The DUI Breathalizer...Man vs Machine.

Posted by Leslie ShumakeFeb 01, 20220 Comments

     In almost every courtroom in North Mississippi, someone who blows into the Intoxilyzer 8000 (the Breathalyzer) and registers .08 or higher puts themselves behind the 8 Ball when trying to defend themselves in a DUI charge.   You are presumed to be illegally operating a vehicle under the influence of alcohol if you register, and the opportunities to attack the machine by attorneys in getting a "not guilty" verdict are few and far between.   However, if you refuse to blow into the machine, under what's known as "Implied Consent", you driver's license will be automatically suspended for a period of time, regardless of whether you are later found not guilty of the charge. 

     In regard to that, it may be helpful to examine what a .08 reading means and how the law arrived at using blood alcohol levels to determine drunk driving.   The science behind the machine is a little complicated, and will not be addressed in this blog.  

      A version of the modern "Breathalyzer" has been around since the mid-century, and is now accepted all over the United States as the basis for a DUI charge and conviction.  In fact, the term "Breathalyzer" has become a part of our everyday language and I venture to say that virtually everyone in the country who is of driving age knows the term.    Prior to it's acceptance and use, the sole determination of a DUI in most cases was the observations of the charging officer.   The observations of the officer should still be used in the prosecution of a DUI, but in our experience the breath test is still what matters most, if it is available. 

     A .08 reading is now the standard in all fifty (50) states, which is the Federal Level for most adult drivers.  Those with commercial driver's licenses operate under a different set of rules, and for those under the age of twenty one (21), the standard in Mississippi is .02.  What has always been interesting to our law firm is that many people assume that an .08 reading has always been the standard when, in fact, it has not.  It seems a little strange to ponder that at one point the per se (presumed to be illegal)  standard of guilt of DUI was .15, almost twice what is now required.   It later went down to .10, and everyone decided that this reading was really the proper one for DUI.  Then, in the 1990s, .08 became the standard.  

     The reasons the .08 standard was adopted are varied.  A 2001 report by the NHSTA (National Highway Traffic Safety Administration) stated: 

     1.  There is a significant decrease in a driver's ability to brake, steer, change lanes, use judgment, and concentrate on the road at .08.

     2.  The risk of being involved in a crash increases rapidly once a driver reaches the 0.8 level.

     3.  Lowering the per se limit from .10 to .08 reduced traffic fatalities by 12% to 18% in the United States

     4.  A majority of U. S. Citizens supported lowering the legal limit and understood the purpose of the same.

    That report also pointed out that many other industrialized nations already had a National DUI standard of .08, and some, even lower.  For example, it found that Austria, Switzerland, Canada and England had a .08 standard for many years before the U. S. did. And, that Australia, France and Germany had a .05 standard.  The lowest country mentioned at the time was Sweden, with a reading of .02 being the limit.    

     Again, this brings us back to the following scenario which we debate in our office:

     John Does goes for a drive in Mississippi, is pulled over for speeding, and agrees to take a Breathalyzer test.   Mr. Doe registers .05, so he is not presumed to be illegally impaired to drive.  He wins the lottery later that same day and takes a private jet to Europe to celebrate.  He rents a car, gets pulled over, tests .05 there, and is arrested and presumed to be a drunk driver.   So, is the science different in other countries?  Is science even a reason for the machine, as many believe? 

     We think the answer lies in safety factors, as well as the political and social issues involving DUI fatalities.  There is pressure on the states and police departments throughout the country to keep the roads safe and reduce fatalities.  In addition, if the states to not comply with the .08 standard they will lose federal funding, always a big stick.  I think there is no doubt that we are all safer from the adoption of the .08 standard.  Again, it is odd that a 20 years old is presumed illegally impaired to drive if he or she registers .02 at age 20, yet, if that same person turns 21 the next day, registering .02, is not presumed illegally impaired. 

     Safety is the result achieved, but perhaps not because it is a scientific machine.