The Kickham Comment - Boston Criminal Attorney Blog
In case you haven’t heard, the National Transportation Safety Board (NTSB,) recently issued a recommendation that all 50 states, including Massachusetts, adopt a uniform, lowered blood alcohol content (BAC) standard to determine when someone is legally impaired (drunk/intoxicated) while driving.
Currently, the Massachusetts BAC standard that is used to determine whether or not a driver is legally drunk, is .08. This is also the standard used in most other states. This is called a “per se” standard, or per se law, because it means that anyone registering this amount of alcohol in their blood is legally presumed to be intoxicated. In other words, police and District Attorneys’ offices don’t have to legally argue, or prove, that key issue. If you take either a breathalyzer test or blood test and register a BAC of .08 or higher, Massachusetts law considers you drunk. Period.
The NTSB wants states to lower the legal intoxication limit from .08 to .05. Drunk driving laws in the U.S. are a matter of state law, not federal, so the NTSB has no power to force any state to enact its recommendations. Reducing the current.08 standard to .05 is almost cutting the current standard in half, so it’s aggressive, but its advocates say it is needed.
In looking at this recommendation, several key questions need to be asked. One key question in this debate is obvious: How many drinks does it take for the average person to reach a BAC of .08? While there is a considerable amount of variability in this answer, generally speaking, a 180-pound person can reach 0.08 threshold after consuming just two “standard” drinks in one hour. “Variability” is an important word to remember here, as it can be affected by a variety of specific factors, including:
* Age * Gender * Body type and weight – specifically the breakdown between muscle and fat * Medications
* Metabolism * Hydration
Second necessary question: What constitutes a “drink”? In Massachusetts (as well as most other states,) an alcoholic drink is defined as a 12 ounce beer, four ounces of wine, or one ounce of 80-proof alcohol. Hence, under a reduced .05 standard, a 175 lb. man could not drink more than one drink in one hour ,and a 120 lb. woman would likely have to drink even less than one “standard” drink in one hour.
Obviously, my practice defends people who have been accused of criminal offenses, including drunk driving. Along with everyone else, I too want to reduce drunk driving. I don’t want anyone I care about hurt by a drunk driver, myself included. But as someone who often sees innocent people charged with crimes that they did not legally commit, it’s important to ask: How far are we as a society willing to go in criminalizing conduct that should not necessarily be criminal? How far should we go in automatically concluding (remember what “per se” means) that someone – perhaps yourself – is automatically guilty of committing a crime by virtue of having two drinks in maybe 75 minutes, and later driving? Any difference of opinion on this subject is not over reducing drunk driving: Everyone, myself included, wants to do that. The question is, how to do it without making criminals out of people that really shouldn’t be made so? Convicting someone of an offense like this is to saddle them (some would say “brand” them) with a criminal record and a resultantly very serious burden the rest of their lives.
In my view as a Wrentham and Dedham Massachusetts criminal OUI attorney, that approach can be pretty extreme. Even motor vehicle safety groups like Mothers Against Drunk Driving (MADD) and AAA reportedly declined to endorse the NTSB’s recommendation for a .05 threshold. That’s not surprising when you consider the following: Would you be able to guess what a great many states’ BAC standard were in the mid-80’s? About .15. That’s almost twice what it is now. Since then, Massachusetts and most all other states have cut that figure in half, and enacted very tough drunk driving penalties. Massachusetts OUI/DUI penalties are some of the toughest in the nation. Click on that underlined term to see these penalties on our website. Those are all pretty severe penalties. So, what to do in the face of the NTSB’s recommendation that Massachusetts lower the BAC standard even further, to .05?
The lowered .05 cutoff was only one of almost 20 separate recommendations made by the NTSB. One other recommendation was that states should adopt more aggressive use of alcohol ignition interlock devices (IID’s). Our Melanie’s Law page talks about IID’s, and explains that under current Massachusetts law, IID’s are required for anyone convicted of a second or higher OUI offense. Under the Ignition Interlock Device program, the Massachusetts Registry of Motor Vehicles requires drivers who have received two or more convictions for DUI/OUI to install a state-approved Ignition Interlock Device in their vehicle, when and if their regular license is fully reinstated, or if they are issued a Massachusetts hardship license.
An Ignition Interlock Device is mounted inside the vehicle, and requires the driver to blow into a tube before turning the ignition. If the device registers a BAC of higher than .02, it will prevent the engine from starting. To ensure that offenders don’t intentionally disable or damage the device, the operator is required to report to the vendor that originally installed the device, every 30 days. The installer then downloads and transfers the data from the device to the Registry of Motor Vehicles. Installation of these devices is entirely the operator’s expense, and it isn’t cheap. Currently, any offender who is issued a Massachusetts hardship license is required by law to use and maintain the device for the entire duration of the hardship license, plus two additional years following reinstatement of the operator’s regular license.
I don’t think it would be necessarily unreasonable to require a person convicted of a first offense OUI to install an Ignition Interlock Device for a period of one (1) year, at his or her own expense, following reinstatement of their license. I think it is a less drastic measure than lowering the BAC from .08 to .05, and in the process making criminals out of many people who are anything but that. If we need to send a yet stronger message that drunk driving will not be tolerated, I think that requiring Ignition Interlock Devices for first offenders, for a period of twelve months initially, is a reasonable measure.