Proposed DWI Reform: Eliminate Strict .08 BAC

November 03, 2010 (Press-News.org) In 2008, there were approximately 90,066 drunk driving arrests in Texas. Like many states, this only accounts for individuals with an illegal .08 or higher blood-alcohol concentration (BAC) level. However, some lawmakers and police officers indicate that this hard and fast rule doesn't always indicate the driver's correct intoxication level and that regulations should focus more on impairment rather than the uniform .08 blood concentration.

A woman weighing 140 pounds may reach a blood-alcohol content of .07 with two drinks in one hour; a man weighing 200 pounds may reach .04 with the same consumption. Some say that alcohol affects us all differently and the level of impairment is not indicative of a blood-alcohol concentration. An experienced drinker may exhibit less signs of intoxication than an inexperienced drinker even if both have the same blood-alcohol content.

(DWAI) Driving While Ability Impaired Proposal

Art Acevedo, chief of the Austin Police Department, backs the proposal. He supports creating a new criminal offense called driving while ability impaired (DWAI). Acevedo claims that drivers below a .08 BAC level can still be impaired, but under current Texas law, additional evidence is needed to support a DWI (driving while intoxicated) if an individual's BAC is below the .08 limit. He wants the ability to arrest drivers with BAC levels starting at .05.

Acevedo has garnered some support in the legislature. John Whitmore (D-Houston), chairman of the Senate's Criminal Justice Committee, supports the measure and has acknowledged that some people should not be driving after just one drink, even if they are likely below the .08 BAC limit.

He says the new offense would also enable the state to track multiple offenses. The Austin police agree. In 2009, of the 7,165 DWI cases filed in Travis County, 2,216 were dismissed as DWIs; the majority pled to non-DWI charges such as reckless driving or disorderly conduct. Acevedo says that when drivers plead to charges unrelated to drunk driving, they aren't treated as repeat offenders when they are arrested and convicted for a DWI.

The new offense of DWAI would include drivers with a BAC between .05 and .07. Conviction for a first-time DWI offense can mean up to 180 days in jail; no penalty has been proposed yet for DWAI.

Other Alternatives

Critics of Acevedo's proposal say that while cracking down on drunk driving is a good thing, this measure is too drastic. While the system may be broken, the answer lies not with enacting new laws to criminalize new behavior in the same broken system, but rather in education and treatment for repeat drunk drivers.

In fact, some argue that there is no scientific evidence that determines impairment based on BAC, no matter what the level.

Opponents also claim that roadblocks designed to catch lower-level BAC offenders divert police attention away from patrol efforts to find seriously impaired drivers. In 1995, the National Highway Traffic Safety Administration (NHTSA) conducted an analysis of traffic data in 30 safety categories from the first five states that adopted the lower BAC limit of .08. The study indicated that in 21 of the 30 categories, those five states were either no different or less safe than the rest of the country.

Opponents also say that roadblocks--while good revenue generators--are unconstitutional. While the U.S. Supreme Court ruled in 1990 that the public safety threat posed by drunk drivers made sobriety checkpoints a reasonable seizure, some say, potential Fifth Amendment violations still exist. Many state laws call for license suspension upon a driver's refusal to submit to a breath test.

However, some advocates indicate that it is the impairment that drinking can cause that poses the threat, not the drinking itself per se. Studies indicate that talking on a cell phone, with or without a hands-free device, may cause more driver impairment than an individual operating a vehicle with a .08 BAC. In 2001, an American Automobile Association study revealed that other distractions--including eating, adjusting a radio or CD player, and having kids in the backseat--caused more impairment.

Drivers, pedestrians or passengers injured in an automobile accident caused by a drunken or distracted driver should contact a skilled personal injury attorney for counsel and representation.

Article provided by Weinstein Law
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