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NTSB wants to lower DUI Limit to 0.05

Have 2 Drinks, Drive & Go to Jail

 The NTSB has announced today (May 14, 2013) that they are seeking to lower the prohibited blood alcohol content for DUIs from 0.08 to 0.05 across the nation. Of course, they announced this on the anniversary of the worst drunk-driving accident in U.S. history. On May 14th, 1988 a drunk driver collided with a school bus full of children returning from a church-outing on Interstate 71 near Carrolton, Kentucky killing 24 children, three adults and injuring 34 others. The pickup driver had been arrested for DUI previously and had a blood alcohol level of 0.24. The law at that time was 0.10 and had no effect on the driver’s actions. Obviously, had this 0.05 legislation been the law, it would have had no effect on the outcome of this tragic event.

 Going hand-in-hand with this is the new definition of “accident” being used by the government. Now included in the term “accident” are new scenarios. If a person falls out of the bed of a non-moving pickup truck on the roadway and is injured–that is an “accident.” If a vehicle catches fire on the roadway–that is an “accident.”

 The NTSB claims that lowering the limit to 0.05 would save 500-800 lives per year, but they have no statistics to back that up. Aside from the fact that there is a 38% difference between 500 and 800 which calls their statistics into question all by itself, in order to make such a claim, they would have to prove that there were 500-800 lives lost as a result of drivers who were 0.05 to 0.079. That seems unlikely because their statistic relies upon “alcohol-related traffic fatalities” and not, necessarily, deaths caused by a drunk driver. What’s an “alcohol-related traffic fatality” you ask?

 An “alcohol-related traffic fatality” certainly includes a drunk driver who kills another person, but it also includes a sober driver who runs over and kills a drunken pedestrian. In other words, if anyone involved in a crash dies and if anyone else was drunk, it is an “alcohol-related traffic fatality.” Moreover, if a blood alcohol content is not measured by any chemical testing procedure, the police are allowed to “estimate” an alcohol concentration for reporting purposes. Of course, police -reporting statistics are used to determine how much of a problem DUIs are in their area. That, in turn, makes the police agency eligible for more federal and state dollars to combat the “problem.”

 We are moving closer and closer to prohibition. While there is no Constitutional Right to drive while intoxicated, there is a Constitutional premise which requires that laws be rationally related to the purpose for which they have been written. The proposed limit of 0.05 is not.

 To put this into perspective, I am a 180lb male. If I have two 6oz glasses of wine with dinner, I will exceed the proposed 0.05 level by 22%. This is simply another attack on the citizenry by the zealots called the MADD Mothers–the modern-day incarnation of the Women’s Christian Temperance Union. It will serve to do nothing but ruin the lives of law-abiding people and line the pockets of MADD when those convicted are sentenced to a punishment which includes attending the MADD Victim-Impact Panel.

 The NTSB has no power to set any prohibited level for any state, but the federal government has the ability to withhold highway funds for non-conforming states. Common wisdom back in the late 1990s was that the beverage and hospitality industry would never allow a move to 0.08, but we all know how that turned out. Our government does not pass laws in an attempt to expand the rights of the citizenry–only in a effort to restrict it.

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James Nesci

James Nesci

James Nesci often defends cases well into the .30 blood-alcohol range. He has caught more than one police officer lying during cross-examination and some police officers have even refused to grant pretrial interviews to him without a prosecutor or their own counsel present. He was one of the lead attorneys on the Intoximeters® RBT-IV breath-testing issue in Southern Arizona which resulted in the suppression of breath tests in over 7,000 cases and the removal of the RBT-IV from the streets of Arizona. He also spear-headed the effort to obtain the manufacturer’s source code and software for the CMI Intoxilyzer 8000. Although the source code was never obtained, he almost single-handedly ground 90% of all DUI prosecutions within the City of Tucson to a halt for nearly three years and obtained breath test suppressions and dismissals in hundreds of DUI cases. In addition to “traditional” DUI cases which involve alcohol, Mr. Nesci is a recognized expert on the defense of DUI/Drugs cases. Whether they be legal-over-the-counter-medications, prescription medications or illicit drugs, such DUI cases are far more complex and present cutting-edge issues for the courts. He is qualified to administer Standardized Field Sobriety Tests under National Highway Traffic Safety Administration & International Association of Chiefs of Police Guidelines. In 2006, he was appointed Regent of the National College for DUI Defense, Inc. He was formerly the chair of the Curriculum Committee for the NCDD. Currently, he is the State Delegate Coordinator, a member of the Amicus Committee, Treasurer of the NCDD, Member of the Executive Committee and served as an oral argument judge for the Board Certification Committee. Mr. Nesci is the author of Arizona DUI Defense: The Law & Practice, a legal treatise written for DUI defense attorneys and published by Lawyers and Judges Publishing Company (now in its third edition) []. In 1999 Mr. Nesci became a Sustaining Member of the National College for DUI Defense []. In 2001, he was Board Certified by the National College for DUI Defense, Inc., which is a is recognized by the American Bar Association. He is one of only three Board Certified attorneys in the State of Arizona, and one of less than fifty Board Certified attorneys in the nation (as of January, 2012). Mr. Nesci has lectured from coast-to-coast for such organizations as The University of Arizona James E. Rogers College of Law, Arizona State University College of Law Alumni Association, University of Mississippi CLE Department, South Texas College of Law CLE Department, Arkansas Association of Criminal Defense Lawyers, Arizona Attorneys for Criminal Justice, Arizona Public Defenders Association, California Attorneys for Criminal Justice, City of Phoenix Public Defender's Office, Colorado Criminal Defense Bar, Florida Association of Criminal Defense Lawyers, Indiana Public Defender’s Council, Kansas Association of Criminal Defense Lawyers, Louisiana Association of Criminal Defense Lawyers, Maricopa County Bar Association, Maricopa County Public Defender's Office, Maryland Criminal Defense Attorneys Association, the Mexican-American Bar Association at Loyola, the National Association of Criminal Defense Lawyers, the National College for DUI Defense, the Nebraska Criminal Defense Attorney’s Association, the Nevada State Bar Association, the New York State Bar Association, the Ohio Association of Criminal Defense Lawyers, the Pima County Bar Association, the Pima County Bar Association Young Lawyer’s Division, the Texas Criminal Defense Lawyers Association, the Tucson City Public Defender’s Office, the Tulare County (California) Public Defender’s Association, the Utah Criminal Defense Lawyers Association, and the Washington Foundation for Criminal Justice. He has taught seminars on the subjects of Ethics, 4th Amendment Law, Drug Recognition Evaluations (DUI-Drugs/DRE), Cross-Examination, Trial Tactics, Jury Selection, Field Sobriety Testing, Driving Behavior, Blood Alcohol Calculations, Opening & Closing Arguments, Source Code Litigation, Frye & Daubert Challenges, Intoxilyzer 8000 Operator’s Course, Headspace Gas Chromatography, Blood and Breath Testing. He has represented former Supremes lead singer Diana Ross and Tampa Bay Buccaneers' Tight-End Jerramy Stevens on Extreme DUI charges and fitness guru Richard Simmons on an assault charge. Mr. Nesci lives in Tucson with his wife and twin daughters. He is an honorably discharged veteran of the U.S. Navy where he spent much of his time working as an electrician in the Philadelphia Naval Shipyards. His interests are traveling, fine wines, vintage port and fast cars. He is an amateur race car driver, an accomplished mechanic, and a Corvette fanatic.

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