By Darren Smith, Weekend Contributor
Utah Legislator Greg Hughes is proposing a law he believes will address successfully some of the DUI incidents that happen within the state. The proposal is in the working stage and has been under several revisions but in essence the device would be installed in bars under incentives from the state so that bar patrons may use the device to test their sobriety levels so that they may make informed choices on whether to drive or not. The measure includes an immunity from civil and criminal liability on bar owners if a customer’s breath alcohol level is high and the customer drives away and the data would not be available to law enforcement to provide a hesitation free attraction.
While the goal of the device is certainly laudable, could the devices be counter productive as indicated by experience with law enforcement breath test devices and their shortcomings?
The case, statutory, and administrative law governing breath test devices is expansive and has changed much over time due to advancements in the underlying science, innovation and court scrutiny. The public at large is unaware of these nuances and their own metabolic process in how alcohol is absorbed and eliminated in their system. Since these devices are standalone and, likely, to be unmanaged by properly trained technicians, false and improper readings are likely to happen. There is also the question on whether the devices will be calibrated in the time frame required and if the technology is reasonably accurate and able to detect false readings and errors.
The usage of these devices presents many opportunities for improper readings based upon use.
Many evidentiary breath test devices employ two standards for which breath samples are measured against and for which the device tests itself to make a proper reading. The first is an internal device such as a quarts crystal that is used as a standard to check if the device is functioning within a standard range of operation. The second is often what is referred to as an external standard. The external standard is a jar containing a certified concentration of alcohol maintained at precise temperature which is again used as an internal check. The external standard must be replaced often and can provide false readings if the mechanics are not operating properly.
If a bar device lacks the same standard of device accuracy it will lead to false assumptions as described in the next section. The greater the device is out of calibration the more magnified the inaccuracy of the readings might be. Moreover any blows or damage inflicted on the machine might not be apparent yet can cause problems with accuracy later.
The willingness of the bar to pay in terms of money and attention granted for proper maintenance of the device might be questionable as well.
A problem with alcohol remaining in the mouth is that it can influence the breath alcohol reading greatly. Standard procedure in many jurisdictions is to have a period of at least fifteen minutes for any alcohol to evaporate from an empty mouth. In order to satisfy this requirement a patron would have to stop drinking and wait fifteen minutes before obtaining a reading from the device. While some might argue a higher than expected breath alcohol reading might act as a deterrence it could lead to a situation where patrons drink one glass of beer then use the device to test it and retain a very high reading they will believe the device is faulty or not credible.
Another issue might be with determining incorrectly the proper person to drive home with designated drivers. A patron who has just finished a drink is going to produce a higher reading than a patron close to the legal intoxication limit who has not consumed alcohol for half an hour. This situation might lead to a truly more intoxicated driver being selected to drive a group of patrons home.
Rising Alcohol Levels
Assuming the calibration and mouth alcohol procedures are properly adhered to there is the strong likelihood of a patron who takes the breath test and scores below the statutory minimum presumptive blood alcohol level (BAC) of .08, but waits consumed much alcohol prior to the test, might in-fact become significantly higher than the limit while driving home. This is due to the time in which the human body metabolizes the alcohol in the digestive system. The BAC reading is generally the result at the time of the test and a singular test does not determine if the alcohol level in the person is rising or falling. It is entirely feasible a patron can test at a .07 BAC level and later be at a .11 some time later.
The flow of the use of the breath test device is such that the expectation of the device is to provide a reading of the patron’s breath just prior to their departure from the bar. This process adds to the rising alcohol level problem. One way to address this problem is to take a secondary test five or ten minutes after the first to determine if BAC levels are rising or falling. While this is not an exact test it does provide more information. However since it could likely be the case where a fee is charged for the device’s use to offset costs to the bar it is unlikely a patron would choose this option.
Overconfidence of the Device’s Effectiveness
If a patron becomes accustomed to using the device they might use the device to measure their alcohol consumption and to gauge the BAC level that might result from this. The confidence might be reinforced despite poor practices and improper calibration. In this case if a person believes the device reading is always true they might be provided with false assumptions that a certain consumption of alcoholic beverages is safe and might rely on that assumption later when deciding whether or not to drive. They could believe they are able to drive safely but in-fact might be quite hazardous on the road.
Also what the public might not understand is that safety is not a binary issue with BAC levels, that is under .08 BAC is safe and over .08 is not. The “state alcohol limit” is what is referred to as a Presumptive Level, where it is presumed that a BAC level of .08 is considered intoxicated by law for the purposes of DUI prosecution. Drivers in most jurisdictions may be arrested for BAC levels below .08 if the state can prove the driver’s was operating a motor vehicle while impaired. Some individuals are so affected by alcohol their symptoms of alcohol use might be more magnified. Also it is not an absolute factor in that BAC level is a continuum for which driving ability decreases as alcohol level rises. A .07 driver is going to make more mistakes than a .02 driver. The expectation of being below .08 being safe is foolish.
It is certainly meritorious for Representative Hughes and the State of Utah trying to find novel ways to address the deaths and injuries caused by drunk driving and he deserves praise in his efforts, but it would be important to weigh the shortcomings in such a system to determine what might be best for the safety of driver’s on Utah’s highways.
Cocktail Photo Credit: Nicolai Schäder
By Darren Smith
The views expressed in this posting are the author’s alone and not those of the blog, the host, or other weekend bloggers. As an open forum, weekend bloggers post independently without pre-approval or review. Content and any displays or art are solely their decision and responsibility.