Legal woes over lower BAC limit
Alaska's new lower blood-alcohol limit for drivers has some in the legal community worried.
House Bill 132, which lowered the legal threshold of drunken driving from 0.10 to 0.08 BAC, went into place Saturday. The level is in keeping with a federal law tied to federal transportation funding.
The law also allows the state to convict repeat drunken-driving offenders of a felony if they have been convicted two or more times within 10 years of the offense, instead of five years as it was before.
Juneau defense attorney David Mallet said breath test machines, or intoximeters, used to measure blood-alcohol content have a margin of error that puts people at risk for arrests that may not be warranted.
The working tolerance, or margin of error, of a breath test is the 0.01 difference between the alcohol present in a person's blood stream and the level read by the test.
In other words, Mallet said, the breath test may read a person's blood-alcohol content at 0.08 when it is really 0.07 or 0.09. Mallet said at 0.07, a person is not feeling the physical effects of alcohol, thinks he or she can drive and may end up in jail.
But state criminologist Jeanne Swartz said though people handle alcohol differently, most likely would feel the effects of drinking alcohol at a level of 0.07.
Swartz said a breath test machine measures the number of grams of alcohol per 210 liters of air blown into it. This is a very small thing to try to measure, she said, and so there is the expectation of error.
She added breath tests are much more sophisticated than people may realize. She said testing machines are calibrated every 60 days and each has a sensor accounting for residual alcohol in the mouth that some believe causes false readings.
Disagreement comes from Dr. Michael Hlastala, a professor of physiology at the University of Washington who has studied the effects of alcohol on the body and the instruments used to measure it for 18 years. He said the sensors don't work because of the way they are programmed to register air. Further, he said the machines are not sophisticated enough to account for varying lung capacities, changes in body temperature and room temperature - all of which he said can affect readings in a breath test.
Assistant District Attorney David Brower said there are more factors to a drunken-driving arrest than the breath test, such as how the person was driving and the results of a police field sobriety test.
He said the working tolerance is almost a moot point since most drunken-driving cases he's seen in court involve people who measure well over 0.10. But, he said, people who measure lower still have penalties to face.
For a first-time offense, Brower said, there is a minimum $250 fine, three days in jail, a $250 incarceration fee and a $75 surcharge. He said penalties can vary depending on a person's criminal history. Penalties also get stiffer for repeat offenders and can result in a person losing his or her license permanently as well as higher fines, longer prison terms and extended probation.
Hlastala said with such penalties on the line, there is not enough data available to implement such a law.
"But there is sufficient social pressure to get people to stop drinking and driving," he said. "And I think a law like this will not have the effect legislators are looking for. It will have a negative one."
Melanie Plenda can be reached at mplenda@juneauempire.com.