Will Michigan really adopt .05 as the new, lower legal Blood/Breath Alcohol Limit (BAL/BAC)?

Well…  Let’s see:  The National Highway Traffic Safety Administration (“NHTSA”) recently noted that “DUI cases have become some of the most complex in the criminal justice system.”   Since NHTSA is the government agency that’s in charge of highways and also controls the money flowing from our federal tax dollars, you can bet that the .05 level of presumed (per se) impairment is coming.  The only reason that we have the current .08 standard is that about a dozen years ago NHTSA threatened to hold back highway funds from any State that refused to go to .08.  By “highway funds” we’re talking billions of dollars.  Lower the limit or lose the money to repair your bridges.

This week, the National Transportation Safety Board (“NTSB”-NHTSA’s evil twin) declared that we must end the carnage on our roads by lowering the legal threshold for drunk driving.  Citing decade’s worth of preposterous statistics and cooked traffic crash/fatality figures, the NTSB has thrown its weight behind the effort that NHTSA and mad mothers have been trying to achieve since at least 1986 when MADD was formed:  criminalize ANY alcohol use for drivers.  It’s called “Neo-Prohibition.”  And it’s here to stay. 

“Cooked traffic crash/fatality figures”?  C’mon, Wilson.  Gone a bit dramatic again, haven’t you?  Um-no.

NHTSA defines fatal collisions as "alcohol-related" if they believe the driver, a passenger, or non-motorist (such as a pedestrian or pedal cyclist) had a blood alcohol content (BAC) of 0.01% or greater. NHTSA defines nonfatal collisions as alcohol-related if the accident report indicates evidence of alcohol present.   NHTSA specifically notes that “alcohol-related” does not necessarily mean a driver or non occupant was tested for alcohol and that the term does not indicate that a collision or fatality was caused by the presence of alcohol.   {NHTSA Traffic Safety Facts, 2004} 

So if there’s an empty beer can rolling around in the trunk of a car that was in a crash that killed someone, NHTSA says that is an “alcohol-related” traffic death. 

NHTSA’s reference to the complexity of OWI cases is telling for a couple reasons.  First, the agency is correct:  OWI cases are extraordinarily complex--more complex than any other criminal charge.  A skilled defense to an OWI charge requires not just knowledge of traffic laws and criminal procedure, but also search and seizure, alcohol and drug metabolization, lung  function and gas exchange (Henry’s Law, anyone?), human physiology and the effects of diseases on blood alcohol levels (think diabetes, acid reflux, accident trauma, etc.), human factors (the differing effects of substances on individuals), phlebotomy (blood work) and problems like fermentation of blood raising the alcohol level in the sample tube before it even gets to the lab, accident reconstruction, laboratory protocols and standards including uncertainty budgets in testing procedures (that gray area in forensic testing that police labs want to ignore or pretend doesn’t exist), gas chromatography (used to determine blood alcohol levels) and mass spectrometry (for detecting drugs in blood), and a whole bunch of other things that you probably never considered…

Compare that to your average homicide—Colonel Mustard with a lead pipe in the Drawing Room.  Corpse, perp, weapon, chalk line, done.

The second reason that NHTSA’s conclusion about the complexity of OWI cases is important is that in the face of a highly skilled and aggressive OWI defense, the government’s case can very often be made to collapse, as any house of cards must.   The dedication of true professionals (we call ourselves “warriors”) in constitutional law and OWI defense are exposing the Emperor’s nudity, and it ain’t a pretty sight.   Prosecutors are getting their clocks cleaned by a skilled OWI/criminal defense bar that just won’t give up.  NHTSA’s response?   Lower the bar for convictions by lowering the legal threshold for “intoxication” or “impairment.”    

Ironically, a bunch of states now have laws that say a blood level of .05 is presumed to be NOT “impaired.”   That sound you’ll be hearing is the government paddling furiously backward as it tries to justify that although the water was blue yesterday, today it really is orange.  Really—trust us. 

Although many  of Ayn Rand’s views were absurd and offensive, she nailed it on this one.  Read and be very frightened:

“Did you really think that we want those laws to be observed?” said Dr. Ferris.  We want them broken.  You’d better get it straight that it’s not a bunch of boy scouts you’re up against – then you’ll know that this is not the age for beautiful gestures.  We’re after power and we mean it.  You fellows were pikers, but we know the real trick, and you’d better get wise to it.  There’s no way to rule innocent men.  The only power any government has is the power to crack down on criminals.  Well, when there aren’t enough criminals, one makes them.  One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens?   What’s there in that for anyone?  But just pass the kind of laws that can neither be observed nor enforced nor objectively interpreted - and you create a nation of law-breaker- and then you cash in on the guilt.  Now, that’s the system, Mr. Rearden, that’s the game, and once you understand it, you’ll be much easier to deal with.”  Atlas Shrugged (1957) {emphasis added because I especially like that sentence}

Is the .05 standard coming?  You bet.  I’d say within 3-4 years.