The National Transportation Safety Board (NTSB) has recently recommended, among their additional recommendations to curb impaired driving, that the legal limits for DWI be lowered from .08 to .05. There is very good recent article on the pros and cons of such a move in the Chicago Tribune.
The article cites a number of studies that have been directed at how to determine exactly what level of alcohol a driver is impaired. The article makes some interesting comparisons between impairment caused by sleepiness and distracted driving (mobile phone use and texting), and prescription drugs.
Though those comparisons are very interesting and raise a host of potential issues for both criminal and civil liability, this article will address the impact of such a change in New Mexico.
Impaired to the Slightest Degree?
In New Mexico, there is an “impaired to the slightest degree” standard. Under that standard, a driver can be convicted of DWI in New Mexico if his or her driving is impaired to the slightest degree by the use of alcohol or drugs.
What this means as a practical matter is that drivers are routinely charged in New Mexico, particularly in Albuquerque, for DWI when their alcohol levels are below–sometimes well below–the .08 standard.
Those charged with DWI at levels below .08 are often rightly shocked at the charges. After all, most have grown accustomed to .08 standard and many responsible drivers monitor their drinking accordingly. Many bars, restaurants, and individuals utilize breach alcohol testing devices to avoid driving while impaired.
A Standard is Needed in New Mexico: Impaired to the Slightest Degree
What does any of this discussion have to do with lowering the legal limits to .05? Though there is debate and evidence on both sides of the .05 standard, at least the .05 would establish a standard.
This is true even in New Mexico. How so? In New Mexico, a driver is presumed intoxicated at .08 or above. On the other hand, a driver is presumed sober at levels of .04 or below. This still leaves .041 to .049 for the impaired to the slightest degree standard.
In addition, it does not address the fact that drivers in New Mexico are on occasion charged at .04 or below. Presumably, and as a matter of public policy, it seems that with the implementation of a .05 standard in New Mexico, the impaired to the slightest degree standard would no longer be necessary or advisable.
At Least it‘s a Standard
Many researchers, and perfectly well intentioned advocates, will argue that .05 is too low. This may be true. However, at least it is a standard.
The impaired to the slightest degree standard is no standard at all. What does this mean? It defies definition. It basically leaves the decision to the individual officer. Though most officers are honest, allowing absolute discretion without firm guidelines has never been a good thing for the rights of citizens. It is no different here.
The new proposed .05 standard may be low, and may not even indicate impairment, but at least it would provide drivers with a specific standard to which they could adjust their drinking behavior. Predictability in the law is essential for the rights of citizens and due process. Without it, we are left to rely on the luck of the draw of the officer, the prosecutor, and the judge in any particular case.