NTSB Endorses a .05 National BAC Standard

On May 14, 2013, the National Transportation Safety Board recommended that all 50 states adopt a blood alcohol content (BAC) cutoff of .05.  According to NTSB Chairman Deborah Hersman, “the research clearly shows that drivers with a BAC above .05 are impaired and at a significantly greater risk of being involved in a crash where someone is killed or injured.”  However, the only thing “clear” from the government’s own research is that this statement is a gross exaggeration at best, and an over-simplification of the issue.

First, it should be noted that in the 80’s, the national standard for BAC in the United States was .15.  That standard was based on scientific research by the National Highway Transportation Safety Administration (NHTSA).  Over the years, the standard has been incrementally lowered, first to .10 and most recently to .08. While states are technically free to decide the issue for themselves, the federal government has in the past threatened to withhold much needed federal highway funding from states that refuse to conform to the NHTSA standard.  But the effect of alcohol on the human body has not changed with time – a driver was just as sober at .08 in 1980 as they are today.  Yes, lowering the standard will save some lives, and at first glance, one might argue that if it saves even one life, it’s worth implementing.  But very few lives will be saved compared to the cost such a low standard would impose on the nation, in terms of both economic costs, as well as civil liberties.  For example, Congress could pass a law that all new vehicles must be equipped with front and rear side-curtain airbags.  If we did so, we would certainly save lives.  But such a mandate would drive up the cost of automobiles for consumers.  This is just one simple example.  As consumers, we routinely make this type of cost-benefit analysis in our everyday lives, and we expect public policy makers to make similarly wise decisions.

A .05 standard would have other costs as well. Take for example a case my firm has handled several times:  Client John Doe has worked as a commercial driver for 15 years.  He goes out with a friend on the weekend and has a couple of drinks.  He drives home late at night in his private passenger automobile and is stopped by police for speeding.  Once the officer approaches, the officer detects an odor of an alcoholic beverage and a DUI investigation ensues. John is arrested and charged with DUI.  A breath test reveals a BAC of .05.  Under the proposed standard, John would be charged with DUI, despite the fact that he was not driving in a reckless manner.  His driver’s license would be taken on the spot by the arresting officer.  John would have to pay hundreds of dollars to a bondsman to get out of jail. He would have to spend thousands of dollars to hire an attorney to get his license back so he can keep working as a commercial driver while he fights the DUI in court. If convicted, under Alabama law, John would lose his privilege to operate a commercial vehicle for one year, even though he wasn’t driving a commercial vehicle at the time of his arrest.  However, the State might as well take his commercial privilege for life, as John will never be able to find a job as a commercial driver again if he has a DUI conviction on his driving record, as no commercial insurance company will insure him.  John has lost his ability to provide for his family.  The money spent on his training as a commercial driver is lost. His personal auto insurance premiums rise dramatically for the next five years. Isn’t this too great a price to pay?

I do not expect DUI defense attorneys such as myself to come out in droves against the proposed lower standard.  After all, a lower BAC means more DUI arrests and more work for the DUI defense bar.  But laws, no matter how well-intended, have consequences for the John Doe’s of the world.  Washington bureaucrats should think long and hard about the unintended consequences of their actions before taking the next step down the slippery slope toward lower and lower BAC standards.

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Lawsuit Threatens Deferred Prosecution Programs Statewide

A common practice in municipal courts throughout the state is to offer what is known as a deferred prosecution to first time DUI offenders. A deferred prosecution is a program whereby an offender agrees to participate in alcohol education and counseling, along with other requirements, in order to earn a dismissal of the DUI charge. While not appropriate in every case, a deferred prosecution is an attractive alternative to defending on the merits a case where the likelihood of success is low. However, the deferred prosecution program as we know it is in jeopardy of extinction, thanks to a lawsuit filed in federal court on September 7, 2012. The lawsuit alleges that the deferred prosecution in the Albertville Municipal Court, which is very similar to programs offered throughout the state, is unconstitutional, as the program requires participants in the program to pay $500 in “restitution” in order to participate in the program. Clearly, the restitution requirement is a farce-the sole reason for insertion of such a term in deferred prosecution agreements is to ensure that municipal bureaucrats will not object to such programs on the basis of lost revenue. But lawyers, as well as clients, have not complained, gladly paying the restitution in order to secure a dismissal. That is, until now.  A number of jurisdictions are now re-evaluating their deferred prosecution programs, and at least one court has already suspended their program pending the outcome of the Albertville litigation. This is unfortunate, as studies show that first time DUI offenders that participate in such programs have a surprisingly low rate of recidivism.

A Sad State of Affairs…Alabama’s New DUI Statute Destined for Failure Once Again

On September 1, 2012, the substantive provisions of the DUI ignition interlock statute take effect.  The new law made several changes to the existing DUI statute, such as requiring an ignition interlock device for offenders who refuse to submit to blood alcohol analysis or those who submit to testing with a result of .15 or above.  But as history teaches us, each time the Alabama legislature endeavors to “get tough” on DUI, they end up achieving the exact opposite result. Case in point? The 2006 Amendments.  In 2006, the Alabama legislature attempted to close a loophole that had developed in the the law: Prior DUI convictions in municipal courts, as well as out-of-state convictions, could not be counted as prior offenses for sentencing purposes, as the legislature had not properly worded the statute. So, the legislature specifically stated that prior convictions in municipal courts or from other states would count for sentencing purposes. But in doing so, they accidentally used language from another portion of the statute, and stated that prior convictions “within a five year period” would count. This had the effect of forgiving all prior DUI convictions that fell outside the five year time frame. Hundreds, if not thousands, of offenders were immediately affected by the change. Many facing felony (4th) DUI charges with lengthy potential prison sentences were transformed overnight into first time offenders, as their prior fells outside the five year time frame. The legislature never admitted the mistake, and amending the statute to take out the “five year” language would be an admission of their incompetence, so shockingly, the language remains in the statute today.  The 2012 Amendments are similarly riddled with loopholes and drafting errors, not to mention that the State is woefully unprepared to institute a statewide interlock installation program. As a result, the appellate courts will be flooded with a series of challenges to the new statute in the years that follow that will demonstrate the legislature’s incompetence yet again.