The Limits of Zero Tolerance

March 1, 2006 By Greg Kitsock

With a tougher new standard that took effect in Minnesota in August, the anti-alcohol lobby has achieved its goal of establishing a national .08 BAC limit for drivers. But as long as you stay below .08, you’re safe, right?

You’d be naïve to think so.

Consider the case of Debra Bolton, as reported in the Oct. 12, 2005 Washington Post. Bolton was pulled over just after midnight for driving without headlights on. After admitting having a glass of wine with dinner, Bolton received a roadside sobriety test. The officer, believing he saw signs of intoxication, handcuffed Bolton and took her to the station, where she blew .03 on the Breathalyzer. Safely within the limit, right?

Right, but it didn’t matter. Bolton was charged with DUI anyway, and spent several months—and more than $2,000 in legal fees—getting the charges dropped.

The District of Columbia, like many states, has a loophole in the law that allows police to arrest drivers below the .08 limit if they show obvious signs of impairment. But most states set a level—typically .05— below which a person is presumed to be sober. Not DC. If you test positive for any measurable level of alcohol, you could (until recently) be prosecuted for DUI.

Driving Customers Away

The Post subsequently reported the case of a man pulled over for driving the wrong way on a one-way street. He blew an infinitesimal 0.0… but was arrested anyway because he admitted having a bottle of Heineken earlier in the evening. A judge threw out his case, but not before the unfortunate motorist had spent a night in jail.

The arresting officer in the Bolton incident, the perhaps inappropriately named Dennis Fair, defended his actions to the Post: “If you get behind the wheel of a car with any measurable amount of alcohol, you will be dealt with in DC… Anything above .01, we can arrest.”

But that’s not how Fair’s boss (DC Police Chief Charles Ramsey) interpreted the law. “He’s wrong if he’s saying that,” Ramsey was quoted. “It’s not coming from me and certainly no policy I’ve instituted.”

Not even the Northern Virginia chapter of Mothers Against Drunk Driving would defend DC’s zero tolerance policy. “It’s not MADD’s position that if you have a glass of wine, you shouldn’t get into a car,” stated chapter president Patrick O’Connor. Other critics charged that limited law-enforcement resources should be put to work collaring drivers who are repeat offenders or are seriously over the limit.

And this makes sense. The average BAC for drunk drivers killed in accidents is about 0.16. Even MADD, on its Web site, notes that about 80 percent of the drivers involved in alcohol-related accidents had BACs of 0.08 and above.

DC restaurateurs, meanwhile, complained that the District’s zero tolerance could drive customers into neighboring Maryland and Virginia, costing DC millions in tax revenues. One bar owner suggested that maybe we should test our elected officials daily for alcohol, and hold them to a 0.0 standard to make sure they remain “clearheaded and clear-thinking.”

The DC City Council passed a temporary measure setting .05 as the limit below which motorists would be presumed to be unimpaired. But they left a gray area (between .05 and .079 BAC), where you can be sent on your way—or hauled off to the city lock-up—solely at the discretion of the officer who pulls you over. As little as two standard drinks within the space of an hour can put you into this danger zone.

False Positives

The controversy over DC law comes at a time when some experts are questioning the validity of roadside sobriety tests. Failure to walk a straight line might be a sign of intoxication—or could indicate an inner-ear infection or bad ankle. Nystagmus (a jerky movement of the eyes associated with too much drinking) can also be the result of not getting enough sleep.

In the case of Ms. Bolton, Officer Fair claimed that he asked her to recite the alphabet from D to X and that she stopped at S. Bolton asserted that she had simply misheard the request—a not unreasonable explanation.

Spurgeon Cole, a forensic scientist at Clemson University in South Carolina, decided to conduct an experiment. He had 21 of his students—all completely sober—perform the walk-and-turn and one-leg-stand tests that police commonly employ in judging sobriety. Cole videotaped the students and showed the tapes to police officers. In 46 percent of the instances, the police misjudged the individuals as being impaired.

Indeed, the one-leg stand may involve having the subject balance on one leg, foot six inches off the ground, toe pointed forward, while counting from 1,001 until told to stop. Could you perform these acrobatics with enough precision to impress an officer, while standing on a dimly lit road with a flashlight shining in your face?

Until a baseline performance is established for sober individuals (of various ages and genders), sobriety tests “are in the same category as tarot cards,” Cole groused to the Post.