You hear police, investigators, prosecutors, defense attorneys, judges and probation officers all asking, "What was his BAC? What was his BAC?"
B.A.C., or blood-alcohol concentration, has become more and more important in determining the effect of alcohol on the nervous system of drivers, boaters, flyers and others engaged in activities where alcohol impairment affects performance.
All the 50 states differ somewhat in the details. In Washington, D.C. there are several significant figures, but the salient fact is that over the past thirty years people concerned about BAC and driving have given significance to lower and lower BAC levels, until now we're at zero-tolerance here.
Before 1982 the police wouldn't give a citation unless one's BAC was about .12 or .13%. Even if it were higher than that, if you were only a block or two from home, they might have said, "Please drive home carefully and don't drive any more tonight."
But - no more. In 1982 an important law was passed which changed all that. A BAC level of .05% was made prima facie proof that one is "under the influence" of alcohol. Prima facie proof is proof which makes out a case for the prosecution and will support a conviction all by itself. If you go to trial and it's proved that you were behind the wheel of a vehicle with a BAC of .05%, and the trial stops there, you can be convicted just on that evidence. You can't go to the Court of Appeals and claim "insufficient evidence - just one little .05% test!" - this statute says that .05% is sufficient.
But you can contest it. You can bring in a witness to say he was with you at that time and that you were OK. If you can persuade a judge to have a doubt - a "reasonable doubt" - about your impairment, you might win.
Once it gets up to .08%, you can't argue. Someone thought of a wonderful way to make drunk-driving prosecutions easier: "Why do we always have to prove that a driver is intoxicated, or under the influence, or impaired, or drunk? Why don't we make it an offense just to have a certain BAC level?" And that was done in 1982. Having a .10% BAC behind the wheel was made an offense - a "per se" = automatically guilty - offense. A few years later this was lowered to .08%.
But - that's only the beginning. Until a few years ago, the D.C. Code provided that a .04% BAC was in your favor - tended to show you were not impaired.
The City Council repealed that provision and now we're seeing people given a police citation who blow .04, .03, .02 percent. Whether they're eventually prosecuted or not depends on other indicia of intoxication. If they show perfect coordination they still have to go to court, but their case may be "no-papered," or voluntarily dismissed up front by the city attorney ("Corporation Counsel").
The other day I saw the lowest foundation for a citation I've ever seen: A man blew .00% on the Intoxilyzer, but police smelled alcohol on him - so they held him for a half-hour and he took another test, blowing .01%. He received a citation.
Now, unless there is other evidence of impairment, that case will probably be no-papered, but to clear things up, that defendant will have to file a motion to seal the record in Superior Court, taking the position that no offense occurred (not that the case was dismissed for want of prosecution, not that he was given a plea bargain, not that he completed pretrial diversion - but that no offense occurred).
He'll also have to file a motion at DMV to have the arrest line deleted from his D.C. driver record. He'll have to pay a lawyer to do these things - just because he blew a .01 on one test!
Is that the end? No. There's a new statute affecting people under 21 years of age providing for a DWI conviction if their blood contains "any measurable amount" of alcohol.
And if you happen to need a CDL (Commercial Drivers License), the D.C. Code mandates (forces) your disqualification for that license if your BAC is .04%.
"The legal limit in D.C. is .08%"
N O T T R U E. But the Washington Post says so - even the D.C. Metropolitan Police say so. The police have vans they use for their sobriety checkpoints. Painted in black on the back of the van is:
.05
-It's the
LAW!
It's not "THE" law - it's one law.
Note: The first law I mentioned above, making .05% prima facie proof that one is under the influence, has been on the books for twenty-one years and is still in effect! So you can see how terribly misleading "the legal limit is .08" is.
The Significant BAC Figures
These apply in Washington, DC only
.01% - can get you arrested
.04% - forces DMV to disqualify you for a Commercial Driver's License
.05% - will support a DUI conviction -it is prima facie proof you're under the influence
.08% - a complete violation by itself.
.10% - for many Certified Addictions Counselors this is a rough benchmark in evaluating your relation to the use of alcohol. If your BAC isn't above .10 and you don't have other alarming symptoms, you may escape with just the educational (objective) component of a program. If it's much above .10, the counselor may suspect you have the beginnings of an unhealthy tolerance for alcohol. He may want to get inside your head to find out more subjective indications.
.20% - this is the maximum BAC for admission into the Corporation Counsel's pretrial diversion program. If one test is .21%, you're out of diversion.
.20% - this is the level at which mandatory jail time applies if you're convicted of DWI - even a first conviction. It's essential, if your BAC is .20% to .25%, to obtain a breakdown to OWI in order to escape five days of jail time, which cannot be suspended by the court.
.26% - this BAC level mandates ten days in jail, which cannot be suspended, even for a first DWI conviction - but you escape this if you get a breakdown to OWI.
* * * * * * * * *
. . . And finally - for many years, of course, people have been convicted of DUI without any chemical tests at all. Our Court of Appeals has held that one is guilty of DUI if one's ability to operate a vehicle safely, with normal reflexes and speed of reaction, is "perceptibly," "noticeably," less "to the slightest degree" than it would have been if you had consumed no alcohol.
Copyright 2003 John H. Spaulding
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