Letters to the Editor
DWI Proposals Cast Too Wide a Net
Published in the May 29, 2013 issue of the New York Law Journal
The National Traffic Safety Board (NTSB),an independent federal agency which issues safety recommendations aimed at preventing accidents recently recommended that states lower the blood alcohol concentration (BAC) that results in a DWl arrest from.08 to .05.This was done in an effort to reduce the number of alcohol related accidents and fatalities that occur each year.While this is clearly a worthy objective, the measure proposed of reducing the proscribed BAC to.05 would cast too wide a net in the wrong direction and severely punish individuals who under current rules of law have not committed any crime.
DWI laws date back to the late1800's in England and the first state to adopt DWI laws was NewYork in 1910.The sine qua non of these early DWI laws was the prohibition of driving while one's ability to do so was impaired by alcohol.These types of DWI laws have become known as Common Law DWI. These offenses relied on the government's ability to establish a person's intoxication through opinion testimony and the observance of tell tale signs of intoxication such as slurred speech, unsteady balance and the odor of alcohol on one's breath, not always easy to prove since most people do not share a common understanding of what intoxication means.
A new way of defining intoxication resulted in 1953 from the advent of the Breathalyzer. The purpose of the Breathalyzer was to determine the BAC of a person through ananalysis of a sample
of that person's breath.This lead
to the creation of statutes that instead of prohibiting impaired driving,set limits of BAC at which one can lawfully operate a vehicle.These types of DWI laws became known as DWI Per Se.It is these laws that are now addressed by the
recommendations of the NTSB.
The threshold for the per se charge is a political decision, not a scientific one. At its core DWI laws have historically been designed to prevent people from operating a motor vehicle while their ability to do so was impaired. Defining DWI offenses in terms of BAC served to simplify the process of identifying and convicting offenders.Thus even the advent of per se DWI offenses was not to prevent the conduct opposed by society(impaired driving)but to make the prosecutor's job easier to do.
What related per se offenses to impaired driving was research
and studies by experts that analyzed the effects alcohol has on mental and physical capabilities to operate a vehicle.Those studies have resulted in current laws throughout the states which provide that a .05 BAC is proof that an individual is not in an intoxicated condition.One such statute is NewYork Vehicle and Traffic Law1195 which provides that "(e)vidence that there was .05 of one per centum or less by weight of alcohol in such person's blood shall be prima facie evidence that the ability of such person to operate a motor vehicle was not impaired by the consumption of alcohol, and that such person was not in an intoxicated condition."The physiology of the human body and how it reacts
to alcohol has not changed. It is the politics of the prosecution of such cases which is calling for the change.
Not only would the recommendation of the NTSB punish people for conduct not currently perceived as unlawful by the public and the Legislature,but because of the uncertainty of BAC measurements it would stretch the arms of the law to punish individuals whose BAC is as low as .02 or less,essentially making it criminal to have a singleglass of wine with dinner and then drive.
The concept of uncertainty in the measurement of BAC derives from the range of error intrinsic in the measuring device it self as well as human factors such as blood to breath ratio sand body temperature.It is well accepted in the scientific community that measurements mean nothing unless you have the context of the "uncertainty" inherent in the measurement.
Anyone who diets can understand this.If you get on the scale and don't like the result, getting on that scale and being measured one pound less does not mean you just lost a pound. It simply supports the principal that a measurement of anything is only a best estimate of the measured item's true value.The value itself can never be actually known.
New York Department of Health Rules and Regulations
59.5 which govern the procedures to be used in breath testing recognizes that this error margin in a breath test can be as
much as .01 BAC. Now consider other margins of error intrinsic in breath testing which derive from the indirect nature of the measurement of breath to calculate blood alcohol concentration and many experts would opine that a .05 test result in actuality could be as low as a .02 or lower, an amount which can be caused by a single glass of wine with dinner.
The objectives of the NTSB are sound.We as a society should use our best efforts to reduce the risk of accidents and fatalities that result from drunk driving, however the reduction of per se limits to .05 is not an appropriate way to accomplish that goal since it targets individuals who the norms of society (as expressed by current laws) do not consider criminal. The focus should not be on the politics of DWI but on implementing changes that address the more serious offender such as the repeat offender or the driver whose BAC is extraordinarily high. That is where the threat lies.
- Steven Epstein
