NTSB Recommends All States Adopt .05 BAC Limit
Driving While Under the Influence” (DUI) to become “Driving After Consuming Alcohol” (DACA)?
On May 14, the National Transportation Safety Board recommended that states lower the per se BAC limit for DUI to .05 from its current level at .08. his change would have a substantial impact on our State and would likely criminalize the responsible driving behavior of many currently law abiding citizens. In order to understand the proposed change, you need to know how the current law works.
Under current Washington DUI laws, there are two ways for a prosecutor to convict an adult for Driving While Under the Influence (DUI). The first way is for the prosecutor to prove to a jury of six people that the citizen was driving and within two hours after had a BAC of .08 or higher. This is called the “per se prong” because the prosecutor does not have to prove that the citizen was impaired but instead only that the BAC was .08 or higher.
The second way is for the prosecutor to prove that the citizen was driving while under the influence or affected by intoxicating liquor as shown by all of the evidence. This is called the “affected by prong” because the prosecutor has to actually prove that the citizen was impaired. The affected by prong is used when the person’s BAC is under .08, the person refused the breath or blood test, or a good defense attorney suppressed the breath test.
Washington has a zero tolerance limit for citizens under 21 when it comes to DUI. A minor can be convicted for “Minor Driving After Consuming Alcohol” for driving with a BAC of .02 or higher. It is clear that the NTSB would like Washington to move ever closer to zero tolerance for adult drivers. With the proposed new limit, you could be convicted for the very serious crime of DUI when you are not under the influence or affected by intoxicating liquor. You may not be impaired in anyway and totally safe on the road but, because your BAC was .05 or higher, find yourself convicted of DUI. Or, you may be under .05, but find yourself wrongfully arrested.
Increased Wrongful Arrests
Here’s how it might work: Let’s say you are on the golf course with a few of your friends. Let’s say you have always been responsible when it comes to alcohol and know that you can have a few beers over the course of the game and be perfectly fine to drive. You watch your drinks carefully and prepare to leave feeling absolutely no effects of alcohol.
Now let’s say that you have gotten a few speeding tickets in the past because you tend to drive 5 to 10 MPH over the speed limit and today you have some bad luck. A Washington State Patrol trooper pulls you over, not for driving over the road, but because you were going 7 MPH over the speed limit. As soon as you roll down the window, the Trooper smells a slight odor of intoxicants and asks “have you had anything to drink today?” Now, you haven’t been properly advised that your answer to that question should be “I am exercising my right to remain silent” so you make the mistake of saying “yes.”
In order for an officer to arrest a person for a crime, a police officer has to have probable cause to believe that the person is guilty of a crime. Under the current law for adults, there has to be evidence of something more than just an odor of alcohol and an admission of drinking. For example, the officer may offer field sobriety tests which the person fails. However, for minors, this is all the officer needs to arrest for DUI because of zero tolerance.
Under the proposed .05 BAC limit, some judges will likely reduce the standard for probable cause to something much closer to the current zero tolerance minor limit. That means merely having a slight odor of alcohol on your breath and admitting to having something to drink may be enough for you to be arrested and go to jail right then. Even if you are not subsequently charged with DUI, you will still suffer the humiliation of being handcuffed, maybe in front of friends and family, and being transported to jail. You will also have your vehicle impounded and have to pay around $500 to retrieve it.
Increased Convictions for Responsible Driving
Hopefully you remember to ask to speak to an attorney before you take the breath test which is your right. Regardless, let’s say you take the breath test and the two samples are .052 and .053. Now the officer may well book you into jail because you blew over the legal limit. Remember, you may not have felt any effects of the alcohol but the new .05 limit just got you a night in the Snohomish County jail.
The prosecutor would then be freed from having to prove you were affected by alcohol, which you weren’t, because of the new .05 limit. The prosecutor would just have to prove beyond a reasonable doubt that the test was accurate. Now, a good defense attorney will try to challenge the accuracy of the test, but our jobs are made that much more difficult when the prosecutor does not have to prove impairment.
If this new law is adopted in Washington, we will do everything in our power to defend people wrongfully accused for driving “under the influence” when the name has lost its meaning. In fact, under the new standard, they should change the name of the crime to: “driving after consuming alcohol.”
Washington Lawmakers reach new deal on DUI Laws Video
The Law Office of Brian M. Sullivan has offices in Everett, Lynnwood, and Kirkland, Washington with practice areas focussing on DUI Defense, Criminal Defense and Personal Injury Law. Each case is unique, so contact us today for a free consultation. You can connect with Brian M. Sullivan on Google +.
