is before they get into a car.

I see too many people who come into my office, having been charged with DWI offense who insist that they were not impaired. And they may not have been impaired in the common language sense of the term. But when a breath ticket reads a .11, while there may be other explanations, including GERD, COPD and the inaccuracy of the Intox EC/IR II machines themselves, impairment will be a tough issue to fight at trial.

People are bad at estimating their BAC. Lowering the per se limit will make more people criminals because they have poorly estimated their BAC.

In addition, a BAC/BrAC of .05 or .08 or .10 perpetuates an industry of device makers whose existence depends on the purported accuracy of their instruments. And it will certainly increase the demand for good DWI lawyers.

A Proposed Solution

So what’s the solution? If, as a public policy goal, the state has determined that drinking and driving truly do not mix, then the state should have a zero-tolerance policy, the same that exists in North Carolina for people under the age of 21 who are stopped after having drunk any amount of alcohol alcohol.

Are there problems with this approach? Yes. People who have had barely any alcohol, but are pulled over or involved in accidents, would be potentially guilty of a DWI. People who have consumed certain kinds of energy drinks which have alcohol would be criminals if they drove a car soon thereafter. And so on.

Are there solutions? Yes. A first time offense of under a .08 could result in fines, community service, educational classes, a temporary suspension of a license and, importantly, also the opportunity to wipe the record clean following successful completion of a program.

Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.