Anyone for .05 DUI’s?

By Traci Bridges Morning News | Posted: Sunday, June 2, 2013 6:04 pm

A bill proposed by State Senator Gerald Malloy (D-Hartsville) that would lower the legal blood alcohol concentration (BAC) for driving to a .05 is intended to lower the traffic fatality rate involving drunken drivers in South Carolina.

But will it?

Critics say the proposal, which is supported by a recent recommendation of the National Transportation Safety Board (NTSB), is mostly window dressing that doesn’t have a scientific basis.

What’s more, said Florence attorney Patrick McLaughlin, the proposed law could create a field day for local defense attorneys because of the implied contradictions with the new DUI BAC level, vs. the old.

“There is absolutely no science to support this,” McLaughlin said. “We lowered the limit from .10 to .08 in June of 2003. The NHTSB first recommended dropping the limit from .10 to .08 in 1982. It took us 21 years to make that decision. There is simply no scientific evidence supporting that the human body and our tolerance for alcohol has changed so dramatically in the decade since we lowered the limit last.”

In addition, McLaughlin said the standard field sobriety tests used by officers across the country – the Horizontal Gaze Nystagumus (HGN), the heel-to-toe walk and turn and the one-legged stand – are based on determining the probability of intoxication at the former .10 level. The tests are not even designed for the .08 level, much less the .05, he said.

“Imagine the field day defense counsel can have with that,” McLaughlin said. “We’ve changed so much our legal BAC has continually dropped, but your testing and training hasn’t? How can that be? How can you expect a jury to believe those same old tests are still good? Heck, our breath machines have been changed in the interim – why not this stuff?

“Obviously, any new law that will create more offenses or stiffer penalties is in the pecuniary interest of the criminal defense bar, but I believe the majority of criminal defense lawyers in South Carolina see this as a bad idea.”

That might be the case, but Malloy thought enough of the idea to produce and enter the bill, and it does match a recent NTSB recommendation for dropping the BAC level nationally.

It’s unlikely the bill would pass anytime soon. Malloy, a member of the Democratic majority, has not had much success getting unique legislation passed, and this bill was referred to the Senate Judiciary Committee last month, a likely death knell for passage this session.

Saving lives?

Several attempts to contact Malloy for comment about his bill were unsuccessful, but the NTSB says the idea for their recommendation for a tighter standard is part of a plan to eliminate drunk driving, which accounts for about a third of all highway deaths in the United States.

NTSB Chairwoman Deborah Hersman said great strides have been made in reducing the problem, but it’s still a big problem across the country. The NTSB believes – but did not offer any direct evidence for the idea – that the lower BAC level would save 500-800 lives a year

“In the last 30 years, more than 440,000 people have perished in this country due to alcohol-impaired driving. What will be our legacy 30 years from now?” Hersman asked. “If we don’t tackle alcohol-impaired driving now, when will we do something about it?”

The NTSB does not make or enforce policy. It is an independent agency made up of five members nominated by the President and confirmed by the Senate for five year terms. The board investigates and studies matters of public safety and makes recommendations to lawmakers. But each state ultimately sets its own BAC level.

Laura Hudson, state vice president of public policy for Mothers Against Drunk Driving in South Carolina, said lowering the BAC is not where the state chapter’s focus lies right now. She said the group’s priority is Emma’s law, which would require all repeat and first-time offenders with a BAC of .12 or higher to use an ignition lock on their vehicle for at least six months.

“We’ve been working on the ignition lock legislation for quite some time,” Hudson said. “I think the .05 bill would be difficult to get through the House and Senate this year. It might be something we’d want in the future, but right now, we’re just going to concentrate on getting the ignition lock bill through.”

In 2011, 315 people were killed in South Carolina in crashes involving a drunk driver – accounting for 38 percent of all traffic fatalities in the state. Nationally, 31 percent of all traffic fatalities are caused by drunk driving. That’s a sobering statistic, as are most of those associated with DUI-caused fatalities.

But the .05 proposal is still problematic. Not only would it create legal issues, it would make almost any drinking and driving a potential crime.

A drink an hour

If .05 were to become the new standard, a drink or two with dinner would become a risky move, especially for a petite woman.

According to an online BAC calculator published by the University of Oklahoma, a man weighing 180 pounds typically hits the .08 level after four drinks over a period of an hour. He could reach the .05 level in two to three drinks over the same period. A 135-pound woman typically would blow a .084 after three glasses of wine in an hour. She could reach a .05 after two glasses of wine or just one strong drink in an hour.

At that point, the question of level of impairment becomes relevant. Under current South Carolina law, a reading of .05 or less means “it is conclusively presumed that the person was not under the influence of alcohol.”

As a result, said attorney McLaughlin, lowering the limit to .05 goes directly against what in the past has been determined to be too low for impairment.

“So with a proposal to change it to where .05 is now the ‘new .08,’ we’ll be taking a breath level that we were claiming was presumed to not be under the influence and making it an inference that a person is under the influence,” McLaughlin said.

McLaughlin said he does not think lack of enforcement is the problem. In fact he said law enforcement officers across the state made DUI enforcement a priority years ago.

“Over the last decade, the emphasis on enforcing DUI laws has skyrocketed,” McLaughlin said. “In fact, I don’t know of anything else law enforcement can do when it comes to DUIs.”

McLaughlin said the Department of Public Safety has massive statewide initatives like “Sober or Slammer” and officers in many agencies earn rank and recognition based on the number of DUI cases they make.

“Law enforcement officers who write DUIs are recognized and rewarded,” McLaughlin said. “They make rank, get assigned to special ‘teams’ and if they qualify, they get invited to MADD’s annual banquet for recognition. Enforcement initiatives like ‘Sober or Slammer’ and ‘H.E.A.T. is On’ programs are run annually and actually award prizes to participating agencies like new vehicles or gear.”

No bandwagon

State and local law enforcement officials haven’t necessarily jumped lower limit bandwagon.

Florence Police Chief Anson Shells said his department remains extremely dedicated to DUI enforcement but said he would have to see more scientific studies as to whether .05 actually constitutes impairment before he could form an opinion on the matter.

“We’ve had .08 as the established level for quite some time so I would have to see some kind of scientific study on the effects of alcohol at the .05 level,” Shells said. “I do understand what Sen. Malloy is trying to do and it’s admirable that he’s trying to do something to make our roads safer. But I just don’t know enough about the effects or the level of impairment at that level. I’d have to see some scientific research or evidence before I’d be comfortable forming an opinion.”

South Carolina Department of Public Safety spokeswoman Sherri Iacobelli said her agency’s focus remains on education and enforcement of the law, not the making of it.

“Our job, as a law enforcement agency, is to enforce the laws that are passed by the General Assembly,” Iacobelli said. “While South Carolina’s ranking has improved nationwide in terms of DUI-related fatalities, there is still much work to be done.

“DUI enforcement ranks at the top of our enforcement priorities. That is why we are in the public and the media every day educating motorists about the deadly effects of getting behind the wheel after consuming alcohol. We need to continue to work together as a state to do all we can to strengthen safety on our roadways. We encourage people to always designate a driver when they plan to consume alcohol. That is the best practice for keeping themselves and others safe on our highways.”

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