Ten with Ben – Episode 5: Should states go to a .05 BAC limit for DUI and DWI cases?

I handle a lot of personal injury cases and wrongful death cases. I want to tell you a story, the names have been changed but let's call my client Dee.

Hi, I’m Attorney Ben Schwartz,

This is a Ten with Ben episode that we are going to do today. I want to talk to you about the National Transportation Safety Bureaus recommendation that all states go to a .05 blood alcohol limit for drunk driving cases. This is somewhat controversial. It has been about 5 years since the NTSB has recommended that states go to a .05 limit for DUI and DWI cases and very few States, if any, have passed the law to make it tougher on drunk drivers.

I want to tell you a story. I’m not a drunk driving lawyer, I’m not a DUI lawyer, I handle a lot of personal injury cases and wrongful death cases. I want to tell you a story. The names have been changed, but let’s call my client Dee. Dee was in a car accident. She is driving along, it is 8:30 at night and it is dark out. She is driving along, she comes upon an intersection where she has the green light. She proceeds into the intersection and as she pulls into the intersection another car comes from out of nowhere and smashes into her. The guy that had been driving that car stopped on his way home at a local restaurant, had a small meal for dinner and had 3 beers.

When the police arrived on scene they smelled alcohol on his breath. They noticed that he had a little bit of glassy eyes and they asked him, have you had anything to drink? He told them yes, so they did some field sobriety tests. They did an intoxilyzer test back at the station but he was not over the legal limit. He had a blood alcohol reading of .06. He was charged with some minor violations, inattentive driving, careless driving that sort of thing and paid a very small fine.

Now, was he impaired? I would say absolutely he was impaired. He had been drinking. He had been in a restaurant and had several drinks. Was that impairment something that caused him to be in the accident? I would say yeah, that impairment resulted in him not paying full attention to where he was going and resulted in Dee getting very severely injured in this accident.

My question for you is, do you think it is fair that Dee has to go through physical therapy, has to go to doctor’s appointments, misses work, ends up having surgery on her neck because of the severity of the whiplash and is now permanently injured or permanently disabled for the rest of her life? Do you think that it is fair to her that this guy should have the right to go to a restaurant and have a few drinks? As long as he’s not over .08, he is not going to get charged with the crime of DUI or DWI. Is that good, because that is the way it is right now.

The National Transportation Safety Bureau has recommended that the states go to a lower limit; to a blood alcohol content of .05. If we had a .05 then that guy in this case would have been over the limit and he would have been arrested and charged with DWI or DUI. The states can not pass laws to make the limit .05 and the question is, why not? It is very clear that it would be a good thing to do. If you want to read about why the states should have a .05 BAC, my recommendation is go on Google and Google the effectiveness of a .05 blood alcohol concentration for driving in the United States. You are going to come up with an article written by James Fell and Robert Voas. Essentially, the article is going to tell you that the National Transportation Safety Board recommended that States establish the BAC of .05 for all drivers.

The evidence for this is that all drivers are impaired to some degree when they have a .05 BAC, this is scientifically proven. The risk for being in a crash increases significantly at .05 blood alcohol content and above. The relative risk of being killed in a single-vehicle crash with a BAC of .05 to .079 is 7 to 21 times higher than for drivers with 0.00 blood alcohol content. Statistically it significantly increases the risk of a crash if you have a BAC at or above .05, but below .08, which is the current legal requirement. The NTSB has recommended that we go from .08 to 0.05 BAC in every state. That means every state has to pass a law changing the legal limit from .08 to .05.

This is opposed by a group called The American Beverage Institute. The American Beverage Institute is essentially a front group for the restaurant industry. The restaurant industry does not want to have stricter DUI laws. Why not? Because when people go out to dinner, or when people go out to bars, they might buy fewer drinks and if they buy fewer drinks then chain restaurants lose money, they are not going to make as much money. So The American Beverage Institute is a front group or a lobbying group that claims to represent tens of thousands of restaurants. You can go to their website, it is abionline.org. If you go to the about us page, you can read all about what they stand for and who they are.

One of the the things that I found on the about us page for The American Beverage Institute is a section called legislative program. It says ABI actively participates in legislative battles at the state and federal levels through its extensive and unprecedented grassroots network. ABI can activate thousands of restaurant owners, operators, managers, and even servers to promote our mission defense of the responsible consumption of adult beverages. So what they are saying on their own website is that they are a lobbying group. If a bill should come up in the legislature of one of the states in the United States, they can get their members who are bar owners, restaurant owners and restaurant chain owners to go tell the legislators, hey we do not support this bill, do not lower the legal limit for DUI in your state.

They can effectively quash any change in the law and I suspect, without knowing, I suspect that is why we do not have .05 BAC’s. The question is, what do you think? Do you think that you should be able to go out to a restaurant and have 3 beers and then go drive? Do you think that driving impaired after 3 beers is something that you should not be able to do? Having 3 beers for me would probably put me around a .05 or .06 BAC, at that point I don’t think I would choose to drive, but I know plenty of people that do. Do you think that people should be out there driving impaired, but not impaired enough to actually get a DUI case?

What can you do about it? If you feel strongly, you can send me an email. Wherever you are watching this video, I also want you to know that if you are in the United States, at the state level, you can contact your legislators. If you go on Google and you type in the city and state where you live and who are my state representatives, your state legislature probably has a website that helps you identify who your senators and representatives are and you can contact them. You can email them, you can call them and tell them how you feel about this. If the general public contacts their state legislators and gets involved at a local level, maybe that will help lower the legal limit on drunk driving. I’m Attorney Ben Schwartz, this has been another Ten with Ben episode. I hope you found it informative and interesting. I hope I gave you something new to think about and something to chew on. If you have any questions for me, send me an email. Thanks for watching!

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