ABA Journal


Criminal Justice

Should drunken-driving limit be lowered to .05? Researcher uses simulator to gather data

Sep 4, 2013, 10:40 am CDT


Do they have a simulator for how taxpayers will react to the need for more jail space?

By B. McLeod on 2013 09 04, 12:07 pm CDT

the government should set the limit at .01---no drinking should be allowed before driving! there is too much drinking as is---i'm tired of it.

By .01 on 2013 09 04, 1:31 pm CDT

I'll drink to that!

By mike on 2013 09 04, 2:48 pm CDT

Answer: Lower OUI BAC to .05

Question: How can we make felons of a significant portion of the adult population over 21?

By ACD on 2013 09 04, 3:02 pm CDT

here's an idea--criminalize bad driving, not drunk driving.

Speeding; 30 days in jail; $10,000 fine.

weaving out of your lane; 60 days.

run a red light; county year.

Hit a pedestrian or cyclist; lifetime license susp, vehicle impound, $50,000 fine.

drunk driving; no penalty; try your luck.

Seriously--what we are trying to stop is bad driving. Put a lot more polcie out there, weed out the idiots and everyone will be driving nicely. As it is, there is tons of risk out there other than the drunk drivers.

Ask yourself this; who would you rather have driving behind you whilst you're cycling?

Your mom at .08

or a teen in a monster truck late to see his girlfriend with heavy metal blasting out the window?


By defensive lawyer on 2013 09 04, 3:33 pm CDT

This is another example of lazy police and prosecutors lobbying legislators to enact statutes that make the police and prosecutors' jobs easier, but which chip away at citizens' freedom. Driving with a specified blood alcohol level, unlike unsafe driving (whether because of drug impairment or for some other reason), is a status crime. It doesn't matter how well or safely the driver with the blood alcohol level is driving. Suppose reliable studies showed that 90% of auto accidents were caused by drivers who didn't have a high school or equivalent degree, or who were wearing a black article of clothing. Would it be acceptable to make driving without a degree, or while wearing black, a crime? If not, why is it acceptable to criminalize drivng with a specified blood alcohol level? I anticipate resonses to the effect that there is a causal relationship between alcohol level and unsafe driving, while there isn't one between lack of degree or wearing black, and unsafe driving. If that is true in every case, it shouldn't be difficult for the authorities to prove the unsafe driving; that should be the crime. This is the problem with relying on statistical correlations instead of clear thinking to make public policy.

By AKSkeptic on 2013 09 04, 3:46 pm CDT

@2 The problem with something like that, is you can blow up to .02 with just drinking soda alone. Having a small amount of alcohol in your system while driving isn't a terrible thing. It is all about being responsible and knowing when you are in control and when you are not.

By S. Wilson on 2013 09 04, 4:31 pm CDT

Seven comments so far, and nobody caught that going from .08 to .05 is actually *increasing* the limit, not lowering it, as less alcohol would need to be in your system to trigger a DUI. As the article states the NTSB said, it would be a "tougher standard."

By mmm on 2013 09 04, 5:35 pm CDT

The real "dirty secret" is that breathalizers don't measure alcohol in the breath, much less blood alcohol level. They measure to total amount of combustibles in the breath, and then assuming 100% of the combustibles were ethanol, produce a blood alcohol level number assuming a whole bunch of "average human" parameters. Some people who don't drink, but for example produce large amounts of ketones (say, due to untreated diabetes), will trigger a breathalizer to erroneously assign a substantial blood alcohol level. Apparently this lack of specificity as to what combustible was detected is inherent in the both fuel cell sensors and tin-oxide sensors used in breathalizers.

By Tyrone on 2013 09 04, 5:52 pm CDT

@6: The problem with setting the legal standard at "unsafe driving" is that the unsafe driving might not be detected until after it produced an accident.

The research as I understand it is pretty clear that alcohol begins to degrade multitasking skills and reaction times (both critical to safe driving) before a person begins to detect its intoxicating effects (i.e., feels the buzz). Seeing as how an average-sized male would need to consume three stiff beers in about an hour to produce a BAC over .05, you can draw your own conclusions about whether a person would be impaired at .05.

Regardless of whether a person believes that BAC should determine DUI as opposed to bad driving, or what BAC = impaired driving, I don't see how anyone could object to the research that the Iowa researcher is undertaking. Who knows, perhaps the data and analysis he develops will show that, in fact, as a rule people are perfectly safe to drive at the .05 BAC level. My money is always going to be on the hard data rather than personal opinion or anectotal experience, regardless of how passionately held or felt.

By plink on 2013 09 04, 6:11 pm CDT

Why not just eliminate moving violations altogether? Instead, issue licensed drivers guns that shoot "stupid darts" at other drivers who are not following rules. Have police issue tickets to drivers of all cars with three or more "stupid darts" attached. Seriously, though, will anyone be able to drink at a social. event with rules like this?

By BMF on 2013 09 04, 7:01 pm CDT

There should be ample imperical evidence to show whether lowering the prohibited BAC from 1.0 to 0.8 resulted in fewer alcohol related crashes. I doubt very much that it did nor will lowering the limit to 0.5 have any positive effect on the number of crashes.

The range of effects that alcohol has on different individuals is just too wide for an arbitrarily set limit to insure safe driving. Ultimately it becomes the responsibility of the driver to decide if he or she is too tired, too stressed, too distracted, too drunk or too stoned to drive.

By W.R.T. on 2013 09 04, 9:56 pm CDT

I've never heard a credible claim that most people are seriously impaired at .08, let alone everyone, or seen actual research to back it up. All the original studies were based on a .12 BAC and then the NHTSA research on SFST's were based on a .1 BAC. Around .1 BAC, the conclusions drawn from the research starts to become tortured logic and some of the claims made about people driving with a .08 BAC are absurd.

If people can get a year in prison for driving with a .08 BAC, they should also be able to get a year in prison for driving when they are exhausted. Exhausted drivers exhibit the same behaviors as drunk drivers and the solution to both conditions is the same: sleep it off.

By Joseph Fay on 2013 09 05, 4:12 pm CDT


You're off by a factor of 10. If someone blew a 0.8 that'd be enough to kill anyone.

By OKBankLaw on 2013 09 05, 8:46 pm CDT

@14. OKBankLaw,

You are correct, of course. I stand here red-faced and will be forced to drown my shame in Glenlivet. Thanks for that.

By W.R.T. on 2013 09 06, 5:37 am CDT


The Glenlivet is a fine scotch so I salute your choice.

By OKBankLaw on 2013 09 06, 2:58 pm CDT

I am heartened to see that, for once, I agree w/ the majority of the comments here. I can only hope that #2 was being sarcastic. Unfortunately, the majority of the population doesn't seem to have caught on that the real impetus for lowering BAC levels is, as is most often the case, about $$$ -- the law enforcement/prison-industrial complex. Scoff all you want, but I can state categorically that I can drive more skillfully with a BAC over .10 than most drivers out there do while stone sober. As others have noted, unsafe driving is the problem, not the mere status of the driver. Checkpoints do nothing but generate revenue for law enforcement. Actually making it more difficult to get a driver's license in the first place, easier to lose one, and requiring periodic recertification would do far more to prevent accidents than lowering BAC levels. I'd bet my last dollar that this "study" is being funded by people who stand to make $$$ if the cut-off is lowered.

By Just Some Bloke on 2013 09 06, 3:37 pm CDT

@12 (W.R.T),

"Ultimately it becomes the responsibility of the driver to decide if he or she is too tired, too stressed, too distracted, too drunk or too stoned to drive." Unfortunately, too many impaired drivers are unable to recognize that they are impaired.

By Non-Practicing Attorney on 2013 09 08, 3:39 am CDT

.08 seems like a reasonable line to draw. Even MADD isn't trying to get down to .05. Sometimes a bloke wants to have a beer or two with dinner. If you're not drunk, then I see no need for prosecution. If you are driving poorly, well, that is already against the law and you can be punished regardless of the BAC.

By Island Attorney on 2013 09 08, 10:16 pm CDT

I realize it varies state to state, but I had thought most states set the .08 level as an absolute marker, i.e. that if you blew .08 you were impaired regardless of your driving ability, and that if you were actually impaired you could be pulled over for it even if your BAC was less than .08. I guess that isn't the case?

By OKBankLaw on 2013 09 09, 4:23 pm CDT

the relevant BAC is not at the time of the test, but at the time of driving...

By defensive lawyer on 2013 09 09, 9:00 pm CDT

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