NTSB Recommended Lowering Legal Limit to .05

In Texas, Driving While Intoxicated (DWI) charges can be proven based strictly on the alcohol concentration in a driver’s breath, urine or blood. This method of proving that a driver is legally intoxicated is called the “per se” limit. This definition of intoxication does not require that the driver be affected in any way by alcohol. The legal limit in Texas has been 0.08 since 1999. Many people, particularly DWI lawyers, have criticized the .08 level as being too strict. Texas implemented the .08 standard in DWI cases over 15 years ago.

In 2013 the National Transportation Safety Board (NTSB) recommended that states should drop the legal limit even lower than the current .08 limit to define when a driver has committed DWI. The recommended limit would be 0.05. This is the equivalent of about two stiff drinks in a normal sized person. Most commentators on the proposal believe the change would really be an effort to make any person scared to drive after having virtually anything to drink.

Almost three years after the NTSB recommendation, no U.S. state has lowered the limit to .05 for DWI/ DUI charges. Some states do have lesser charges for alcohol levels under .08, but these charges are distinguishable from DWI. Some states, including Texas, embraced the recommendation, but there is not a strong political movement to support the change. Some Texas lawmakers commented that prosecuting a .05 legal limit in Texas DWI cases would not be realistic.

Lawyers and common sense Texans realize that drivers who are driving under .08 but over .05 are not causing any particular numbers of casualties on Texas roads. The proposed change would not, in a legal sense, be closing any loopholes that are routinely getting people off of DWI charges. Drivers are not commonly arrested for DWI and later able to beat the cases by being between .05 and .08.

Another logistical problem a .05 limit would create is field sobriety test validation. Police are trained that sobriety exercises are valid to make DWI arrests at the .08 limit. The original laboratory experiments for the police exercises used a 0.10 BAC limit. If the DWI limit were lowered to .05, the departure from the alleged scientific research behind the DWI tests would be half the amount of alcohol. Only the best DWI lawyers keep up with scientific information as well as legal aspects of DWI defense.