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.
Improper Calibration
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.
Mouth Alcohol
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.
Sources:
Komo News
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.
A big problem with this idea is human nature – particularly drunken human nature. When I was in school in Sacramento, a local watering hole I frequented put one of these in.
They removed it within a month.
People were actually having contests to see who could register the highest. Oops.
Alcohol… how quaint and not fun it is. I suppose… if one has no brains, nor ability, nor looks, nor legs, nor house, been stuck in WI, etc….
just for the record, if you’re ever driving down the highway and the reflectors in the middle of the road are red, turn around.
Dredd, BINGO!!
Bone up on parts of the Constitution? That needs to be sent to Justices Alito and Scalia.
Laws and Constitutionality have little meaning today where State Lawmakers run amok with State and Federal Constitutions. Women’s rights under Roe v Wade have been neutered in many States—not by reversing a Supreme Court decision but by passing laws that have the same effect.
If someone mistakenly goes through airport security with a handgun in a purse or briefcase that weapon is seized, never to be returned. What if that handgun was owned by another person….is that not the same as my argument of confiscating cars? Or does the dollar amount play a role in Article 1 Section 10 of the US Constitution?
My point was that, if you own the lien on my car, it wouldn’t be right for you to lose your investment just because I drove drunk and got caught.
Wayne
Good idea, as a poster above mentioned drunks kill more people than guns in this country.
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And drunks are in third place.
First place is distraction due to cell phones being used by sober people.
“Instead of confiscating guns, how about confiscating cars driven by drunks—-doesn’t make a difference who the owner of the car is, a bank or a friend.”
Wayne, bone up on article 1 section 10 of the US Constitution. So far, the courts have not sided with invalidating contracts.
Good idea, as a poster above mentioned drunks kill more people than guns in this country.
Instead of confiscating guns, how about confiscating cars driven by drunks—-doesn’t make a difference who the owner of the car is, a bank or a friend. You get caught drinking and driving that car now belongs to the State and sold at auction.
Make no mistake about it, all this talk about new gun control laws has the ultimate goal of confiscation—one step at a time. So let’s confiscate the cars being driven by drunks regardless of the vehicle’s legal owner.
I think that this is crazy and that it will at some point be used to supplement a conviction of a person drinking and driving….. It may be immune from criminal prosecution at this time but certainly not civil…. Seems like a way to escape around the dram shop act….. Immunity for liability to bar for knowingly serving someone visibly impaired…..
I think that voluntary use of breathalyzers in bars might be useful, but I am not sure it will have any serious effect in lowering DUI’s.
BillH, I’ve been to parties where there were breathalyzers. That is indeed the dynamic.
I can see it now — a bunch of drunks in the bar deciding on a contest to see who can blow the highest BAC. A winner with a number over .10 wins double.
I live in the alcoholic state of Wi. I often speak about the horrible toll taken on families and communities. That said, I have spent some time in Utah and they are the opposite extreme. I suppose if forced to choose, I would go w/ the Utah culture regarding alcohol. Ideologues and our duopoly like all to think that’s our only two choices. Well, it’s not. A view somewhere in the middle is common sense. Unfortunately, common sense is on the endangered species list.
I bought a small “keychain” breathalyzer several years ago on impulse when I had an expiring $25.00 Sharper Image coupon. My friends and I had fun with it but we concluded that it always read low. We would calculate what our BA should be based on our weight and gender after drinking beer or wine with a known alcohol content. (Yes, we’re nerds.) We decided it was useful only if we decided not to drive with a reading above .04.
Breathalyzers in bars could work if customers used the same precaution, but we know they won’t. They would already be at least tipsy before they used it.
Utah would be better off if they used their resources to promote the use of designated drivers and shuttle services.
Mission-creep always happens and should be factored in: Could that data be exploited and used for discrimination in future employment, insurance rates, etc. – even if rates are below the legal limit?
Maybe an employer doesn’t want to hire someone that drinks anything at all or a citizen receives higher insurance rates, even if they never exceed the legal limit. If the data is stored and can be obtained (with or without a judicial subpoena). Mission-creep always happens!
This idea has been around for decades. On the surface, it appears to be a fine idea. But as pointed out, it has its shortcomings. Might be worth a try, then again it might not. Let’s keep an eye out. Drunk driving kills more innocent people that does the second amendment.
I’ve heard that this has been tried before. There was a major problem – people who were getting drunk treated the breathalyser as a challenge.
Not a bad idea.
I bet the cab companies are lobbying for it.
Isn’t the bar tab a better breathalyzer? I mean, if you can read the breathalyzer you can certainly read the bar tab?
Darren
i can honestly say that almost every time i ever left a bar i was too drunk to drive. if i wasn’t i wouldn’t be leaving.
You do not need bars in that state.