Utah Lawmakers Vote to Lower State’s BAC Limit to 0.05

Wednesday, March 15th, 2017

Utah could soon have the lowest blood alcohol content limit in the country after the state’s lawmakers voted to lower the threshold for driving to 0.05 percent.

Currently in California, as well as the rest of the country, the legal blood alcohol limit that a person can have in their system is less than 0.08 percent.

In 2013, the National Transportation Safety Board (NTSB) voted to recommend that states lower their blood alcohol limits to 0.05 percent and cited studies that have shown that impairment can occur with a blood alcohol content of 0.05 percent. And now it seems as though Utah has taken up their recommendation.

The new law, which was sponsored by Rep. Norm Thurston, was advanced on the proposition that a lower blood alcohol content could lower incidences of drunk driving.

“The .08 sends a false message … it’s kind of a game — how much can I drink and still stay under the .08?" said Rep. Kelly Miles. “So this will benefit those because now the message is, ‘I shouldn’t drink anything and drive.’ This will send a message to the nation, but I think the message is ‘you are welcome to come here to Utah, you are welcome to drink, but then please make arrangements for a ride.”

Not all of Utah’s lawmakers were on board.

“I don’t think there’s enough data out there that would suggest that lowering the limit would reduce alcohol-related traffic fatalities,” said Rep. Gage Froerer, noting that texting while driving and distracted driving resulted in more deaths than drunk driving. “No one can dispute the validity of not drinking and driving — that’s a given. But the question comes down to personal freedoms, rights and enforcement. Our efforts are better spent on education and informing the public.”

The change in law begs the question, “How many drinks does it take to get to a blood alcohol content of 0.05 percent?”

The California DMV provides very general chart of for guidance on how many drinks it takes to get to certain blood alcohol contents. I emphasize that the chart is only for guidance. A number of factors will affect how many drinks will get a person to 0.8 and 0.05.

A 160-pound male who has two drinks in an hour will have a blood alcohol content around 0.07 to 0.08 percent. One drink will put the same 160-pound male between 0.04 and 0.05 percent.

A 140-pound female who has two drinks in an hour will have a blood alcohol content around 0.09 percent. One drink will put the same 140-pound female around 0.05 percent.

Across the chart, the difference between getting a DUI in Utah, if the law is passed, and the rest of the country including California is about one drink in an hour. And no, it does not matter what type of drink it is. 1.5 ounces of 80 proof liquor, 12 ounces of 5% beer, and 5 ounces of 12% wine all have about the same amount of alcohol and all count as one drink. 

If Utah’s governor, Gary Herbert, signs the bill, the new law would take effect on December 20, 2018. Just in time for the New Year’s celebrations.

 

 

 

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California Lawmakers Seek to Create Drugged Driving Task Force

Friday, March 3rd, 2017

With the legalization of recreational marijuana in California, lawmakers are pushing efforts to pass new legislation regarding marijuana, particularly when it comes driving after marijuana use. Tom Lackey (R-Palmdale), who is no stranger to introducing anti-DUI laws in California, has introduced a bill that would create a drugged driving taskforce under the supervision of the Commissioner of the California Highway Patrol.

“The bill, AB-6, is a reasonable approach forward to address our fight against drugged driving,” Lackey told the Los Angeles Times. “The urgency of this should be very clear to all of us.”

The bill, which was proposed by the California Police Chiefs Association and introduced by Lackey, if approved, would add a completely new section to the current California Vehicle Code.

The Legislative Counsel’s Digest for the bill says the following:

“This bill would require the commissioner to appoint, and serve as the chair of, a drugged driving task force, with specified membership, to develop recommendations for best practices, protocols, proposed legislation, and other policies that will address the issue of driving under the influence of drugs, including prescription drugs. The bill would also require the task force to examine the use of technology, including field testing technologies, to identify drivers under the influence of drugs, and would authorize the task force to conduct pilot programs using those technologies. The bill would require the task force to report to the Legislature its policy recommendations and the steps that state agencies are taking regarding drugged driving.”

The task force would include representatives from local law enforcement, prosecutors, various representatives from the marijuana industry, representatives from the pharmaceutical industry, representatives from the Office of Traffic Safety, representatives from the National Highway Traffic Safety Association, and licensed physicians.

The Assembly Public Safety Committee unanimously recommended the bill after a hearing in which Karen Smith, a teacher from Antelope Valley, provided emotional testimony about how her husband had been killed a driver who was under the influence of marijuana.

“He was just 56 years old. We had been married for 34 years,” said Smith. “It was all wiped out in just one second by a person who chose to drive under the influence of THC.”

There’s no question that marijuana affects driving ability. Exactly how and to what degree, is up for debate. What is certain however, is that there is a very important difference between being under the influence of marijuana and having THC in your system, and the task force, if AB-6 passes, had better understand the difference.

It is well known that the "per se" limit for how much alcohol can be in a person’s system is 0.08 percent blood alcohol content. With alcohol, there is a fairly strong correlation between blood alcohol content and intoxication. In other words, there is a high probability that a person with a 0.08 blood alcohol content is feeling the effects of alcohol intoxication such that they cannot operate a vehicle as a reasonable and sober person would.

The same cannot be said about the intoxicating effects of marijuana use and the amount of THC in a person’s blood. Unlike alcohol, THC is fat soluble which means that it leaves the body at a much slower rate. In fact, chronic users of marijuana can have THC in their blood weeks after use. Therefore, someone who has smoked marijuana three weeks ago can still be arrested in states with a "per se" THC limit even though they are no longer under the influence of marijuana and perfectly sober.

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Rare Disorder Causes DUI without Drinking

Friday, February 10th, 2017

A woman, who requested to be called Sara to maintain confidentiality and protect her legal career, was arrested in 2015 for driving under the influence when she collided with a parked vehicle. It was later determined that she had a blood alcohol content of 0.10 percent. Sara had been arrested for DUI before back when she was an admitted alcoholic. This time, however, was different. Sara, now a recovering alcoholic for nearly ten years, only drank orange juice.

Sara drank orange juice and lots of it, sometimes up to a gallon per day. That orange juice, however, might as well have been alcohol for Sara.

Sara suffers from auto-brewery syndrome. Yes, that is an actual medical condition albeit an extremely rare one. Auto-brewery syndrome causes a person’s body to produce extremely high levels of yeast in the digestive track. If you know anything about how beer is made, you’ll know that yeast eats the sugar that is extracted from boiling grains and then releases carbon dioxide and alcohol. See where I’m going? The yeast in Sara’s system ate the sugars from the orange juice and produced alcohol in Sara causing her to be intoxicated without having a sip of alcohol.

Shortly after she was diagnosed last July, Sara accepted a plea deal for a reduced charge of reckless driving with probation.

Sara estimates that she spent $25,000 fighting the drunk driving charge, with expenses including attorney fees and a privately commissioned polygraph test. She says she chose to take a deal rather than go to trial because a conviction could have been career-ending.

“As soon as I stopped the orange juice, I was fine,” said Sara. “I don’t even tell anyone [about the disorder] because you can almost see them rolling their eyes.”

In 2014, a New York judge dismissed the DUI charge of a woman who was pulled over after a motorist noticed her driving poorly. After police arrived, it was determined that the woman had a whopping 0.33 percent blood alcohol content.

Another characteristic of the disorder is an unusually high tolerance to the alcohol in their system.

The woman’s lawyer hired two physician assistants and a breathalyzer specialist to evaluate the woman over a 12-hour period. They found that the woman’s BAC was double the legal limit at 9:15 AM. At 6 PM, it was triple, and at 8:30 PM, it was four times higher. This was around the same time when the police pulled the woman over for DUI. In other words, her body was producing alcohol consistently throughout the day. Oddly, however, the woman did not exhibit any signs of intoxication until her blood alcohol content reach between 0.30 and 0.40 percent where she would feel dizzy.

Normal people with a blood alcohol content that high are usually unconscious at a minimum, some would be suffering from alcohol poisoning.

“My client does suffer from an extremely unusual condition, and we conducted very extensive medical research and presented our findings to the judge,” said the woman’s defense attorney, Joseph A. Marusak. “To my knowledge, this is the first time a DWI case has ever been dismissed on this basis in New York State, and as far as I can tell, it may be the first time in the country.”

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Company Behind Personal Breathalyzer Settles Dispute with FTC

Thursday, January 26th, 2017

I’ve never hidden my belief that if a personal breathalyzer can prevent a DUI, it should be used. That being said, it seems the company behind one of the most popular personal breathalyzers on the market has settled with the Federal Trade Commission (FTC) over false claims of its accuracy.

On the fifth season of ABC’s hit show “Shark Tank,” CEO and founder of Breathometer Inc., Charles Michael Yim, won over the “shark” investors with an invention called the “Breathometer” that allowed users to a detect their own blood alcohol content through their smart phone. The device attached to smartphone, would be blown into by the user, and the smartphone would calculate the BAC through an app. Yim’s pitch included the prospect that the Breathometer could prevent incidences of driving under the influence of alcohol.  The investors were so impressed with Yim’s invention that they offered up a $1 million dollar investment in exchange for a 30% stake in his startup.

The Breathometer became a consumer hit partly due to advertisements which claimed that the devices accuracy was backed up by government-lab grade testing. According to the FTC, sales for the Breathometer totaled $5.1 million.

However, more than three years after the episode aired, the FTC announced that Yim and Breathometer Inc. had settled a claim that the device “lacked scientific evidence to back up their advertising claims.” The complaint also alleged that the company knew that one variation of the Breathometer, the Breeze, “regularly understated” blood alcohol content levels.

While Yim and Breathometer Inc. did, in fact, settle with the FTC, they did not admit or deny the FTC’s allegations.

Under the settlement with the FTC, Yim and Breathometer Inc. are barred from making claims of the device’s accuracy unless the claims are supported through “rigorous testing.” The company also agreed to notify purchasers of the product to offer full refunds.

“People relied on the defendant’s products to decide whether it was safe to get behind the wheel,” Jessica Rich, director of the FTC’s Bureau of Consumer Protection, said in a statement. “Overstating the accuracy of the devices was deceptive — and dangerous.”

Breathometer recognized the settlement on its website by stating, “We feel it is important to clarify that this settlement does not undermine our achievements in creating quality consumer health devices.”

Kevin O’Leary, one of the Shark Tank investors, responded to the settlement by stating that the company proactively stopped the manufacturing of the Breathometer in 2015 before the FTC’s initial inquiry.

I stand by my assertion that a personal breathalyzer is a good way to prevent a DUI. Just do some research beforehand on the reliability of what you purchase. According to digitaltrends.com, the best personal breathalyzer for 2016 was the BACtrack S80 Professional Breathalyzer which will run you $125. According to the website, the best smartphone breathalyzer was the BACtrack Mobile Smartphone Breathalyzer at $98, the best portable breathalyzer was the BACtrack Keychain Breathalyzer Portable starting at $26, and the best budget breathalyzer was the VastarAB120 Professional at $20.

Better to spend $125 (at most) to prevent a DUI than to spend the thousands of dollars it will cost you if you are arrested on suspicion of a DUI.

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Pilot Arrested for DUI

Wednesday, November 23rd, 2016

An Indiana man was recently arrested on suspicion of driving under the influence. It was later discovered that he was on his way to the Indianapolis airport. The man, identified as Robert Harris III, is a commercial pilot.

According to police, Harris’ eyes were bloodshot, his speech was slurred, and he had trouble with coordination. In fact, according to court documents, field sobriety tests could not be completed because Harris almost fell over while trying to walk. It was later determined that his blood alcohol content was 0.29 percent.

It is unclear if Harris was scheduled to fly that evening and the airline for which Harris was employed refused to comment on the matter.

While federal regulations require that pilots follow an 8-hour “bottle to throttle” rule, some airlines require a 12-hour period between a pilot’s last drink and flight. Also, according to the Federal Aviation Administration, a pilot must report an alcohol-related conviction, suspension, revocation, and/or failed breath test within 60 days.

Since federal aviation regulations do not require a person to hold a driver’s license to fly a plane, the arrest and a subsequent conviction for driving under the influence does not necessarily preclude piloting aircraft following the arrest and/or conviction.

“The FAA (Federal Aviation Administration) does not hesitate to act aggressively when pilots violate the alcohol and drug provisions of the Federal Aviation Regulations,” said FAA spokesperson Elizabeth Cory. “Airlines are required to have random testing programs in place.”

“The FAA evaluates these cases on an individual basis, which could affect the pilot’s certificate eligibility,” said Cory.

Not surprisingly, this did not settle well with Mothers Against Drunk Driving (MADD).

“I would have assumed the FAA would have similar sanctions to the state of Indiana and withholding their license to operate a motor vehicle whether that’s a plane or car,” said MADD spokesperson Lael Hill. “It’s a little bit concerning knowing someone accused of a crime and is allegedly drinking and driving and could have their driver’s license taken away and not their pilot’s license or certificate.”

Hypothetically, had Harris had been on his way to the airport to fly, what would have happened had he flown an airplane under the influence?

First off, the California Vehicle Code does not apply to aircraft. Rather, crewmembers of civil aircrafts, including pilots, are governed by the FAA. Title 14 of the Code of Federal Regulations section 91.17 states that, “no person may act or attempt to act as a crewmember of a civil aircraft within 8 hours after drinking alcohol, while under the influence of alcohol, while using any drug that affects the person’s faculties in any way contrary to safety, or while having an alcohol concentration [BAC] of 0.04 or greater in a blood or breath specimen.”

Furthermore, the FAA requires random alcohol screenings of pilots and are subject to an implied consent law similar to California’s DUI implied consent law.

Similarly, California Public Utility Code section 21407 reads, “It is unlawful for any person to operate an aircraft in the air, or on the ground or water in a careless or reckless manner so as to endanger the life or property of another. In any proceeding charging operation of aircraft in violation of this section, the court in determining whether the operation was careless or reckless shall consider the standards for safe operation of aircraft prescribed by federal statutes or regulations governing aeronautics.”

California penalties for a first time FUI include a county jail sentence of 30 days to six months, and/or a fine of $250 to $1,000.  Federal penalties, on the other hand, are far more severe and can include up to 15 years in federal prison and up to $250,000.

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