Amicus lector
Is a .05 blood alcohol limit a possibility in South Dakota?

Most people assume driving under the influence means driving while impaired.

That’s more or less true. But it’s also true that some people who drink a six-pack end up further “under the influence” than others might.

This is thorny territory, I know, and I’m not trying to making light of the issue. We all know that drinking and driving is deadly and depressingly common. Nearly everyone has been touched by the issue.

But different people do have different levels of tolerance to alcohol, for a lot of different reasons. People do have different interpretations of what impairment means, even if those opinions are usually based on instinct and not science.

Those two truths - that people react differently to alcohol and people don’t always agree about what it means to be too drunk to drive - underpin the debate about where we set the presumptive level of intoxication for DUIs.

That debate is set to heat up again. The National Transportation Safety Board recommended this week that states drop the legal limit of alcohol in the blood to .05 percent from the current standard of .08.

NTSB Chair Deborah Hersman said during a Tuesday press conference that there were 1,000 alcohol-related fatalities in 2011 where the driver had a BAC of .05-.07.

She also said that Australia and several countries in Europe saw the number of drunk driving fatalities drop by five to 15 percent after switching from .08 to a .05.

“On this issue, we are woefully behind our international counterparts,” Hersman said.

She also said this:

“We know that drivers are significantly impaired at .05,” Hersman said. “There is no debate about that.” 

Here’s one more:

“Impairment begins with that first drink,” she said, although she did say “most people” can have a glass of wine with dinner and still be okay to drive.

Where we decide to put the BAC limit matters a lot in terms of how the justice system handles DUIs, and not only because drunken driving is so prevalent.

In South Dakota, for example, there are two basic ways for prosecutors to prove someone guilty of the crime of DUI:

1. They can prove that a driver was under the influence by presenting evidence that the driver, at the time of the arrest, was impaired. That could include field sobriety test results that show the person couldn’t perform basic tasks like walking a straight line, tracking a pen with their eyes, holding their arms out and touching their nose with one hand, etc. The cruddy driving that got the person pulled over in the first place also fits here (if cruddy driving was the reason for the stop, of course). For this one, it doesn’t matter what your BAC is.

2. They can prove that the driver had .08 or more of alcohol in their blood at the time of the arrest. If they can do that, they theoretically don’t need to prove anything else.

At this point, I haven’t heard any prominent South Dakota official jump at the chance to support the .05 idea. A few have said it’s too early to say, but that they might be open to the idea if it were shown to improve public safety, but I haven’t heard any ringing endorsements.

Rep. Bernie Hunhoff, D-Yankton, Sen. Jason Frerichs, D-Wilmot and House Transportation Chair Mike Verchio, R-Hill City all said they don’t see such a change as a real possibility in South Dakota in the near future. They each mentioned, separately, that a .05 limit is a little too close to criminalizing the act of driving after drinking a beer or two. Terry Woster, spokesman for the Highway Patrol, said it wouldn’t be appropriate to comment on the policy proposals.

Minnehaha County State’s Attorney Aaron McGowan offered this:

"My primary responsibility is public safety and I will always support safer highways.  However, any changes must be evidence-based and I’m not willing to place additional restrictions on our citizens without compelling proof.”

Here’s Attorney General Marty Jackley’s response:

"The issue of legal alcohol limits is ultimately for our legislature to decide.  As Attorney General, I always make myself available to the Legislature to provide input and advice, and in anticipation of the legislative discussion I have begun and will continue discussing the NTSB’s recommendation with Sheriffs, Chiefs, State’s Attorneys and victim groups.  As a consideration and consistent with NTSB’s recommendation, South Dakota law does already protect the public by holding an impaired driver below .08 accountable for DUI.  See SDCL 32-23-1(2) which provides:  ’No person may drive or be in actual physical control of any vehicle while (2) Under the influence of an alcoholic beverage, marijuana, or any controlled drug or substance not obtained pursuant to a valid prescription, or any combination of an alcoholic beverage, marijuana, or such controlled drug or substance.’”

My guess is this discussion will evolve. The .05 question, after all, is a continuation of a debate we’ve been having in this country for 40-odd years: Where do we set the bar for alcohol in the blood? How much alcohol can a person drink before we say “you no longer get to decide that you’re okay to drive.”

The limit was .15 in the 1970s, and Judge Larry Long told me once that he sometimes struggled as a prosecutor to get jury convictions for .15 back then.

Now, a .17 BAC is considered high enough for judges to require the 24/7 sobriety program as a bond condition, even on a first offense.

We all know people who think they’re okay after a few drinks. We all know people who have a higher tolerance and seem unaffected after drinking enough to lay another person out. Some of us have heard stories about Uncle Joe So-And-So who drank 12 beers a night at Yakadee Smack’s Downtown Pub for 20 years and drove home all the time but never hurt anyone.

Setting the bar at a certain level is society’s way of saying it doesn’t matter how lucky Mr. So-And-So has been. Once a person gets X amount of alcohol in their system, the science says it’s too risky for that person to get behind the wheel.

Let’s put it this way: It’s conceivable that there are people out there who, under the right circumstances, could drive away from a place at midnight with no headlights on and still make it home without a wreck. That doesn’t mean the person gets a pass on a law that says you need to drive with your headlights on after hours. 

So that’s what the debate is about on a broader level, but changes to the legal limit have serious, real-world consequences in court.

Here’s one reason why: It takes a while for alcohol to be absorbed into the blood stream. That means if a person slams a beer on their way out of the bar then gets pulled over a block away, their BAC will have increased slightly by the time jailers take a blood draw at 9 or 9:30 p.m.

If there isn’t a lot of concrete proof the person is impaired (they refuse to do or somehow pass the field sobriety tests), a defense lawyer can use the blood test results to argue that their client wasn’t at the legal limit when they were in actual physical control of their vehicle. Juries might go for that argument, and prosecutors would generally rather have a conviction than a loss at trial.

In Minnehaha County, people who test at .08 or lower regularly have their charges reduced to reckless or careless driving for that reason. If you test at a .10 – which was the legal limit in the state until 2002 – you’ll probably still get the DUI charge.

In 2012, according to the State’s Attorney’s Office, 135 of the 1,978 DUI cases filed resulted in a reduction to a solely due to a low blood test. Of those, 130 involved drivers who tested between .05 and .09.

Does that mean those drivers would have gotten a DUI if the limit was .05? It’s impossible to speculate. No one knows how a South Dakota jury would react to a .05 presumptive level, and the way juries react has a lot to do with the kind of plea deal is offered in one county or the next.

So where do we go from here? Who knows. It’s certainly possible that there won’t be serious discussion about a change unless federal highway funding is tied to it, and there’s historical precedent for that. South Dakota didn’t change the law to .08 until 2002, though a bill was offered nearly a dozen times before that. The state was set to lose funding the following year.

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