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Recently, the National Transportation Safety Board (NTSB) renewed its push to lower the blood alcohol concentration (BAC) limit in drunk driving cases to .05. Currently, the legal limit is .08 in all fifty states, but many countries across the globe use .05.

Critics believe the push to .05 is backed by ignition interlock industry, which helps fund organizations like Mothers Against Drunk Driving (MADD). As many states mandate ignition interlock devices for drivers convicted of DWIs to get back on the road, the ignition interlock industry is sure to profit from a lower BAC limit.

The non-cynical reason to lower the limit is because it will save lives. Nearly a third of traffic fatalities involve a driver impaired by alcohol. Even though the majority of traffic fatalities from impaired drivers involve much higher BACs than .05, the goal is to save lives even if it is not a drastic number.

Is someone even impaired at .05? Evidence of impairment can start to occur at under .08. The NTSB reports drivers begin to have difficulty with depth perception at .05 and other cognitive abilities at .07. But, the vast majority of impaired driving conduct generally occurs when drivers are at much higher BAC levels.

Notably, prosecutors do not need a driver to test .08 or more to charge them with DWI. There is a separate statute for merely being under the influence of alcohol.[1] And some prosecutors charge it when someone currently tests under .08. Rarely do those prosecutors want to proceed to trial without a test of .08 or more, but it is not uncommon to see it charged out that way.

When someone does test .08 or more in a DWI case, then prosecutors charge them with being under the influence of alcohol and testing .08 or more[2] as separate charges. If the defense attorney can get their client’s test suppressed, the prosecutor can then wish to proceed on the under the influence charge if the evidence of impairment is strong enough. But again, prosecutors want that test result to be .08 or more to charge someone under the per se statute. Something that will be easier to do, if states begin reducing the legal limit to .05.

Robert H. Ambrose is a criminal defense and DWI lawyer in Minneapolis and St. Paul, Minnesota. He has a Lead Counsel Rating in Drunk Driving Defense; was named one of the “Ten Best” DWI Attorneys for Client Satisfaction in Minnesota; and is a member of the National College for DUI / DWI Defense. St. Paul criminal defense lawyer; St. Paul criminal defense attorney; and DWI lawyer St. Paul.

[1] Minn. Stat. §169A.20, subd.1(1).

[2] Minn. Stat. §169A.20, subd.1(5).

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