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Reason for legal alcohol limit cut a bit wobbly

My View: Changing law to 0.05 percent won't curb drunken driving


The National Traffic Safety Bureau recently recommended that driving with a prohibited blood alcohol level be reduced from 0.08 percent blood alcohol content (BAC) to 0.05 percent.

A 0.05 percent BAC can be reached when a 120-pound woman drinks about one glass of wine in an hour, and when a 160-pound man drinks about two glasses of wine in an hour.

I believe the proposal is poor public policy since it criminalizes social drinkers who drive their cars after consuming a moderate amount of alcohol.

The NTSB is a federal agency, but it cannot enact legislation or adopt regulations; it only has the power to make recommendations to the federal government and the states. But its federal audience includes the National Highway Traffic Safety Administration, and it can control states by adopting regulations that virtually force states to sing the song selected by NHTSA.

In 2000, President Clinton signed legislation that mandated that states enact laws making driving with a 0.08 percent BAC a crime or face the loss of federal funds for highway construction. Since it costs around $60 million to construct one mile of a four-lane interstate freeway, we are not talking chump change.

We, the people, paid taxes to Washington, D.C., in the form of income taxes. The feds would not return those funds to the states to build freeways unless the states knuckled under and sang the federal tune. All states thus acquiesced and lowered the prohibited BAC to 0.08 percent.

This is a federalism issue. Why should the federal government forbid the states from experimenting in what former Supreme Court Associate Justice Louis Brandeis called their laboratories to come up with the best policy for their individual state?

This is also a common-sense issue. Why should the casual drinker be turned into a criminal? If mom and dad are lucky enough to find a baby sitter on a Saturday night and want to share a bottle of wine with dinner, they will have to forgo that pleasure if the 0.05 percent BAC proposal is adopted. The risk of being stopped while driving home ruins the prospect for a relaxing, enjoyable “night on the town.” And, the financial impact on the restaurant industry is obvious.

The list of critics of NTSB’s recommendation is impressive indeed. Both Mothers Against Drunk Driving and AAA have declined to endorse it. The Governors Highway Safety Association outright opposes it.

If the prohibited BAC is reduced to 0.05 percent, it will be difficult for the average person to calculate how much is too much. The variables are dizzying: what is your weight, sex, how much have you eaten and when, over what period of time have you consumed alcohol, etc. Even a psycho-pharmacologist would pause before getting behind the wheel after consuming alcohol.

NTSB’s report is titled Reaching Zero: Action to Eliminate Alcohol Impaired Driving. I was curious about the meaning of “Zero,” so I read the report and discovered that “Zero” referred to the goal of totally eliminating highway deaths related to drinking and driving. My initial thought was that NTSB’s goal was to lower the BAC level to “Zero.”

On second thought, I believe that is where NTSB is headed — criminalizing driving a vehicle after having any alcohol to drink. I say that because the report states that driving with a BAC of 0.01 percent has “been associated with driving related impairment.”

The NTSB should defecate or get off the proverbial commode — propose a new prohibition on driving after having any alcohol to drink or keep things just the way they are.

If 0.05 percent becomes the law, I guarantee some prosecutors will proceed to charge people who have registered a 0.03 percent or lower. They will argue that when the person was driving, the BAC was 0.05 percent or more because by the time the person blew into the breath test machine, a certain amount of the alcohol in the system had “burned off.”

If 0.05 percent becomes the law, I guarantee police officers will become even more aggressive in investigating and charging drivers with driving under the influence. To demonstrate how aggressive the police are today, let me share a story with you.

A gentleman in his 60s asked me to defend him on a charge of driving under the influence of a controlled substance, phenobarbital. He had been taking Dilantan and phenobarbital for epilepsy that had been diagnosed more than 40 years ago.

He had taken his prescribed dose and was shortly due to take his next daily dose. While returning from a trip to the coast, he woke up to find he had been in a collision with another vehicle.

The police arrived and tested him for his sobriety. He was 60 pounds overweight. The field sobriety tests are not valid for a person of his age and weight. Nevertheless, he was arrested and prosecuted for DUII.

He was examined by a psycho-neurologist who diagnosed sleep apnea as the cause of the accident as opposed to his being under the influence of his prescribed medicine. Many thousands of dollars of expense later, the DUII and assault charges were dropped.

Overzealous enforcement of our DUII laws will be the result if the BAC is reduced to 0.05 percent. And then, yet another battle between blue lights and civil rights will be waged again.

And, if you drive after drinking when 0.05 percent is the prohibited level, do not ask for whom the bell tolls; it tolls for thee.

John Henry Hingson III is an Oregon City criminal defense lawyer and author of “How To Defend a Drunk Driving Case.”