The big news in DWI law this week comes from Washington, DC where the National Traffic Safety Board voted to recommend that the 50 states and the District of Columbia lower the per se limit from .08 to .05 Blood or Breath Alcohol Concentration.
If adopted by North Carolina, the result would likely be that an awful lot of people who have a drink or two before getting into a car would now be criminals under NCGS 20-138.1, which defines driving while impaired offense for the state.
Impairment can be proved under the standard statute in one of several ways. The easiest for the State or North Carolina is to show through some chemical analysis – usually breath, sometimes blood, and rarely urine – that the driver of the vehicle had .08 grams of alcohol per either 210 liters of breath or per 100 milliliters of blood at a relevant time after the driving such that the alcohol was consumed during or prior to the driving. (Other impairing substances can constitute a DWI but are measured and defined differently.)
In the 1980 and 1990s, through the efforts of Mothers Against Drunk Driving, that number was lowered to .08 from .10 culminating in federal legislation in 2000 that tied federal highway funds to state laws that lowered the BAC/BrAC to .08. It is called a per se number because the number itself is prima facia evidence of impairment. Nothing more need be proven with respect to impairment, provided the state has proven the other elements of the crime. (In State v. Narron and State v. Simmons the appellate courts of this state held that a .08 result or above does not require the jury find someone guilty.)
As I’ve written about elsewhere, deaths from Driving While Impaired or alcohol-related driving have been on the decline since the early 1980s, largely prompted by educational efforts. Those declines were substantial even before the number was lowered from .10 to .08, meaning that people were already heeding the warnings about the dangers of driving while impaired.
As a percentage of total accident fatalities, alcohol-related fatalities fell from 60 percent to 41 percent, a nearly one-third reduction between 1982 and 2000. By contrast, the percentage of alcohol-related fatalities fell from 41 percent to 38 percent, or less than an 8 percent reduction between 2011.
MADD, of course, supports the reduction and the rest of the package proposed by the NTSB. MADD president, Jan Withers, writing in the New York Times, tells us “MADD’s priorities are to focus on all of the initiatives that are currently in the campaign, and not just single out the lowering of the current blood alcohol concentration level.”
As NBC News reports, “roughly 4 million people admit to driving while under the influence of alcohol.” This can be interpreted as either a travesty, as MADD, the NTSB, and various media outlets including the New York Times and NBC News.
Or it can be seen as proof that the vast majority of people who drive, having consumed a moderate or low amount of alcohol, do so without incident.
While this is not a recommendation that people drink and drive – indeed, drinking any amount of alcohol and driving is a crime in North Carolina in certain instances, including where the driver is under the age of 21 – it is a recognition that taking the truly impaired off the road should not be used to criminalize a very large number of people who, having had a single drink, are not impaired when they drive a car.