In 2017, Utah became the first (and so far, the only) state to pass legislation to lower the per se legal limit from .08% to .05%. The Utah law, however, did not become effective until December 30, 2018, just before New Year’s Eve. Was the reduction effective? According to a National Highway Traffic Safety Administration press release, in 2019, the first year under the lower legal limit, Utah’s fatal crash rate dropped by 19.8% and the fatality rate decreased by 18.3%. “NHTSA also found none of the economic impacts that had been predicted with the change from .08% to .05%. Alcohol-impaired-driving arrests did not climb sharply after the law went into effect, as some had feared.”
A full report evaluating Utah’s .05% law may be downloaded here. The report stated in part, “In comparison, the rest of the United States showed a 5.6% crash rate reduction and 5.9% fatality rate reduction during the same time period.”
In February, 2025, Hawaii is now considering a similar reduction in per se blood alcohol levels. Of course, there are good arguments on both sides of the issue to reduce the per se level from .08%, and data to support each side. Some of these arguments are noted in the Utah evaluation report referred to above.
How does this change affect DUI defense lawyers? It is important for the public to recognize that DUI defense lawyers are not necessarily in favor of maintaining a higher blood alcohol per se level. Many, in fact, believe that reducing the per se level will increase their business.
DUI defense lawyers get a bad reputation when defending their clients. These lawyers concentrate their efforts to ensure that the citizens accused of DUI, OUI, OWI, and related crimes are prosecuted within the confines of the applicable laws and are afforded the constitutional protections guaranteed to all in the United States. They are doing their jobs, just like the officers do their jobs. In fact, often our job is limited to presenting to the court a variety of factors to mitigate any punishment for committing such crimes.
Too often, people are stopped and eventually arrested and convicted for crimes they did not commit. Without criminal defense lawyers who ethically and zealously defend those who are accused of a crime, the criminal justice system would fall into anarchy. As an additional benefit, most criminal defense lawyers will counsel their clients and suggest treatment to overcome medical, psychological and societal problems in order to reduce the chances that they will re-offend. DUI/Drug courts are proving to be effective and are becoming more popular across the country, combining substance abuse treatment with imposed punishment.
Obviously, more work must be done to reduce needless deaths, injuries and property damage. Incarceration should be reserved for only the worst offenders. Better methods of detection of impairment must be developed. Maybe reducing the per se blood alcohol level is the solution. Only time will tell. As all in the criminal justice system work to reduce the incidents of this crime in our society, let’s all try to be more open-minded in creating a long-lasting solution.
About the Author: Steven Oberman has been licensed in Tennessee since 1980, and successfully defended over 2,500 DUI defendants. Steve was the first lawyer in Tennessee to be Board Certified as a DUI Defense Specialist by the National College for DUI Defense, Inc. (NCDD). Among the many honors bestowed upon him, Steve has served as Dean of the NCDD and currently serves as chair of the National Association of Criminal Defense Lawyers DUI Committee.
He is the author of DUI: The Crime & Consequences in Tennessee, updated annually since 1991 (Thomson-West), and co-author with Lawrence Taylor (1942 – 2023) of the national treatise, Drunk Driving Defense, 9th edition (Wolters Kluwer/Aspen). Steve has served as an adjunct professor at the University of Tennessee Law School since 1993 and has received a number of prestigious awards for his faculty contributions. He is a popular international speaker, having spoken at legal seminars in 29 states, the District of Columbia, and 11 foreign countries. After being named a Fulbright Scholar, Steve was honored to teach as a Visiting Professor at the University of Latvia Faculty of Law (Law School) in the capital city of Riga, Latvia for a semester during 2019. In 2023, Steve was accepted an offer to teach for a semester as a Visiting Professor at Eötvös Loránd University Faculty of Law in Budapest, Hungary. Steve was designated a Fulbright Scholar for a second time and taught American Criminal Law and American Trial Advocacy at The University of Ljubljana Faculty of Law in the capital city of Ljubljana, Slovenia for the 2024 spring semester. Since then, Steve accepted an offer to teach American Trial Advocacy for the Winter Semester in 2025 at the Universidad Carlos III de Madrid Faculty of Law in Madrid, Spain. If you would like to contact the author, please visit his website at www.tndui.com.
