Across the country, driving with a .08 BAC or higher is per se illegal and considered driving under the influence. In Pennsylvania you can also be charged with DUI if you are intoxicated to the point that you are incapable of safe driving, so long as your BAC is at least .05 OR you refused the test. Prior to 2004 the limit in Pennsylvania and many other states was .10. Going back to the early 1980’s, the requirement was even more relaxed: many states then required a BAC of .15 to prove intoxication. Groups like the beer and restaurant industries have historically been against these regulations, but stricter BAC limits have proven to be life saving. The number of yearly alcohol-related deaths fell from 20,000 in 1980 to 9,878 in 2011, and the percentage of highway deaths attributed to alcohol has dropped from 48% in 1982 to 31% in 2011.
Now, there is a very real possibility that the BAC limit of .08 that we are all familiar with might be reduced even further. Earlier this month, the National Transportation Safety Board (NTSB) issued a recommendation that all states reduce their BAC cutoffs for DUI from .08 to .05, which they predict will save between 500 to 800 lives annually. This recommendation was one of almost 20 recommendations that the NTSB made, with other recommendations including increasing the use of ignition interlock devices to stop intoxicated people from starting their cars, and police using passive alcohol sensors that can detect the odor of alcohol about a person without blowing into a breathalyzer. Although the NTSB has no enforcement power of its own, Congress in the past has tied states’ adoption of their recommendations to federal highway funds in order to compel states to comply. This technique was successful in forcing all 50 states to adopt the .08 threshold by 2004.
Despite the rather convincing statistics, not everyone has jumped on the .05 bandwagon. Not surprisingly, the American Beverage Institute (ABI) argues against .05. The ABI says that lawmakers and regulators should focus on repeat DUI offenders and drivers who are highly intoxicated, rather than those who are merely “buzzed.” They call the recommendation “ludicrous”, saying it will “criminalize perfectly responsible behavior.” According to a BAC calculator provided by the University of Oklahoma, a 180-pound male will typically reach .08 after four drinks over an hour, and will reach .05 after two to three drinks over an hour. From our practice it is relatively clear that a small woman can easily hit .05 by drinking just one of the large margaritas or martinis served at many of our local establishments. Be careful!
Even groups like Mothers Against Drunk Driving (MADD) and AAA are hesitant to endorse the .05 recommendation. Instead, MADD advocates for devices such as ignition interlock to physically prevent an intoxicated driver from getting behind the wheel and driving. The National Highway Traffic Safety Administration (NHTSA) does not officially endorse .05 either, but stated that it “will work with any state that chooses to implement a .05 BAC law to gather further information on that approach”.
As it has been in the past, it may take years for states to adopt .05 as the BAC threshold, if ever. Comment and let us know what you think and why…should states adopt the .05 threshold?