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Photo of Matt M. McClenahen

Proponents of .05 Legal Limit for DUI are Right for Wrong Reason

On Behalf of | May 16, 2013 | DUI

For a long time, the legal limit for DUI in most states was a BAC of .10. By 2004, every state had lowered its DUI threshold to .08. Now, the National Transportation Safety Board is recommending that all states lower their BAC thresholds to .05. Not surprisingly, bar and restaurant owners associations are in an uproar, while Mother’s Against Drunk Driving is praising the recommendation.

Would such a proposal save lives and prevent injuries? The answer is very likely yes, but not for the reason suggested by advocates of a .05 BAC, who assert the “impairment begins with the first drink” mantra. In reality, most DUI accidents are caused by people who are significantly above the legal limit. There is a direct, linear correlation between how high a driver’s BAC is and the likelihood of an accident. Few seasoned drinkers are truly impaired with a .05 BAC and, accordingly, very few people have accidents triggered by alcohol impairment with such a low BAC. Conversely, a driver approaching a .30 BAC a highway kamikaze, poised to take out both himself and others.

So why might a .05 BAC threshold save life and limb? In my many years as a criminal defense attorney, I have seen a common phenomenon leading to DUIs. A lot of people go out intending to have just one or two drinks. That is why they drive in the first place. But then the one or two drinks turn into three or four drinks. The three or four turns into five or six, and so on. It tends to happen when people are having a good time with friends. Now that they’ve downed six or seven drinks, possibly on an empty stomach after work, it’s time to get home. Not wanting to leave their car at the bar overnight and needing their car the next day, they decide to take the calculated risk of driving just a few miles to get home, only to end up with a DUI, on a night when serious drinking had never even been planned.

If the legal limit is only .05, the people in the above scenario may be afraid to even have one or two drinks in the first place, and believe me, I would not even risk a single beer with a meal if the legal limit were a mere .05, and I am not exactly skinny. Thus, one or two drinks cannot escalate into five or six. This is why the bar and restaurant owners are so upset. There is a much greater mark-up on alcoholic drinks than on food. If people are afraid to have even one beer or glass of wine with their meals, the hospitality and beverage industries will be devastated.

It will be interesting to see how the BAC debate plays out. As sick as it sounds, it comes down to an economic cost-benefit analysis between potential deaths and injuries prevented versus the billions of dollars, which the hospitality and beverage industries will invariably lose with a .05 legal limit.

Matt McClenahen is a criminal defense attorney in State College, PA, with extensive experience in DUI defense.


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