In May of 2013, the National Transportation Safety Board (NTSB) made a lot of news and raised awareness by voting to recommend that States lower the Blood Alcohol Concentration (BAC) level for Driving Under the Influence (DUI) from .08 to .05.
On the issue of lowering the BAC, those in favor pointed to the fact that the effects of alcohol can be seen at as low as .01. Those against stressed that some people would be at .05 with a drink or two over dinner and therefore .05 would be an overly broad standard.
Without getting into whether the BAC should or should not be lowered, this article looks at the reality of the recommendation.
The NTSB Does Not Have Lawmaking Authority
The National Transportation Safety Board does not make any actual laws regarding DUI at the Federal or the State level. The National Transportation Safety Board is an independent federal agency created by Congress and is responsible for investigating aviation accidents, as well as significant railroad, highway, marine and pipeline accidents. The NTSB also conducts studies on transportation safety. The .05 BAC recommendation is only a recommendation, not a pronouncement of law.
The NTSB is sometimes confused with the National Highway Traffic Safety Administration (NHTSA). NHTSA is part of the Department of Transportation and is part of the Executive Branch of the Federal Government. The NHTSA was created in 1970 to specifically address highway safety. As mentioned above, NTSB was created by Congress and deals with many aspects of transportation.
The NTSB is more of an advisory part of the equation and NHSTA is more of a detailed research and implementation part.
Almost All DUI’s are a State Law Issue, Not a Federal Law Issue
Each individual State regulates almost all Driving Under the Influence incidents. Federal Law on DUI (which is still .08) only applies when on Federal Property (Parks, Military Installations, etc.) So, each individual State would need to adopt a new BAC level through their own legislative process as applied to that single State.
It was not until 2001 that the Georgia Law for DUI for an automobile BAC went from .10 to .08. Georgia’s reduction was largely in response to a change in Federal Law in 2000 that would have cut off a portion of highway funds to those States not at the .08 BAC level.
Prior Recommendation of No Cell Phones
NTSB has a history of making headlines and raising awareness, but not necessarily actually changing State Laws. In 2011, NTSB recommended that zero cell phone usage be allowed while driving. While admirable, it is not realistic that Americans will allow their cellphones to be taken away while driving.
A Trend to .05 Not Likely
There may be a few States that adopt the .05 BAC standard. However, it is highly unlikely that .05 will be the national standard anytime in the next 20 years. Likewise, Georgia was one of the last .10 to .08 holdouts, so it would be likely that Georgia would be one of the last to go to .05 if that trend were to start.
Enhanced Punishment for Over .15 Trend?
Buried in the headlines was the NTSB’s reminder that drivers with BAC’s of .15 or higher are a serious danger to the community. It is more likely that there would be uniformity in pushing for higher mandatory penalties for those over .15 BAC than the lowering of the BAC to .05. It is realistic to see a .15 defendant be required to be treated more harshly than a .08 defendant via more jail time, higher fines and/ or more alcohol treatment.
Conclusion: Awareness is Good, Likelihood is Low
Everyone is in favor of safer roads and less drunk drivers, so a discussion on the topic of DUI that raises awareness is always good. Just getting people to talk about DUI and potentially think twice before getting behind the wheel while impaired may save lives. However, the likelihood of .05 becoming the national standard anytime soon is very unlikely from a practical standpoint.
About the attorney: Anne Bishop is a Georgia Lawyer with A. Bishop Law in Gainesville, Georgia and handles various DUI / DWI, Marijuana Arrests and other Georgia Criminal Defense matters. The law office of A. Bishop Law can assist clients throughout Georgia including: Hall County (Gainesville, Oakwood, Flowery Branch), Jackson County (Jefferson, Braselton) White County (Helen, Cleveland), Lumpkin County (Dahlonega), Dawson County (Dawsonville), Habersham County (Demorest, Cornelia), and all of Northeast Georgia.
This article and/or video should not be considered nor relied upon as legal advice since it is only intended for general overview and informational purposes. Please consult with an attorney on your specific situation in order to determine an appropriate legal course of action.