In 2000, federal highway legislation shoved mandatory criminalization of a 0.08 blood alcohol level in DWI cases down the states’ throats under the penalty of otherwise losing federal highway funding.

A 0.08 blood alcohol level is so easy to reach that anybody who drives after consuming alcohol is a potential victim of the draconian drunk driving laws.

Setting a per se DWI guilt threshold is problematic because (1) a 0.08 blood alcohol level in a person’s body does not automatically correlate to driving impairment, and (2) fundamental fairness is thrown out the window by criminalizing driving with such a low blood alcohol level that plenty of people will not even feel any alcohol effects with a blood alcohol level as low as 0.08. To boot, breath testing — and worse, urine testing — for blood alcohol levels is riddled with error risks.  Moreover, while generally more accurate when conducted correctly, blood testing for alcohol levels is not free of error risks, either.

Recently, the National Transportation Safety Board — seemingly arbitrarily — encouraged states to reduce the criminalized blood alcohol level threshold to 0.05 or even lower: “When it comes to alcohol use, we know that impairment begins before a person’s BAC reaches 0.08 percent, the current legal limit in the United States. In fact, by the time it reaches that level, the risk of a fatal crash has more than doubled. That is why states should lower BAC levels to 0.05— or even lower.”

What the NTSB does not acknowledge in its urging 0.05 threshold is that one’s blood alcohol level at the time of testing can be either higher, lower, or the same as the blood alcohol level at the time that a police officer stops a driver, due to alcohol absorption and dissipation factors. That is why I quickly felt elevated alcohol effects way back when after drinking five beers in close succession and then running up a steep hill. Unfortunately, plenty of judges and jurors are not going to accept that blood alcohol levels can keep rising between driving and testing, even if an expert witness testifies. Moreover, at least some states’ statutes rob DWI defendants of the rising alcohol level defense by simply criminalizing blood alcohol levels of 0.08 or higher at the time of testing, which makes such laws appear criminal in themselves.

Beyond the criminalization of driving with a 0.08 blood alcohol level, where I practice the law allows for a DWI conviction even with a BAC reading below 0.08 and even where a breath test is not taken, when the judge or jury finds beyond a reasonable doubt that alcohol adversely impaired one’s behavior, as more specifically defined in the particular jurisdiction’s statutory law and caselaw.

Additionally, Virginia — certainly not alone — criminalizes certain designated levels of certain drugs in the bloodstream, and criminalizes driving while impaired by drugs, once again under the flawed legal scheme discussed herein that allows for too many people to be convicted for DWI with alcohol than should be allowed to be convicted. Va. Code § 18.2-266.

Of course the best way to avoid a DWI conviction is to not drive at all within twenty-four hours after consuming alcohol, but even that approach will not always work, because police might still claim smelling alcohol on a suspect who has consumed no alcohol even for months, because other odors on the breath and body can be mistaken for alcohol, because people’s own bodies can produce alcohol, and because some people simply look less sober than others even when they have not consumed alcohol nor any drugs for months.

I talk from experience about the extent to which a driver should reduce the risk of being prosecuted for DWI, fortunately never having been charged with any law violations while driving after drinking. I have gone from only driving after determining I was “buzzed” at most (do not drive if you feel buzzed, due to the low legal thresholds that allow a DWI convictino), to not driving after having had more than one drink, to not drinking alcohol at all. After routinely driving after drinking in college when I did not feel drunk, I concluded during my first year of law school that as a future lawyer, it did not seem a good idea for me to risk a DWI prosecution by driving after consuming more than a bottle of beer or a glass of wine, if even that much. Thereafter, I rarely consumed more than a total of four to ten alcoholic drinks in a given year. Over ten years ago, I simply stopped consuming alcohol, finding that it no longer thrills me, risks drinking alcohol using animal products in the manufacturing process when I am a vegetarian for animal compassion reasons (wine routinely is fined through animal-derived gelatin, and plenty of beer uses fish ingredients in the manufacturing process), and does nothing for my waistline.

Calling DWI laws drunk driving laws is disingenuous, because the blood alcohol content threshold and impairment levels criminalized by the DWI assure too many convictions of people who were safe enough to drive in the first place

It is one thing to impose civil monetary sanctions — or even adverse civil sanctions against driving privileges — on people who drive with a blood alcohol level over a designate threshold or with an adverse correlation between their alcohol consumption and driving safety. It is an entirely different, and unjust, state of affairs automatically to criminalize driving with a 0.08 blood alcohol level and to criminalize a small correlation between alcohol consumption and mental and bodily function. Moreover, such low criminal law tolerance for driving after drinking makes a farce of the more sensible approach of criminalizing drunk driving proven beyond a reasonable doubt in a particular defendant’s case. Not only can the criminal sanctions for DWI be disproporationately severe, but the collateral consequences can be brutal to people’s employment, security clearances, health care licenses and immigration status.

Consequently, as with all jailable prosecutions, when charged with DWI, it is essential to obtain a qualified criminal defense lawyer and to fully defend against such prosecutions.