Small percentage of DUI arrests made under 0.08; police arrest on impairment
Publication: Daily Herald
Posted: April 16, 2017
By: Kurt Hanson and Katie England
Jim Tracy’s father-in-law was driving home from visiting his wife in the hospital in 1980 when a drunk driver careened across the center lane on the bridge both drivers were crossing. There were no shoulders, no sidewalks, no room for error. The drunk driver struck the vehicle of Jim Tracy’s father-in-law head on, killing him.
“I’ve seen a lot of tragedy, not just in my family, but in other places, having to go make those notifications because someone lost their life … to a drunk driver,” said Jim Tracy, Utah County sheriff, a strong supporter of House Bill 155, lowering the legal blood alcohol content limit in Utah from 0.08 to 0.05 percent.
In the 2017 general session of the Utah State Legislature, HB 155, sponsored by Rep. Norm Thurston, R-Provo, passed, making Utah the first state with a BAC legal limit of 0.05 percent. It will go into effect Dec. 30, 2018, with expected changes to enforcement, regulation and prosecution pending before then.
But until the law goes into effect, many have questions about enforcement. Will agencies have an influx of DUI arrests? Are casual drinkers in danger of being arrested after drinking a glass of wine during an evening out on the town? And what, if any, changes to the experimental law need made before the effective date?
The decision to lower the BAC to 0.05 percent may be unprecedented in the United States, but many nations — including Canada and the majority of Europe — already have BAC limits below 0.08 percent.
Making changes to legal BAC levels on a state level is also nothing new. Historically, states adopted legal levels of 0.10 percent when drunk driving laws were first implemented across the nation.
In 1998, 35 states still had BAC limits of 0.10 percent, according to information from the Alcohol Policy Information System. That number gradually diminished, with Minnesota becoming the last state to lower that level to 0.08 percent in 2005.
That move toward a 0.08 percent standard was spurred by a law signed by then-President Bill Clinton in 2000, which required states to make the change or lose a portion of federal highway funds.
Thurston’s motivation behind further lowering BAC levels stemmed from a desire to keep impaired drivers off the road — not to keep people from drinking alcohol at all, as some have speculated.
Based on data from the National Transportation Safety Board, Thurston estimates that the new limit could keep about 10 percent of impaired drinkers from choosing to get behind the wheel in the first place.
He cited statistics from the Utah chapter of Mothers Against Drunk Driving, saying that about 3,000 people drive impaired in Utah every day, about 1 percent of which are caught by law enforcement. If 10 percent choose not to make that trip because of the new law, that could mean 300 fewer impaired drivers on the road, Thurston said.
Statistics: arrests under 0.08
DUI arrests are made based on level of impairment — not on a person’s BAC, according to Sgt. Todd Royce with the Utah Highway Patrol. So even with the legal limit of 0.08 percent, some DUI arrests are made below that threshold.
Overall, very few DUI arrests have been made where the arrestee’s BAC was below 0.08 percent. According to the Utah Commission on Criminal and Juvenile Justice’s 2016 DUI report to the Utah Legislature, only 3 percent of all DUI arrests in 2016 reported BACs below 0.08 percent.
The largest percentage of DUI arrests, 14.8 percent, reported a BAC between 0.11 and 0.15 percent.
In Utah County, the statistics are similar. According to records from various police departments across the county, detailing more than 220 DUI arrests made in Utah County in 2016, the average BAC was reported as 0.109 percent, just shy of the range at which the majority of most arrests across the state were made.
The highest BAC reported was an arrest made April 1, 2016, in Lehi. The arrestee had a BAC of 0.373 percent.
Getting to 0.05 percent
One concern many have had with the bill is that a reduced BAC would make it easier for a casual drinker to exceed the legal limit — and possibly be nailed with a DUI when driving after one or two drinks.
According to the national Centers for Disease Control and Prevention, a 160-pound male would likely reach a 0.08 percent BAC after about four alcoholic drinks in one hour. That same man would likely reach 0.05 percent BAC after approximately 3 alcoholic drinks.
An alcoholic drink is either 12 ounces of beer at a 5 percent alcohol by volume, five ounces of wine or 1.5 ounces of 80 proof liquor.
However, many factors go into reaching a certain BAC. A person who has drinks with dinner, or over the course of several hours, would reach a certain level of BAC much slower than someone who drinks their servings quickly and on an empty stomach.
The National Transportation Safety Board in 2013 cautioned that visible signs of impairment could be seen after one drink and advised lowering the BAC limit to 0.05 percent, an initial push behind the new law in Utah.
“The level of impairment I have seen at 0.05, in my opinion, justifies that there should be a sanction (at 0.05),” Tracy said.
Keith Squires, Utah Department of Public Safety Commissioner, sent out a letter to Utah’s police chiefs and sheriffs on March 30, saying that he does not expect any significant changes to law enforcement procedures. A fact sheet included with the letter points out that impairment can exist below 0.08 percent BAC. But, law enforcement will continue to focus on the level of impairment.
“Law enforcement officers in Utah, consistent with national standard, are trained to make arrests for DUI based on impairment and the inability to safely operate a motor vehicle,” Squires said in the letter.
Though law enforcement officers need to see visible signs of impairment to proceed with field sobriety tests, they don’t necessarily need to see signs of impairment to initiate a stop. For example, an officer, such as Deputy Roger Lowe with the Utah County Sheriff’s Office, may see a vehicle driving with a burnt-out taillight. He then has probable cause to pull the vehicle over and initiate a traffic stop. Lowe said DUI arrests are initiated this way about 50 percent of the time for him.
If he smells alcohol or observes other signs of impairment, he may then conduct field sobriety tests.
“I don’t always see a driving pattern and stop them,” Lowe said. “It takes more than just a driving pattern, because there are several things that can affect driving patterns.”
The three standardized field sobriety tests are the nine step walk and turn test, the horizontal gaze nystagmus test and the one-leg stand test. They were introduced by the National Highway Traffic Safety Administration in 1981 and have been the standard for law enforcement across that nation.
Depending on if the test is passed or failed, the officer can then choose to use the portable Breathalyzer. The portable Breathalyzer is not as accurate or reliable as the Intoxilyzer at police departments, and only Intoxilyzer results are admissible in court.
In support of new law
The bill has faced opposition from many players as some have said this bill would not have passed were it not in Utah, a deep-red state. But those who support the bill disagree.
“This transcends politics, it goes to the issue of how to protect our traveling public,” Tracy said.
Data shows impairment can occur at BAC levels lower than 0.08 percent, depending on how frequent a drinker imbibes. One of Lowe’s most memorable DUI arrests was a belligerent man driving circles through a field.
And the man’s BAC? 0.04 percent.
“It was his first drink in 20 years,” Lowe said. “But he appeared to be extremely impaired. Everybody’s a little different.”
Royce said troopers don’t arrest based on the magic 0.08 percent number, but rather impairment. If a driver’s BAC is 0.06 percent but they have observable signs of impairment, they can be arrested.
“We make an arrest on impairment,” Royce said. “That’s what a lot of people are getting confused with is how the law reads right now, it says 0.08 or impaired.”
Utah has always been a trendsetter for DUI laws. In 1983, Utah, along with Oregon, were among the first to lower their BAC limit from 0.10 percent to 0.08 percent, which is now the federal legal limit.
That same mentality of trendsetting may continue. Lawmakers in Washington state are looking at similar legislation, though a similar proposal died in Hawaii’s 2017 Legislature.
“This is an issue of trying to establish good public safety policies,” Tracy said.
But support for the measure is not across the board. Many opposed the bill on the grounds that it might hurt the state’s tourism and restaurants.
Opponents warned that the new law would act as a deterrent for state visitors — driving them to choose to visit other states instead, or choose to drink at home rather than ordering a drink at a restaurant.
The American Beverage Institute went so far as to purchase full-page ads in the form of a “Thank you note” from Colorado for sending tourism their way.
“Just wanted to thank you for passing the .05 BAC law. Arresting moderate social drinkers for having as little as one drink will certainly make us look more attractive to most tourists, businesses and skiers,” the ad said.
Groups including the Salt Lake Area Restaurant Association participated in a rally that was held in Salt Lake City after the bill passed, urging Gov. Gary Herbert to veto the legislation.
Lt. Brian Wolken, patrol lieutenant at the Provo Police Department, said he believed the new threshold could affect casual drinkers who don’t think they are impaired.
“0.05 is a pretty low threshold and there are people out there who may not realize after a drink or two they’re at that level,” Wolken said.
Wolken said his initial reaction to the news of the new BAC limit was mixed, and is an indication of different priorities.
“I hoped they would streamline the process for us a little bit rather than lowering the BAC,” Wolken said.
According to Wolken, it takes about three hours to make a DUI arrest.
“That’s not if there’s a traffic accident involved,” Wolken said. “If there’s a traffic accident or an injury, now we have to go to the emergency room, and get them medically cleared before we can book them into jail.”
Wolken’s question is that if there are more drivers on the road who fall into the category of being legally impaired, will that mean more time and resources spent on DUIs?
Many people assume that the law will result in a larger number of DUI arrests. But, if the law works as intended, Thurston said law enforcement might actually be processing fewer DUIs.
Law enforcement will arrest the same percentage of impaired drivers no matter how many are on the road, Thurston said, so if 10 percent of impaired drivers choose not to drive on Utah roads, law enforcement may even see the number of DUI arrests drop accordingly.
“So instead of stepping up (enforcement), continue to do what (law enforcement) is already doing,” Thurston said. “Just do everything the same, and turn the evidence over to the prosecutors, and they’ll take care of the difference between 0.05, 0.07 and 0.09.”
Possible changes to the law
Gov. Gary Herbert signed the bill into law while promising the bill will be scrutinized and possible changes made before it goes into effect.
The Utah Legislature will be able to take a look at possible changes during the 2018 legislative session, including whether or not the penalties should be lessened for a person whose BAC tests in the 0.05 to 0.07 percent range.
Thurston said he is currently meeting with concerned parties, including DUI prosecutors, members of the tourism industry and law enforcement. For instance, the Utah Shooting Sports Council has concerns because BAC laws are also tied to the laws that regulate carrying weapons.
“We’ve got a pretty decent handle on what the study list needs to be,” Thurston said. “Our staff is working on figuring out what do we need to know about those issues to work through them logically.”
As far as the possibility of looking into lowering penalties for those in the 0.05 to 0.07 percent range, Thurston said that’s a discussion he’s willing to have.
Utah’s DUI laws are complicated, Thurston said, and penalties can depend on many factors, including if you are a repeat offender, commercial driver or under the age of 21. But, he said, looking at lower penalties for lower BACs is something he’s willing to consider.
“If somebody is a first-time offender, and they’re a 0.06 (percent), and another person is a first time offender and they’re a 0.30 (percent), should they have the same penalty?” Thurston said. “And I don’t know that I know the answer to that question, but it’s certainly something I’m willing to discuss with people.”
Under current law, someone can already receive a DUI under the 0.08 percent threshold if it can be proven that they are impaired.
The purpose of the law, then, is to clarify for drivers that drinking and driving is not OK, Thurston said.
Too many people currently believe that as long as they are under 0.08 percent, that they can drive, Thurston said.
“People say, ‘I’m not at 0.08 (percent), and I feel OK. Am I impaired?’” Thurston said. “Well now you’ve got this guesswork. Because you don’t feel like you’re impaired, but you very well could be. In fact, if you are over 0.05 (percent), you probably are (impaired).”
It remains to be seen whether the law has the intended effect of reducing the number of impaired drivers on the road, there are many who feel it is at least worth the try. Between 2006 and 2015, there were 23 fatal crashes in Utah involving a BAC between 0.05 and 0.07 percent, according to information from the Utah Department of Public Safety.
“I have supported that for the totality of trying to reduce the number of deaths.” Tracy said. “If we can do that, I think it’s worth the effort.”