Do BAC Limits Discriminate Against Alcoholics?

Thursday, February 15th, 2018

A Texas man who was convicted of a fourth DUI claimed that blood alcohol content limits discriminate against alcoholics.

Ralph Alfred Friesenhahn of San Antonio was convicted of his fourth DUI in 2016 and was sentenced to four years in prison after he rolled his vehicle outside of San Antonio, Texas. A later blood test revealed that Friesenhahn’s blood alcohol content was 0.29 percent, more than three times the legal limit of 0.08 percent.

Although some states are considering lowering the legal limit to 0.05 percent, all states currently have a limit of 0.08 percent.

At trial, Friesenhahn’s attorney motioned the court to dismiss the indictment against Friesenhahn arguing that the state’s legal limit discriminated against alcoholics. Not surprisingly, the judge denied the request and Friesenhahn was convicted of felony driving while intoxicated, the Texas equivalent to California’s “driving under the influence,” and was sentenced to four years in prison due to his prior convictions.

Friesenhahn’s attorney appealed the conviction, once again arguing that the state’s blood alcohol content limit of 0.08 percent discriminated against alcoholics in violation of the right to equal protection guaranteed under the United States Constitution and Texas Constitution. Specifically, she argued that the legal limit ignored the “protected class of alcoholics,” who have a high tolerance to alcohol, to be prosecuted for DUI charges when there is no indication that the alcohol impaired their ability to safely drive a vehicle even though they might be over the legal limit.

Sammy McCrary, chief of the felony division for the Comal County District Attorney’s Office argued that it’s absurd to suggest that the law treats alcoholics differently.

“You’re not being punished for being an alcoholic. It’s the driving that’s the problem,” McCrary said. “It’s making the decision to get into a 3,000-pound vehicle … after drinking.”

The Austin-based 3rd Court of Appeals agreed with McCrary with an opinion issued last week.

In denying that Friesenhahn and other alcoholics fall within a “protected class,” the court said that Texas law “provides two alternative definitions of intoxication. The first involves the loss of the normal use of mental or physical faculties; the second involves an alcohol concentration of at least 0.08…The alternative definitions are presented disjunctively…indicating that only one must be satisfied to establish that a person is legally intoxicated. Further, these alternative definitions apply to all persons charged with an intoxication offense…Thus, the alcohol concentration definition of intoxicated allows for a finding of intoxication based on an alcohol concentration of 0.08 or more without showing the loss of mental or physical faculties – whether the defendant is an alcoholic or not. Therefore, there is no classification in the statute that treats any persons, including [Friesenhahn’s] defined ‘class’ of alcoholics, differently than similarly situated persons: the 0.08 alcohol concentration level applies to all offenders prosecuted for DWI.”

In short, the court said that since the law treats all persons equally, there can be no violation of equal protection.

Let Friesenhahn’s case serve as a reminder that, while you may not be “impaired” when driving your vehicle, as long as you’re over the legal limit of 0.08 percent blood alcohol content, you’re putting yourself at risk of a DUI arrest, charge, and possible conviction.

 

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Lowering Legal Limit to 0.05 Percent BAC

Thursday, January 18th, 2018

It’s been a debate for some time now. Should the legal limit for how much alcohol someone can have in their system while driving be lowered from 0.08 percent to 0.05 percent?  

The National Academies of Sciences, Engineering, and Medicine believes so. But before we get into what their newly released report says, let’s put the numbers into context.

According to the National Highway Traffic Safety Administration, a male weighing 140 pounds would be at, or close to, a 0.08 percent blood alcohol content having had three drinks within an hour. A female weighing 120 pounds would be at, or close to, 0.08 percent blood alcohol content having had just two drinks within an hour. Regardless of gender, your blood alcohol content will not be as high if you weigh more. Conversely, your blood alcohol content will be higher if you weigh less.

On the other hand, male weighing 140 pounds would be at, or close to, 0.05 percent blood alcohol content having had two drinks within an hour. A female weighing 120 pounds would be at, or close to, 0.04 percent blood alcohol content having had just one drink within an hour.

Of course, these figures are approximate and depend on several factors which include, but are not limited to, whether the person ate, what they ate, what they drank, and how fast they drank it. But based on these approximate numbers, we can see that for both males and females, the difference between a 0.08 and a 0.05 percent blood alcohol content is about one less drink in an hour.

Should the legal limit be lowered to 0.05 percent, that means for some, only one drink or less and they would be breaking the law if they get behind a vehicle. According to the U.S. government-commissioned panel of the National Academies of Sciences, Engineering, and Medicine, that’ll prevent DUI-related collisions and fatalities.

“The plateauing fatality rates indicate that what has been done to decrease deaths from alcohol-impaired driving has been working but is no longer sufficient to reverse this growing public health problem,” said report committee chair Steven Teutsch in a news release from the National Academies. “Our report offers a comprehensive blueprint to reinvigorate commitment and calls for systematic implementation of policies, programs, and system changes to renew progress and save lives.”

Teutsch is an adjunct professor at the University of California, Los Angeles School of Public Health.

The 489-page report also recommends that states significantly increase alcohol taxes, stricter regulation on alcohol advertising, broadening ignition interlock device laws, and stricter laws to prevent the sale of alcohol to people under the age of 21, amongst other things.

Not everyone is on board with the panel’s suggestions.

“[We], along with other organizations focused on traffic safety such as MADD, strongly supports the strict enforcement of the 0.08 BAC level,” said the Distilled Spirits Council in a statement. “Reducing the BAC limit to 0.05 will do nothing to deter the behavior of repeat high BAC drivers who represent the vast majority of drunk driving fatalities on the nation’s roads.”

Just as a reminder, a person can be arrested, charged, and convicted of a DUI if they are “under the influence,” regardless of what their blood alcohol content is. This means that a person can have a 0.04 percent blood alcohol content as long as they cannot drive a vehicle as a reasonable sober person would under similar circumstances.

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Drunk Drivers Say Personal Breathalyzers Helped them Prevent Driving Drunk Again

Friday, December 1st, 2017

This past August, the Colorado Department of Transportation gave 475 personal smartphone breathalyzers to people who had been convicted of a DUI. In addition to the obvious objective of preventing drunk driving, the Colorado Department of Transportation also wanted to see if, in fact, having the breathalyzer actually helped keep them from driving drunk again.

After recently surveying those people who were given breathalyzers, the Colorado Department of Transportation’s results showed that having a personal breathalyzer helped those people avoid driving drunk. In fact, a whopping 90 percent said that having a breathalyzer helped them avoid driving drunk and 94 percent said that they would recommend a personal breathalyzer to others who regularly drink alcohol.

The Colorado Department of Transportation teamed up with BACtrack, who created the smartphone breathalyzer, during the informal study. The breathalyzer is linked to a smartphone app through Bluetooth. If the user determines that they cannot legally drive, the smartphone app can order them a taxi or Uber.

I’ve written a few times on the benefits of purchasing a personal breathalyzer.

Like those handed out by the Colorado Department of Transportation, people can buy breathalyzers that can either be attached directly to a smartphone or connect to smartphone through Bluetooth and will run buyers between $100 and $150.  

Other, less expensive, breathalyzers can come on keychains and can cost buyers as low as $15. Like many things, quality comes with price and the results of these novelty breathalyzers are questionable at best and decrease in accuracy after time.  

Some breathalyzers are handheld and resemble those commonly associated with the breathalyzers used by law enforcement. Those breathalyzers range widely in terms of price and quality. Some come as low as $50 and some can go as high as a few hundred dollars. Obviously, the less expensive handheld breathalyzers have lower quality, but those more expensive handheld breathalyzers are the ones used by law enforcement because of their accuracy and may even be approved by the Food and Drug Administration (FDA). Law enforcement grade breathalyzers have an accuracy range of plus or minus 0.002 percent which means that if a person is a 0.08 percent, the breathalyzer results can range between 0.078 percent and 0.082 percent.

I purchased my own personal handheld breathalyzer to experience first-hand what I’ve been writing about. I didn’t break the bank, but I did spend $60 on the lower end of the legitimate handheld breathalyzers. After having a few drinks, I gave it a go. While I don’t know what my actual blood alcohol content was because different readings were provided, I can say that the multiple readings ranged by about 0.03 percent. In other words, using that range, a person could register between a 0.095 percent and 0.65 percent, or between a 0.18 percent and 0.12 percent, or between 0.26 and 0.23 percent. After a few months of use, the breathalyzer stopped working and I need to send it to the manufacturer.

While on the face of it, it might seem as though this range is too large to help drivers know whether they are okay to drive because if a person is actually at a 0.08 percent, the breathalyzer reading can show results as high as 0.095 percent and as low as 0.065 percent. Having said that, if a person knows that a breathalyzer is less than accurate and shows a blood alcohol content of 0.065 percent, they may know that they might actually be at a 0.08 percent and abstain from driving. And bear in mind that this is one of the less accurate handheld breathalyzers.

At a minimum, having a personal breathalyzer might help people bridge the gap between how a person perceives what their intoxication level is and what their blood alcohol content is. And while many breathalyzers might not provide an accurate reading, it might still prevent people from driving merely knowing that they are close to the limit. And knowing a range is certainly better than knowing nothing and making a stupid guess.

 

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Can Personal Breathalyzers Prevent Drunk Driving?

Thursday, September 14th, 2017

How many people would think twice about getting behind the wheel after having a few drinks knowing that they were above the legal limit? My guess is a lot. No longer must a person guess whether they are over or under the legal limit if they have their own personal breathalyzer.

So can a personal breathalyzer prevent a DUI? I don’t see why not.

Breathalyzers are so readily available nowadays that, in addition to the standard multiple-use breathalyzer, they have developed single-use disposable breathalyzers and breathalyzer apps for the smartphone.

As you can imagine, the range in the quality and price of personal breathalyzers is quite large. Costs will vary between $15 and several hundred dollars. Breathalyzers under $50, and those coming on key chains have questionable accuracy from the start and accuracy continues to decrease after multiple uses.

Unlike novelty breathalyzers, quality breathalyzers will be backed by the Food and Drug Administration (FDA). This means that the FDA conducts research to confirm that the breathalyzer does what its literature says it does.

Just because I believe that personal breathalyzers can prevent a DUI, it doesn’t mean that they are 100% accurate. Almost all quality breathalyzers, like those the police use, require calibration after repeated use to ensure accuracy. Some products allow for owners to calibrate themselves and some require that the breathalyzer be sent to the manufacturer for calibration. Heavily used and non-calibrated breathalyzers will likely not be accurate.

It is possible for a person’s blood alcohol content to continue to rise after a breathalyzer reading, especially if they’ve only recently stopped drinking. Therefore, it is also possible for a person to have a blood alcohol content of 0.07 when they leave the bar (and when they test themselves) and a 0.09 after they’ve been driving for a while. If that is the case, you can still be arrested and charged for a California DUI.

Lastly, a person does not necessarily need to be above a 0.08 blood alcohol content to be arrested and charged with a California DUI. A person can be arrested and charged with a California DUI if they are above a 0.08 percent blood alcohol content or if they are “under the influence.” In other words, you can be a 0.07 percent, but if an officer determines that you cannot safely operate a vehicle as a sober person could, you can still be arrested and charged with a California DUI.  A breathalyzer may determine if you are under the legal limit, but it cannot determine whether you are “under the influence.”

Although I can’t imagine some DUI’s not being prevented with personal breathalyzers, the Colorado Department of Transportation wants to be sure. They are providing personal breathalyzers to people with prior DUI’s in certain counties.

Those who participate in the program have agreed to actually use the breathalyzer and complete a survey. At the end of the program and when the survey is completed, participants can keep the breathalyzer.

You can be sure that when the Colorado Department of Transportation releases the results of this experiment, you can be sure that I’ll update you with that information.  

 

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Texalyzer to Help Cops Crack Down on Distracted Driving

Wednesday, May 10th, 2017

You heard me right. Not a breathalyzer, but a texalyzer. A new device has been developed that could help law enforcement determine whether a person was using a cell phone at the time a traffic collision occurred.

Just as a breathalyzer can help determine whether alcohol in a person’s system played a part in a traffic collision, the texalyzer can help law enforcement and prosecutors determine whether a driver’s texting possibly played a part in a traffic collision.

By connecting the phone via a cord to the device, law enforcement would be able to know what apps were open and in use with a time stamp.

Lawmakers in New York and several other cities are considering allowing law enforcement to use the device to crack down on texting while driving. It is currently illegal in California to “drive a motor vehicle while holding and operating a handheld wireless telephone.” This provision includes texting while driving.

Cellebrite is the company behind the device and has been working with Ben Lieberman of New Castle, N.Y. whose son was killed in a 2011 car crash.

The driver who collided with the car whom Lieberman’s son was a passenger originally told law enforcement that he had fall asleep behind the wheel which led his car veering into oncoming traffic.

Law enforcement could not check the driver’s phone to see if he was lying without a warrant.

"We often hear, ‘just get a warrant’ or ‘just get the phone records.’ … The implication is that the warrant is like filling out some minor form," said Leiberman. "It’s not. In New York, it involves a D.A. and a judge. Imagine getting a D.A. and a judge involved in every breathalyzer that’s administered, every sobriety test that’s administered."

Leiberman was able to eventually get the phone records through a civil lawsuit which showed that the driver had been texting before the collision.

Privacy advocate groups have concerns with the device which is still in development.

"Distracted driving is a serious concern, but this bill gives police power to take and search our phones after almost every fender-bender," says Rashida Richardson, legislative counsel for the New York Civil Liberties Union. "This is a concern because our phones have some of our most personal and private information — so we’re certain that if this law is enforced as it is proposed, it will not only violate people’s privacy rights, but also civil liberties."

The bill that Richardson is referring to is New York Senate Bill S2306 which provides for the field testing of mobile telephone and portable electronic device usage while driving after an accident or collision.

Recent studies have shown that distracted driving, like texting while driving, is just as dangerous a drunk driving.

A new study by the Cambridge Mobile Telematics, a leader in smartphone-centric telematics, is one such study.

Some of the study’s key findings included: Distracted driving occurred during 52 percent of trips that resulted in a crash; on drives that involved a crash, the average duration of distraction was 135 seconds; phone distraction lasts for two minutes or more on 20 percent of drives with distraction, and often occurs at high speeds; the worst 10 percent of distracted drivers are 2.3 times more likely to be in a crash than the average driver, and 5.8 times more likely than the best 10 percent of distracted drivers.

You can be sure we’ll be keeping our eyes and ears open for whether law enforcement usage of such a device gains any traction here in California.

 

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