Lowering Blood Alcohol Levels to .05%?

There is a movement now to lower the level by which you can be convicted of drunk driving from .08% to .05%.

As a criminal defense attorney who handles a lot of DUI cases, I certainly have opinions on this.

The problem is that my opinion has a lot of “ifs.”gavel

First, let me explain the law. In Pennsylvania (where I practice), you can be driving perfectly fine, no problems whatsoever, but if you have more than .08% in your system, you can be found guilty of drunk driving. It’s a “per se” law which means that simply by having that much in your system you are guilty even if it did not affect your driving. I assume every other state is the same.

Obviously, alcohol affects everyone differently. One person can be drunk from two beers while another needs six, based on the size of the person and other factors.

So that law kind of bugs me, because you’re guilty even if the point of the law (to prevent drunk drivers) is not technically served.

On the other hand, people should not be driving after they’ve had a drink. Come on, why try to guess if you’ve had enough? Just don’t drink if you know you’ll be driving. (I’ve never been much of a drinker, but I’ve seen so many lives ruined from drunk driving that I don’t even have a sip if I know I am driving.)

So when I see studies showing that lowering the amount to .05% (which is the limit in a hundred other countries) results in less accidents, it’s hard to argue that we shouldn’t lower it.

The problem is this: In America, thanks to MADD and groups like that, the penalties for drunk driving are ridiculously harsh. Most states have a mandatory jail sentence for a first offense. (There’s not even a mandatory jail sentence for aggravated assault.) For a third offense in Pennsylvania, you could do a mandatory year in jail, even if your driving was perfectly fine, just because your BAC level was too high. A year! When I say people’s lives have been ruined because of drunk driving, I’m not just talking about the victims of accidents; most of the time, there is no accident.

I’d be willing to bet that in those countries that have reduced the rate to .05%, the penalties are nowhere near what we have. Penalties such as points on your license, a loss of license, and the requirement that you take alcohol classes (which we have now) may be sufficient to punish people without throwing them in jail, too.

So I may surprise people when I say that I am not necessarily against lowering the rate (and no, I’m not saying this so I can get more clients), but I would only support it if we got rid of mandatory prison sentences. (This is, in some way, a separate issue worthy of another blog post — one of the reasons the US has more prisoners than any other country is because instead of treating addicts, we imprison them.)

9 thoughts on “Lowering Blood Alcohol Levels to .05%?

  1. .05 sounds dangerously low to me. It gets fought really hard every year in Wisconsin though. We don’t allow sobriety checkpoints, the rules changed to .08 only a couple of years ago with lots of arguing between the Tavern League and various other interest groups.

    The last big fight here is over how to handle first offense. In WI, it’s actually just a municipal citation, not a full misdemeanor (google yovani Gallardo for a high profile case). The insurance companies don’t treat it that way and still stick it to offenders, but the legal system gives people a reasonable first strike.

    I’m not a fan of absolute logic. I believe if a state does sobriety checkpoints, the limits should be higher, and if a state doesn’t allow those, forcing officers to detect wobbly driving on the road, it’s probably ok for the limit to be a bit lower.


  2. We have allowed fashion, politics, and prejudice to determine both what we define as “crimes” and how those “crimes” are punished, rather than focusing the harm inflicted and on how best to make restitution to the victim and prevent recidivism.

    Sadly, I don’t see that improving in my lifetime. If anything, the politics of the day seem to be increasingly motivated by hatred, ignorance, and irrational fear (the recent trend toward marriage equality being a single bright, shining exception).


  3. I posted this on facebook, but I will post it again (and clarify) here: The only problem I see is that you are assuming that one person’s .08 is not another person’s .08, which is not true (eg – you could be driving perfectly fine at .08 BAC – very unlikely). The number of drinks it can take you to get there (amongst many other things) can alter how high your BAC goes based on how many drinks you have – a 200lb man would not get to .08 drinking 3 beers in a half hour, but a 100 lb woman might get there with one. And there’s more than just weight or gender that determine how well you remove alcohol from your system and therefore how high you BAC goes, but the fact is that .08 is pretty darned intoxicated – like having trouble with basic reasoning intoxicated. At .05, is still pretty buzzed (imo). And the fact is that any time you consume alcohol, you increase your risk of having an accident, period. Even one drink – so why do it at all?

    What I was also trying to add, but I seem to be having some kind of facebook brain cloud today, is that I think it’s a shame that they have such strict laws for DUI with alcohol, but not with sleep deprivation. We have a whole country of people driving around who are more inhibited than someone with a .1 BAC, and people don’t think twice about that, and you certainly wouldn’t get a year in jail for it.



    Very interesting post Michael. I have to say, you make a fair point that the lower level would cause less people to drive at all after drinking. Also, I would suspect many on the Law Enforcement side would have to behave more off duty. Like, maybe 6 years ago in the City of Easton. An off duty rookie EPD officer crashed into the college hill Wawa around 3AM. EPD dragged their feet for over 90 minutes before a Breathalyzer. Don’t you know, he blew .07 then. Not that all LEOs are bad people, but, some are guilty of never practicing what they enforce. Just look at their seat belts when on duty. Many fail to follow that law because of far fetch paranoid fears of being “ambushed”. Trust me, even without a belt on, odds are likely the seat back will prevent a draw of any sidearm from the duty holster. But I digress.

    As for the increased incarceration laws. That is a direct result of two problems, political candidates who use legislation as election material, and the growing financial influence of the criminal justice industrial complex on our law makers (and heads of law enforcement agencies).

    I get more law enforcement periodicals than I can shake a stick at. Some I actually pay for, others I get for being on the list of those in the industry. They all have one thing in common, all of them, are filled with ads, and “reviews” of the newest toys for agencies to use. All of which cost a small fortune and are paid for by tax payers. That in turn, funds the machine to lobby for tougher laws, so they can sell more toys.

    Add to this, what the Reagan Revolution brought us, mindless rhetoric. The “nothing works” model of corrections, where suddenly the best solution is to just house every offender like products for Amazon.com, warehousing. Our prisons are still growing in population at a rather alarming rate, whilst the overall level of “street crime” is at an all time low. That is not because of warehousing, its that offenses that were not serious enough for jail time have been turned into blockbuster sentences. All so your local D.A. can claim he or she is “tough on crime”, even though most of them ignore (or can’t handle) white collar and corporate crime, (which hurt more Americans every day than all street crime combined. Just look at our last economic collapse, all brought to us by white collar criminals).

    So I would tend to agree with you on the mandatory jail time. And keep in mind, I work in law enforcement. We have bigger and worst crimes to focus on. The level of white collar and corporate crime is, unlike street crime, growing at an alarming rate. That is what happens when the thieves see LEOs more focused on smaller offenses than major rip offs.

    I am not saying, small fines and let them on their way. Some drunk drivers are a major public safety risk, and need to be stopped from ever turning a wheel on the street. But, not every DUI is the crime of the century either. Plus, the “nothing works” correctional model seems to overlook the most important part of “corrections”, rehabilitation so they no longer will commit these offenses again, hence the name.


  5. Two things:

    1. the chance of it happening is pretty low. It was VERY difficult to get it lowered from .10 to 0.08, i dont think it will happen, but there has been a lot of studies that talk about the “pleasure zone” stopping around 0.06 (which is when the negative effects tend to outway the positive), so 0.05 is actually probably a good number (0.06 might be better). obviously any public safety law is going to be generalizations, and its impossible to cover every situation.

    2. there is this idea that we all have the right to drive. We dont. We shouldnt. Its actually a privilege. And if it means you only get one beer, then you only get one beer.


  6. I’m with you, Mike…if I’m driving, then I’m not drinking. Unless I’m at an all-day thing, like a BBQ. Then I might have a beer with my lunch, because I know I’m not headed home until after midnight. That gives me enough time to get the alcohol out of my system. Pete usually drives, though…and because of his heart, he has to limit his intake. That means if I do feel like drinking when we’re out, I usually can.


  7. The challenge with arguing the effects of .08 on different drivers is that if it’s discounted, you then have to move from an objective gauge (.08) to a subjective one (the arresting officer’s opinion/witness.) This opens up more problems.

    As to lowering the BAC from .08 to .05, I can definitely understand your point, Mike, about fixed penalties for DUI, regardless of circumstances. And I’ve heard a lot about the life-crippling effects having a DUI can have on a person. (I’ve been drunk once in my life – back in 1983 – and by accident. And we were home the whole night.)

    Could a possible solution be to have less strict penalties for DUI drivers who have caused no damage? (A simple pullover and check.) Then, in cases where DUI has caused damage, the DUI acts as an aggravating factor that is a multiplier of the related charges? Perhaps a “with intent” or “premeditated” attached as appropriate, since the defendant knowingly (and foolishly, with self-inflicted impaired judgment) chose an action that resulted in damage and/or harm.

    As pointed out in an earlier reply, a DUI conviction is going to come with a heavy fine in the form of insurance premiums, which it should. But to have your life ruined because you were rightfully pulled over and tested, but had done no harm? That’s pretty harsh.

    It would be interesting to know what other countries with .05 limits mete out as punishment.


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