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On May 14, 2013 The National Transportation Safety Board (NTSB) recommended that states should lower per se (legal limits of blood alcohol concentration for drivers) from 0.08 to 0.05. NTSB does not have the authority to legislate; it does have the power to suggest legislation and to, thus shine a spotlight on elected officials who do possess that authority. I am not surprised by this latest recommendation. But I am surprised that it took so long to materialize.

For decades the majority of toxicologists have opined that blood alcohol concentrations (BAC) of below 0.05 are subclinical (no affect on mental or physical faculties). From 0.05 and upward they have projected a graduated increase in impairment of those same faculties recognizing that a vast array of variables skew those projections among individuals and even in the same individual depending on another vast array of circumstances. Tolerance, fatigue, stress, presence of other substances, baseline mental and physical conditions,etc all play a roll.

Per se laws were designed to and continue to exclude all of those other factors. While purporting to be scientifically based, they are the antithesis of such. Take Maine for instance. Like all other states the original per se limit of 0.10 and its predecessor, 0.08, were based on BAC levels. Those were based on toxicological studies correlating ethanol levels in the central nervous system (presented by blood) to impairment among the “average” person. Each level was deemed to be a safe limit —scientifically. What caused the drop? Science? Evolution? Politics?

Several years ago Maine joined many other states by changing the standard from blood alcohol concentration to breath alcohol concentration. This was a rank bastardization of the already skewed scientific basis for the original per se laws. There are often wide variances between breath and blood alcohol concentrations. There is absolutely no scientific foundation for, on a per se basis, correlating breath alcohol concentration to impairment of any sort. Why the change? Science? Evolution? Politics?

The answer is that legislatures, at the “recommendation” (there’s that word again) of law enforcement passed the breath alcohol change to make it easier to get convictions. Simply put: Politics. They did not want jurors to be bothered by lawyers like me explaining why some folks were innocent of “scientifically” based per se allegations when the government attempted to extrapolate from breath alcohol concentration to blood alcohol concentration. The legitimate goal of punishing impaired, dangerous drivers gave way to convenience for law enforcement and political expediency. Justice was reduced to an afterthought.

Fact: Folks with blood alcohol concentrations of 0.06 are being convicted of OUI now because their breath alcohol concentration may purport to be 0.08 with all other things being equal (no interfering chemicals, mouth alcohol contamination, etc). This trend will continue with an 0.05 limit. As a practical matter, millions have been spent by the National Highway Traffic Safety Administration (NHTSA) and all 50 states developing guidelines and training officers in field sobriety tests designed to identify impaired drivers based on 0.10 and 0.08 limits. If the NTSB recommendation is enacted into law, imagine the task those officers will face.

Most folks with borderline chemical tests currently show no or almost no “clues” on those extremely difficult tasks (far more difficult than safely operating a motor vehicle). That’s most likely because their ability to drive is not impaired. At an 0.05 limit, officers will likely be required to arrest anyone who shows evidence of consumption — odor of alcohol, admission of a glass of wine with dinner regardless of any observable signs of impairment. If the driver blows below 0.05 he will still have his car towed, be handcuffed, be stuffed in the back of a cruiser, passengers will have to call cabs, law abiding citizens will have to call babysitters to explain arrest, etc.

I’m not suggesting that ad campaigns and per se laws have not been altogether ineffective. Public awareness of the dangers of drunk driving, tougher sanctions and even reasonable per se laws have shown positive results. Drunk driving is no longer casually accepted. Since 1982, the commencement of the 0.10 per se laws, alcohol-related highway deaths have been cut in half. Currently about 70% of alcohol-related highway fatalities involve blood alcohol concentrations of 0.15 or higher. Drunk driving is a public safety hazard. Dropping the per se limit on breath or blood alcohol concentrations from 0.08 to 0.05 does nothing to reduce that hazard. Diverting finite resources away from detecting and prosecuting the drunk driver to detecting and prosecuting the 0.05 driver runs contra to the legitimate law enforcement goal of serving and protecting the public.

If you have been charged with OUI or any other criminal offense, call me for a free consultation at NICHOLS & CHURCHILL tel:207-879-4000. We are in the Time & Temperature Building 477 Congress Street, Portland. Check us out at www.nicholschurchill.com

Disclaimer: This article is intended to provide general, not specific, information about Maine law. The publication of this article does not constitute an attorney-client relationship between the author(s) and the reader(s).

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