A little over a decade ago advocacy groups like Mother’s Against Drunk Driving assured the country science proved a 0.08 BAC was unequivocally the appropriate legal threshold to set for drunk driving. As a result of these assurances the last of the States lowered their per se intoxication level from 0.10 to 0.08 in 2004. This decade old benchmark for intoxication is under fire again. This week the National Transportation Safety Board (NTSB) recommended that all 50 states lower their per se intoxication level (BAC) to 0.05.
Under current law, a typical 180 lb male could hit 0.08 after about 4 drinks. The same person would be at 0.05 after about 2-3 drinks. For women, even fewer. However, would lowering the BAC for intoxication criminalize responsible behavior? Would the net be too broad? Persons who had not lost the normal use of their mental or physical faculties could face criminal prosecution and humiliation. Interestingly, the NTSB also recommended that financial incentives be offered to states who implement the changes.
Beyond this, enforcement and prosecution of 0.05 would be problematic. In Texas, before an officer can legally request someone submit to a breath or blood test (or before a search warrant for blood could be obtained), the officer must develop probable cause the person was driving while intoxicated. Standardized Field Sobriety Tests are used by law enforcement to develop this probable cause. However, at a BAC of 0.05 just about every person will pass these tests. At 0.05 everyone can walk-the-line and stand-on-one-leg. At 0.05 few persons have slurred speech or the other typical indicia of intoxication. At 0.05 most persons will perform satisfactorily on divided attention tasks . . . the bread-and-butter of DWI police investigations. The motions to suppress would be legion. Every time a cop stretched the facts to develop this “probable cause” (wink, wink), DWI defense lawyers will mercilessly attack and forever clog an otherwise overworked criminal justice system claiming there WAS NO probable cause to arrest or probable cause to obtain a search warrant. A Bryan-College Station lawyer familiar with probable cause requirements can be invaluable in these circumstances.
What do you think? Do you want government to limit your drinks at dinner to 1-2? I’d love to hear your thoughts.
Stephen Gustitis is a criminal defense lawyer in Bryan-College Station. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He is also a husband, father, and retired amateur bicycle racer.