CNN reports that the National Transportation Safety Board wants the states to lower the legal blood-alcohol limit for a DUI from 0.08 to 0.05. A decade ago, it was lowered from 0.10 to 0.08, a de facto mandate from the US Congress tied to transportation funding.

Based on the NTSB’s track record of having recommendations adopted by Congress, we should expect this to be a mandated change in the next transportation budget.

This proposal raises a number of issues for attorneys. In particular, the Standardized Field Sobriety Tests (SFSTs) used by almost all law enforcement agencies in the country are going to need to be revised or discontinued. SFSTs ostenstensibly allow a trained administrator (the officer) to determine whether someone is under the influence of alcohol at or in excess of 0.08% BAC. Based on current caselaw and jurisprudence, SFSTs may not be reliable for DUIs occurring at the 0.05% to 0.079% levels. While there is little doubt that the courts will stretch as best they can to accomodate whatever changes law enforcement agencies decide to put in place to address this shortcoming of the SFSTs, the science is firmly on the side of the defense in this.

The NTSB wants other changes as well, including immediate, automatic seizure of driver licenses from anyone stopped and suspected of committing a DUI and expensive (to the tune of $1500) ignition interlock systems for first-time DUI offenders.

About Those First-Time Offenders

In my years as an Assistant Public Defender, the bulk of my caseload was university students charged with DUI as first-time offenders. In Pennsylvania, each county’s District Attorney has the option of allowing certain offenses, including first-offense DUIs, to go through an Accelerated Rehabilitative Disposition (ARD) program. This results in the dismissal of the charges and the removal of the arrest from the client’s record. To get to that point, participants are required to complete an alcohol safety and driving class, alcohol counseling, suffer a brief suspension of driving privileges, and occasionally some other classes as assigned. For the most part, these individuals never reoffended.

The NTSB’s proposals would unduly punish these people who made youthful mistakes and for whom the present system is not broken.

Zero Tolerance Doesn’t Work

No one disputes that drunk driving is a scourge on society, but we have to be careful when we start streamlining our justice system. “Innocent until proven guilty” must not become just another throwaway line. If the evidence exists to convict someone of a crime, and the government has followed the rules in procuring, preserving, and presenting that evidence, then offenders should be convicted and face the consequences. But we must be wary of plans that assume guilt and treat anyone suspected of a crime as automatically guilty. If we follow to NTSB and groups like Mothers Against Drunk Driving (MADD) in these questions, we will end up somewhere very dark indeed.

More on what’s wrong with MADD later…

Serious Defense for Serious Charges

If you have been charged with a DUI, you need an attorney who understands these issues inside and out and can pick apart a case on the science and on the merits. Attorney Justin P. Miller has handled hundreds of DUI cases. Call him today for a free consultation. 814.359.7529.