As of September 1, 1999, the presumptive level for intoxication in DWI
cases was reduced from .10 to.08 blood alcohol concentration. Barely five
months old, enough time has yet to pass to effectively gauge what effect
the tougher law will have on the number and prosecution of DWI/BWl cases.
Statistically speaking, we should expect an increase in the number of
cases filed. According to the Texas Department of Public Safety, about
84,570 arrests were made for DWI in 1998. From January through June of
1999, 43,626 arrests were made. Although DPS does not break down the
numbers in terms of how many people blew at which rate, a good guesstimate
is that about 6,000 cases fell between .08 and .10.
But, it is much too soon to quantitatively forecast any marked increase
in the number of filed DWI cases. To the contrary, it is hoped by those in
the law enforcement community that the reduction from .10 to .08 will have
a chilling effect on those persons who drink and then decide to drive a
motor vehicle or boat. A year from now, when statistics for the first year
of lower tolerance operation have been compiled and released by the DPS,
it will be both interesting and pertinent to determine whether the lowered
rate has made a difference in a Texas drivers decision to drink
excessively and then drive. A basic change in perception has been called
for by the Legislature’s action. Will this make a difference? Will it
make a person think twice while at his or her favorite watering hole? Only
time, and human nature, will tell. In the meantime, at least in Travis
County, any effect would have to be described in terms of a ripple rather
than a wave.
Since the Legislature has passed a 08 blood alcohol concentration for
DWI’s, I have seen little or no change in the number of DWI arrests in
Many Defense Attorneys, myself included, do not believe in the
infallibility of the Intoxilyzer. We do not consider it an accurate
reflection of intoxication at the time of driving. I personally am not of
the school that believes, “If the government bought it, it must be good!”
Will it have an effect DWI arrests or make our streets safer? I doubt
it. My guess is that fewer individuals will take the “breath test” due
to the fear of “failing” at the lower score. But, this probably has no
relation to public safety.
Let me make it clear that we all want safer streets and fewer
accidents. However, lowering the presumption for intoxication will
probably have little effect.
Although I hate to publicly agree with my friend John Lipscombe, I
think he’s right when he says “Time Will Tell.”
The Texas Legislature got serious about protecting the lives and health
of Texans when it lowered one of the definitions of intoxication from .10
blood alcohol concentration (BAC) to .08. Instead of just following the
lead of other states or acting only under a congressional mandate, Texas
took the lead in the battle against drunk driving by joining a handful of
progressive states that set a more reasonable standard of intoxication
when the .08 law went into effect on September 1, 1999.
Mothers Against Drunk Driving (MADD) has supported .08 bills during the
past several sessions of the legislature for two reasons:
- Everybody is too impaired to drive safely at .08 and
- Lowering the per se level of intoxication to .08 saves lives because
is deters drunk driving.
More than any other state in the nation, Texas stands to benefit the most
from a lower standard of intoxication. In 1998, Texas once again led the
nation in alcohol-involved traffic fatalities. What those statistics show
is very clear—Texas is, and has been, the worst, the most dangerous
state in the nation for alcohol-involved traffic deaths. Although Texas is
a distant second to California in population, registered vehicles, and
licensed drivers, we are a solid number one in alcohol-involved traffic
Texas isn’t just a little bit worse than any other state; we’re a
lot worse. Texas’ population of about 20 million is slightly less than
two-thirds of California’s population of over 30 million, but
alcohol-involved traffic deaths are almost one-third higher in Texas.
According to the National Highway Traffic Safety Administration (NHTSA),
1,792 people died in alcohol-related traffic crashes in Texas in 1998
while 1,324 people died in alcohol-involved traffic crashes in California.
Texas doesn’t fare any better compared to the rest of the United States.
Alcohol is a factor in fully half of all traffic fatalities in Texas while
38 percent of traffic fatalities in the nation involve alcohol.
The risk of being involved in a crash increases substantially above .08
BAC. Research by the Insurance Institute for Highway Safety shows that
drivers with BACs between .05 and .09 are 11 times more likely to die in a
single-vehicle crash, which many highway safety experts use as a synonym
for alcohol-involved crashes, than are sober drivers.
The .10 BAC limit in Texas was the highest in the industrialized world.
Great Britain, Canada, Australia, France, Germany, Greece, Portugal,
Ireland, Italy, Spain, Sweden, and other countries, where alcohol plays a
much bigger part in the culture and economy than in Texas, have all set
the illegal BAC at .08 or lower.
Benefits of .08—
Lowering the per se limit to .08 deters drunk driving, which reduces
alcohol-related traffic deaths and injuries. A study by Boston University
showed that even heavy drinkers, who account for a large percentage of
drunk driving arrests, are less likely to drink and drive where the BAC
limit has been lowered to .08. Lowering the BAC limit to .08 will make it
possible to convict seriously impaired drivers whose BAC levels had been
considered marginal because they were at or just over .10.
Alcohol-related traffic fatalities dropped significantly (12%) in
California in 1990 when .08 and an administrative license revocation law
went into effect. The decrease in alcohol-related fatalities occurred at
both high and low BAC levels. Lowering the illegal level of intoxication
to .08 BAC serves as a general deterrent to all drinking drivers, not just
social or moderate drinkers.
The new .08 BAC law will help prevent drunk driving because people will
become more cautions about drinking too much before they drive. In the
past the Legislature has been quite willing to enact tough laws that
punish drunk drivers after they have hurt or killed somebody. By lowering
the BAC limit to .08, the Legislature is getting at the heart of the drunk
driving problem by stopping people who may be tempted to drink and drive
before they hurt or kill themselves or somebody else.
The public supports legal BAC levels below .10. Surveys show most
people would not drive after consuming two or three drinks in an hour,
much less than the number of drinks most people would require to reach .08
A survey conducted by MADD, the Texas Medical Association and other
groups at the beginning of the last session of the legislature showed
strong support among Texas voters for lowering the illegal blood alcohol
level, especially when the respondents learned that safe driving skills
are impaired at .08 BAC.
Lowering the BAC limit to .08 sets the boundary at a point at which
critical driving skills are compromised. Laboratory and test track
research shows that almost every driver, regardless of experience, has
problems braking, steering, changing lanes, staying in one lane, judgment,
divided attention, speed control, and other important driving skills at
Objections to .08—
The .08 bill did not pass without opposition. Some of the opponents
claimed that lowering the per se level to .08 would burden already
overloaded courts with weak DWI cases. However the experience of other
states contradicts that claim. The .08 law in California had little impact
on the state’s judicial system. Although DWI arrests increased by nine
percent the year California enacted .08, during the five years after the
law went into effect, DWI arrests actually decreased by 20% compared to
the previous five years. The general deterrent effect of .08 became
evident. Most important, alcohol-related traffic deaths also dropped
DWI arrests did not climb in California and are not likely to climb in
Texas because other rules of enforcement still apply. Police must still
have reasonable suspicion to stop a driver and probable cause to make an
arrest and offer a test for alcohol regardless of what the illegal BAC is.
No increases have been reported in California in the proportion of
arrested drivers who request jury trials or appeal convictions. Over 75%
of the drinking drivers in fatal alcohol-involved crashes have never been
arrested for DWI. Lowering the legal BAC level to .08 saves lives because
it modifies the behavior of the vast majority of drivers who have never
been arrested for DWI, but who are involved in the vast majority of fatal
DWI crashes. If the only thing .08 accomplished was to increase DWI
arrests, fatalities would drop very little and MADD would have little
reason to support it.
Contrary to the fears expressed during the legislative session by some
elements of the hospitality and beverage industry, the new .08 BAC law
will not criminalize social drinking and will not stop anybody from having
a couple of beers with pizza after work or having a glass or two of wine
with dinner. Just before the Senate Committee on Criminal Justice was to
vote on the bill, the American Beverage Institute claimed the .08 bill
would make a 120 pound woman a criminal if she had just two glasses of
wine in two hours. However an enterprising reporter put that myth to rest
when he gave a 120 pound woman the two glasses of wine in two hours and
then measured her BAC. She was a .043, not even close to the new limit.
Other opponents said the .08 bill would not affect what they called the
real problem, drivers with very high BACs. Again, the studies show that
lowering the per se BAC to .08 deters drunk driving among drivers with
high and low BACs. The new law sends a message that Texas is getting
tougher on drunk driving and all potential drunk drivers get that message.
The new .08 law is not a silver bullet and it will not completely solve
Texas’ horrible drunk driving problem, but it can definitely make a
Passing the law was just the first step. The law won’t do any good if
it’s not publicized and vigorously enforced.