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States Looking to Lower the DUI Threshold to 0.05

Posted by Lynn Gorelick | Aug 11, 2021 | 0 Comments

In December 2018, Utah became the first state to lower the per se drunk driving limit to 0.05% from 0.08%. Like all other states, the per se threshold for blood alcohol content (BAC) in California is 0.08%. The National Transportation Safety Board (NTSB) has recommended lowering the per se BAC limit of 0.05 or lower for all states. Now, Hawaii, New York, and other states are considering adopting similar policies. Will California lower the drunk driving rate to a 0.05% limit? 

NTSB Recommendations

According to the NTSB, lowering the limit to 0.05% can save lives. An estimated 1,700 plus people would be saved every year if all states passed the lower limits. One factor may be that lower BAC limits would deter people from drinking and driving at all BAC levels. Drivers with a BAC of 0.05% to 0.07% have a fatal crash risk that is 7 times higher than for drivers with no alcohol in their system. 

Historically, states could adopt whatever per se DUI limits they saw fit. Many states had the limit set to 0.10% but between 1982 and 2014, all states lowered the BAC to 0.08% According to research, this resulted in a more than 10% reduction in alcohol-related fatalities. 

How Many Drinks to Get Over 0.05% BAC?

The old rule of thumb was that it takes one hour to process the alcohol in one drink but that rule can be very inaccurate. Factors that affect how long it can take to process alcohol include the size of the drink, amount of alcohol, weight of the drinker, and other factors. 

For most people, it would take between 2 and 4 alcoholic drinks to reach a BAC of 0.05%. At the 0.05% BAC limit, drivers may demonstrate: 

  • Reduced coordination
  • Reduced ability to accurately track moving objects
  • Delayed or difficulty in steering appropriately
  • Reduced response to emergency driving situations

Hawaii and Other States Legislation to Lower the Limit

In January 2021, Hawaii Senate Bill SB754 was introduced that would lower the threshold BAC for operating a vehicle under the influence of an intoxicant. Another bill was introduced that would increase the penalties for extreme DUI, when driving with a BAC at 0.15% or above. 

In New York, a state senator sponsored a similar bill to lower the BAC limit to 0.05%. These measures are also supported by the National Safety Council, Mothers Against Drunk Driving (MADD), and the World Health Organization (WHO). 

Problems With Lowering the BAC 

One of the problems for drivers is that lowering the BAC to 0.05% could still result in a DUI for a driver who was not impaired. Blood testing and chemical breath tests are not always accurate. This means that if a breath testing machine is not properly calibrated, the sample is contaminated, or the machine has not been properly maintained, a driver could have an inaccurate 0.05% BAC result and end up with a DUI. 

You Can Still Get a DUI With a BAC Under the Limit

Even without a change in the drunk driving laws, you can still get a DUI with a BAC below 0.08%. Under California DUI laws, is it unlawful for a person to drive a vehicle under the influence of alcohol, drugs, or a combination of drugs and alcohol. With a BAC below 0.08%, the prosecutor may still rely on evidence from the traffic stop, officer testimony, police report, or other evidence to show the driver was impaired.

East Bay attorney Lynn Gorelick has more than 37 years of DUI experience and understands the challenges involved. Contact a local criminal defense lawyer who understands DUI defense strategies and plea bargain negotiations.

About the Author

Lynn Gorelick

Lynn Gorelick has been an attorney for over 38 years. She is the Attorney Lynn Gorelick is the Immediate Past President of the California DUI Lawyers Association and a Faculty and Sustaining member of the National College of DUI Defense. Lynn is a Specialist Member of the California DUI Lawyers Association and lectures frequently to other attorneys regarding DUI and DMV issues.


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