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The Great .08 Debate

February 14, 2008

by Edward L. Fiandach

In 1938 the National Safety Council Committee on Tests for Intoxication described a correlation between blood alcohol and the degree to which the subject would be physiologically affected. Establishing three zones of influence, the study considered a blood alcohol content of .05 percent to divide those not under the influence and those to be possibly under the influence, and .15 percent to be the point where one may be presumed to be under the influence of alcohol. In 1941 these findings were incorporated into New York Law.

In 1971, the New York State legislature lowered both the prima facie standard for intoxication to .12 percent and imposed stricter presumptions for driving while ability impaired. By 1972, spiraling fatalities in the face of what was perceived as the relatively ineffective state of enforcement belatedly brought the legislature to incorporate the American Medical Association's 1960 .10 percent prima facie evidence standard into the ' 1195(2)[b] presumptions.

On Octtober 23, 2000, President Clinton signed legislation instituting a phased in financial penalty for States which do not implement a .08 per se[1] blood alcohol limit.[2] Even so, the .08 debate is not necessarily over. This legislation gives states until 2004 to adopt .08 BAC as their per se limit. Failure to adopt this standard within this time frame would result in a loss of a portion of federal highway funding. In the event of a default, the delinquent state would still have a period in which to conform and have the lost funding restored.

The driving force behind a nationwide .08 standard is the belief that on a national scale, enactment will result in five hundred to seven hundred fewer automobile fatalities annually. In March of 1998, President Clinton opined that If all states lower their BAC to .08, it will result in 600 fewer alcohol-related deaths each year. Other proponents have been careful to speak in terms of estimates. In 1997, for example, Sen. Frank Lautenberg observed that from .10 to .08 . . . that difference alone could save 500 to 700 lives a year. Oddly MADD President Karolyn Nunnallee has been most circumspect: .08, it is estimated, will save between 500 and 600 lives a year.

Will .08 work? In this article we will examine several of the studies relied upon by .08 proponents, the physiological reality of such a provision and several alternatives that in this writer's opinion would have a more far reaching impact upon highway safety in the state of New York.

At the present time, 32 states and the District of Columbia impose a .10 BAC limitation, 16 recognize .08 and two have no so-called per-se limitation. In 1997, the latest year for which national statistics are available, 38.6% or 15,189 auto fatalities reportedly involved alcohol. In .08 states taken as a group, alcohol was involved in 36 percent of all traffic fatalities. As an average, these numbers mean nothing. Viewing the 10 states with the highest levels of alcohol related fatalities, we find 7 were .10 jurisdictions, 2 were .08 and 1 with no per se level. Although .08 states make up thirty-six percent of the whole and only twenty percent of the ten deadliest states, raw data has its limitations. In Utah, for instance, the alcohol related fatality rate is a paltry 20.6 percent. In Washington D.C., the rate was a staggering 58.5 percent. While it would be easy to attribute the low rate to the fact that Utah is a .08 jurisdiction and the District of Columbia is .10, to do so would ignore the well known impact which Mormon beliefs have had upon the consumption of alcoholic beverages in that state and that our nation's capital leads the nation in per capita drug addition.

Comprehending the impact of the various figures that are bantered about as part of the .08 debate requires an understanding of the primary source of information concerning alcohol and highway fatalities, the Fatal Accident Reporting System or FARS. FARS is intended to be the most comprehensive database of national automotive fatalities. FARS requires that information concerning a fatal accident be reported within thirty days of occurrence. Intended to foster timely reporting, this requirement may have seriously compromised the validity of the data where alcohol is concerned. Fewer than half the drivers reported to have been involved in fatal accidents are accompanied by corresponding BAC's. Although this has been attributed on occasion to alcohol testing being performed in fewer than one-half of all the cases reported, a more probable reason is that in serious accidents BAC results may not available within the limitation imposed by FARS. Regardless of the reason, in analyzing FARS data, NHTSA developed a statistical model which estimates BAC's by providing three broad categories; sober (.00), low (.01 - .09) and high (.10 and above). Other criteria employed include the sex of the driver, time of the accident, and prior alcohol violations on the part of the driver.

As applied to .08, this method of estimation is fraught with error. Initially, the matrix which is applied to the those cases unaccompanied by a BAC report, sober, low or high, does not create a partition at .08. Rather, a motorist deemed to be .08 would be included in the low range which would include all BACs from .01 to .09. Further, the extrapolation process which seeks to calculate BAC upon sex, time of the accident and prior alcohol driving history employs a series of negative points. Under this system, a male in his twenties involved in a night time accident would statistically contribute to alcohol involvement.

In a study conducted of NHTSA's methods as applied to interpreting the FARS data, the General Accounting Office noted in 1999 that certain questions-such as how many fatal crashes involve drivers with .08 BAC levels versus other levels or what the average BAC of drunk drivers involved in fatal crashes is - cannot be reliably answered by this model.[3]

In an effort to interpret the FARS data, NHTSA sponsored or adopted various studies to determine the effectiveness of a national .08 BAC standard. Based upon these studies, NHTSA has concluded that national enactment of a .08 standard will result in a reduction of alcohol related highway fatalities. In 1998, for instance NHTSA reported that [t]he traffic safety administration is aware of four published studies . . . [and] each study has shown that lowering the illegal blood alcohol limit to .08 is associated with significant reduction in alcohol related fatal crashes.[4] On the whole, NHTSA has concluded that when the .08 experience is translated to a national scale that it will result in a savings of in the range of 490 to 890 lives.

Unfortunately, each of these NHTSA sponsored or endorsed studies may be seriously flawed. In a review of Two Studies of Lowering the Illegal BAC Limit to .08 William R. Latham III, of the Department of Economics at the University of Delaware reviewed two such papers.[5] Initially, the author noted the adverse impact played by variable nature of the data from state to state:

The most fundamental problem with the basic data lies in the fact that in many states there are few actual observations on BAC for drivers and non-occupants in fatal accidents. Because there are so few actual observations on BAC levels in fatal accidents, NHTSA estimates the figures upon which all the analysis is based using a statistical model.


Nor is this fact unknown to NHTSA. Apparently alluding to the FARS data, NHTSA noted as early as 1994 that:

One of the major differences among the states is in the degree of testing for driver and non-occupant BACs. These differences in testing affect the accuracy and reliability of the estimates presented, and for 1994 range from a low of just under 11 percent known BACs to a high of just over 76 percent known BACs.[6]


Additionally, Latham found the NHTS reports to be hampered by the well known fact that in compiling alcohol fatality data, researchers are frequently constrained to substitute involvement for causation. As noted by Latham:

If there is a fatality in an accident where a driver clearly and solely at fault has a .00 BAC but another fatally injured driver or non-occupant has a BAC of .02, then the accident is labeled as alcohol-related.[7]

The most pervasive critic of NHTSA's methodologies and conclusions to date is the General Accounting Office. In its widely circulated 1999 paper the GAO looked at various NHTSA studies and found each to be flawed. While NHTSA has continuously pointed to five older state studies as conclusively establishing the effective nature of .08 per se legislation, the GAO noted that the studies had limitations and raised methodological concerns calling their conclusions into question or reported mixed results. Although more recent NHTSA sponsored or endorsed studies showed many positive results, the GAO characterized these studies as fall[ing] short of providing conclusive evidence that .08 BAC laws were, by themselves, responsible for reductions in alcohol related fatalities. Further, the report concluded:

It is difficult to accurately predict how many lives would be saved if all states had enacted .08 BAC laws because whether a state sees reductions after enacting a .08 BAC law depends on a number of factors, including the degree to which the law is publicized, how well it is enforced, other drunk driving laws in effect, and public attitudes concerning alcohol.[8]

While limitations of space make it impossible to review the GAO report in detail, certain salient points are worth repeating. In California NHTSA cited adoption of .08 as supportive of the argument for a national standard. In so doing, NHTSA touted, among other things, a 12% reduction in fatalities. Questioning this conclusion, the GAO observed that although this NHTSA study conducted by Research and Evaluation Associates did find a 12% reduction, the authors had only one year's worth of post .08 data available to them. Additionally, the GAO noted that during this period California adopted a per se revocation[9] law which went into effect a mere 6 months after the .08 legislation. Incredibly, the authors of the report concluded that the per se revocation enactment had no effect while simultaneously acknowledging that they were unable to accurately account for the separate effects of the two laws.[10] To be contrasted with the NHTSA sponsored report is what the GAO referred to as a more comprehensive, methodologically sound study of California released by the California Department of Motor Vehicles in 1995. Based upon four years of data, this study found mixed results. According to the GAO:

[T]he .08 BAC law was not associated with any statistically significant reductions in crashes resulting in fatalities or serious injuries in which drivers were reported to have been drinking, but reductions did occur in accidents that took place during hours in which alcohol involvement is probable, such as nighttime crashes between 2 and 3 a.m.[11]


Frequently extolled by those seeking imposition of a .08 BAC standard is a study conducted in 1996 study by the Boston University School of Public Health published in the American Journal of Public Health. This study compared the fatality rates of the first five states to adopt a .08 standard with those of nearby states. This study concluded that such legislation resulted in a 165 reduction in fatal crashes. This is the apparent source of the 500 to 600 fewer fatalities paradigm. This study was endorsed by NHTSA and was roundly criticized by the GAO. Most obvious was the use of nearby or neighboring states without establishing a matrix for comparison. Such a comparison is subject to being skewed by numerous factors, not the least of which being the varying degrees of vigorous and visual enforcement in the .08 state, such as sobriety checkpoints. Further, as in the California study, three of the subject .08 states had per se revocation laws take effect within months of the .08 legislation. Critically, the GAO concluded:

The study's conclusion that 500 to 600 fewer fatal crashes would occur annually if all states had .08 BAC laws is unfounded. The study does not explain how this estimate was derived or how the reduction could be credited to .08 BAC laws since the .08 and BAC laws went into effect within 10 months of each other in three of the five states. The authors told us that the estimate assumed that all states without .08 BAC would experience a reduction of up to 10 per cent in alcohol-related crashes after enacting the laws. However, the study provides no basis fore assuming that reductions of this magnitude would occur. Even this particular study found that while three of the five states experienced reductions greater than their comparison state, two of the five did not. NHTSA's April 1999 study of the effect of .08 BAC laws in 11 states characterized this conclusion as >unwarranted.'[12]

In April of 1999, NHTSA conducted yet another study, this time employing what is known as a regression analysis. A regression analysis is a statistical technique used to describe relationships between a dependant variable (e.g. fatal crashes involving alcohol) and one or more independent variables (e.g. .08 BAC and license revocation laws). It evaluated the effectiveness of .08 BAC legislation by comparing two groupsCstates with .08 BAC laws and states with .10 BAC lawsCboth before and after the .08 provisions were passed. The study analyzed FARS data for all 50 states and Washington D.C from 1982 through 1997. Primarily, the study looked for reductions in the number of low BAC and Ahigh BAC drivers in fatal accidents. Clearly the most detailed examination to date, the study attempted to control for such factors as the number of licensed drivers, vehicle miles traveled, per capita beer consumption, unemployment rates, urban/rural composition, seasonal differences, seat belt laws and existing downward trends in alcohol related fatalities.

This study concluded that states with .08 per se limits experienced an 8 per cent reduction in the involvement of drivers with both high and low BACs when compared with the involvement of sober drivers. This according to the study's authors, translated into a savings of 274 lives in the states that had already enacted .08 BAC laws and an annual total of 590 lives if .08 had been enacted in all jurisdictions.

Impressive upon its face, according to the GAO, the comparison technique may have tended to overstate the effect of the legislation. As noted by the GAO:

This method produced a larger effect in this study because, since 1982, of the drivers involved in fatal crashes, the number reported to have been using alcohol has dramatically declined (by around 39 percent), while the number reported to have been sober has substantially increased (by around 25 percent).[13]


The ability of the 1999 comparison to overstate the results can be seen in the following table:








Alcohol-involved drivers




Sober drivers




Ratio of alcohol-involved drivers to sober drivers




Source: GAO/ECED-99-179

Simply put, the difficulty with a study of this type is that as a result of measuring proportions, it has given credit to the desired legislation which in all reality was due to the increasing fatality rate of drivers reported to be sober.

Another shortfall of the 50 state study is that it did not include data for the most dangerous group of all, those under the age of 21. As noted by the GAO, in 1997, drivers under 21 accounted for around 14 percent of the fatal crashes and about 12 per cent of the fatal crashes involving alcohol.[14] Particularly lame is the basis for this exclusion. As reported by the GAO, this deadly segment was excluded because they fall within different legislation such as minimum drinking age and so-called zero tolerance laws. According to NHTSA, since this group is not within the intended target of the legislation, it cannot be expected to have an effect upon them and thus warrants exclusion.

While one could clearly find fault with the simian nature of NHTSA's logic on this point, a more salient thought could easily come to mind: If zero-tolerance (e.g. .02) has failed to prevent the grisly slaughter of and by our young on the highways, how can one blithely submit that .08 will succeed where the lower limit has not? Nor is exclusion of this group warranted by the .08 experience. While NHTSA has blithely assumed that this group falls within the parameters of other legislation, the various states do not necessarily agree. In California, for instance, 1997 saw 13,067 drivers under the age of 21 convicted under the state's .08 provision.

Why then, did NHTSA exclude the under 21 data? Because exclusion of this highly pertinent data led to the desired conclusion. As noted by the GAO:

Including persons under 21 years old would have changed these study results. In particular, the study would have found no statistically significant reductions associated with .08 BAC laws for drivers at low BAC levels. The findings regarding drivers at high BAC levelsCa group that contains over 3 times as many driversCwould have remained statistically unchanged.[15]


Nor does the GAO stand alone in its findings. In September of 1998, a New Jersey task force chaired by New Jersey State Attorney General Peter Verniero, observed that [t]he evidence [on .08% BAC] is not clear and convincing or definitive, and recommended rejection of a .08% BAC threshold. Three months later, the New Jersey Senate Task Force on Alcohol-Related Motor Vehicle Accidents and Fatalities repeated this recommendation. A similar recommendation was reached in a study conducted by the University of North Carolina. A .08 state, the study found that the provision had no clear effect on alcohol-related crashes.[16]

Is a .08 standard rationally related to the objective of saving lives? Analysis of this point lies not in recent comparison studies, but is the well known physiological effects of alcohol. Despite the recent significance of .08 as a threshold, most studies on the effect of alcohol ignore this level and tend to speak in broader ranges. NHTSA recognized expert Kurt Dubowski, for instance describes .01 - .05 as sobriety. Examining .05 - .12, Dubowski describes the state as euphoria with only lost efficiency on finer motor tests.[17] While one must be careful to avoid broad generalizations, it is interesting to take note of the conclusions reached in a study conducted at the Dent Neurologic Institute in Buffalo, New York and reported in the Journal of Clinical Pharmacology.[18] In this study, cumulative reaction times on a battery of tests at the .07 to .08 range which included a computerized automobile simulator were found to be slowed by only six-tenths of a second from those test subjects who had consumed no alcohol.

In short, it seems that there really exists no concrete evidence that reduction of the per se limit will produce a palpable reduction in traffic accidents or fatalities. And why should it? Given the collective experience in the area of drugs, prostitution and homicide, can anyone truly say that a .mere 02 reduction in the already prohibited BAC limitation reduction will persuade the numbers of motorist's necessary to make a difference? In a word, no.

What then will it take to make a difference? In our humble view, the largest untapped source for reducing the number of alcohol related fatalities on our highways is plea bargaining. Given the fiscal condition of our fair state, it seems that in due course New York will bow to federal pressure and reduce the per se limitation contained in Vehicle and Traffic Law section 1192(2) to .08. The Governor and the Assembly are already known to endorse such a proposal. It further seems that in due course, the anti-DWI lobby will turn to a fortuitous reduction in what it deems alcohol related fatalities and a NHTSA endorsed study as proof positive of the merit of such legislation. The ironic nature of such proof is that if enforcement of the present .10 per se limitation stands for anything these self serving studies will ignore the obvious: that with few exceptions .08 is not being enforced.

At the present time, the per se limitation is .10 per centum. Even so, not a single county in the state of New York enforces the letter of this law. In reality, in the strictest segment of the state, the five county area comprising the Finger Lakes region, the recognized BAC limitation for first time offenders is .12. That is to say that a first time violator who provides a blood or breath sample of .12 or lower will, in the absence of an accident, be permitted to plead to Driving While Ability is Impaired,[19] a traffic infraction. In reality this .02 variance is entirely fair given that under People v. Mertz, [20] the state must prove beyond a reasonable doubt that the motorist had a blood alcohol content of .10 or greater at the time of operation.

Even within that region, however, there are gross disparities. Although both Monroe and Ontario Counties have tight .12 plea bargaining limitations, there exists a crucial difference. In Ontario County the motorist has but one bite at the apple. Any arrest within ten years for an alcohol related offense where the motorist refuses a test or has a BAC of .10 or greater will be prosecuted as a felony and face the likely imposition of jail if convicted. In Monroe County, on the other hand, a second time offender who is not involved in a motor vehicle accident will frequently be invited to participate in a diversionary program. Provided the motorist successfully completes alcohol treatment, he or she will be permitted to plead guilty to a misdemeanor violation of Vehicle and Traffic Law ' 1192 with the probable imposition of probation.

In other areas of the state, there exists no rational basis the plea bargaining policies that have been adopted. In Erie County, for instance, the true BAC limit is that which was first adopted by the Legislature in 1941, .15. As recently noted by a vitriolic series of articles appearing in the Buffalo Daily News, even this limitation is frequently ignored at the time of trial. Turning to the Capital region, certain counties will permit de facto if not de jour plea bargaining for any first time offender.

The difficulty with such policies is that they lack muscle where it matters most. In Albany County, for instance, it will take at least three arrests of a motorist with a .15 to mandate felony treatment. While somewhat anecdotal, all too often it takes a felony to handle the crucial issues of addiction and treatment. Further, differing standards for plea bargaining present grave issues of due process when viewed as a statewide issue.

To resolve the territorial disparity which will have the potential for a tenfold increase in the face of .08, the Legislature must now address plea bargaining. By and large such could be easily handled by an amendment to Vehicle and Traffic Law ' 1192(10) which would provide:

The foregoing notwithstanding, in any case where the accusatory instrument charges a violation of subdivisions two or three of this section and the results of a chemical test administered pursuant to Vehicle and Traffic Law section 1194 indicate a blood alcohol content at the time such test was administered to be .11 w/v or greater or in the event that such motorist has refused to submit to a chemical test and no compulsory test was administered, any plea to such accusatory instrument must contain a plea of guilty to such subdivision; provided, however, if the district attorney upon reviewing the available evidence determines that the charge of a violation of this section is not warranted, such district attorney may consent, and the court may allow a disposition by plea of guilty to another charge in satisfaction of such charge; provided, however, in all such cases, the court shall set forth upon the record the basis for such disposition.


The choice of .11 as a cutoff is not perfunctory. As noted above, numerous counties have had a reasonable .13 policy in place for a considerable period of time. Assuming that .08 becomes law, .11 would merely represent a sensible downward extrapolation of these existing policies.

Editors's Note


[1]A per se statue imposes a limitation upon the motorist's blood alcohol content without reference to the individual's physiological condition (see, Fiandach, New York Driving While Intoxicated 2d, West Group, 1998, add section).

[2]As discussed in this article, the term .08 BAC will broadly refer to any law penalizing a motorist with a blood alcohol content of .08 or greater. No attempt has been made to differentiate between true per se statutes which provide sanctions based solely upon BAC results at the time of testing and those which require a correlation between the motorist's BAC at the time of testing and at the time of operation (see, e.g., People v. Mertz, (1986) 68 NY2d 136, 506 NYS2d 290). Similarly, no differentiation has been made between those states which mandate that results of chemical testing be reported in terms of blood alcohol content (BAC) and those that impose a forfeiture or penalty based solely upon breath alcohol content (BrAC) without reference to the alcoholic content of the motorist's blood.

[3] Effectiveness of State .08 Blood Alcohol Laws, GAO /ECED-99-179, p. 7 - 8.

[4]In a fact sheet on .08 NHTSA states that analysis of five stated that lowered the BAC limit to .08 showed that significant decreases in alcohol related crashes occurred in four out of the five states as a result of the legislation. In fact, seven studies have been done to date. Four assessed the effect upon crashes and fatalities published between 1991 and 1996 assessed the effect of .08 legislation passed between 1983 and 1991. On April 28, 1999, NHTSA released three additional studies.

[5]The two papers reviewed were: A Preliminary Assessment of the Impact of Lowering the Illegal BAC per se Limit to 0.08 in Five States. This paper does not have an indication of the authors' identities and is simply marked as a product of the Mathematical Analysis Division of the National Highway Traffic Safety Administration, with a date of December 1994; and The Impact of Lowering the Illegal BAC Limit to .08 in Five States in the U.S., by Delmas Johnson and James Fell of the National Highway Traffic Safety Administration (dated April 4, 1995 and marked in the 39th Annual Proceedings as having been presented at the annual meeting of the Association for the Advancement of Automotive Medicine in October 1995).

[6] Traffic Safety Facts, 1994.

[7]With a degree of immodesty we note that Latham was not the first to make this observation. As applied to New York, see, Fiandach, Handling Drunk Driving Cases 2d, ' 11:3, p. 11-8, West Group, 1995. Indeed, this fact has not escaped NHTSA. In Traffic Safety Facts 1994, the agency observed that [a] fatality is considered alcohol-related if any driver or non-occupant involved in the crash had a positive BAC. Reference to Anon-occupant is both strange and troubling. It would seem to support the proposition advanced by this writer in 1995 that an accident would be deemed alcohol related for statistical purposes when an intoxicated pedestrian is struck by a sober motorist.


[8] Effectiveness of State .08 Blood Alcohol Laws, GAO /ECED-99-179, p. 2.

[9]In practice this law works like Vehicle and Traffic Law ' 1193(2)(e)(7).

[10] Effectiveness of State .08 Blood Alcohol Laws, GAO /ECED-99-179, p. 16.

[11] Effectiveness of State .08 Blood Alcohol Laws, GAO /ECED-99-179, p. 13.

[12]Effectiveness of State .08 Blood Alcohol Laws, GAO /ECED-99-179, p. 15.

[13]Effectiveness of State .08 Blood Alcohol Laws, GAO /ECED-99-179, p. 22.

[14]Effectiveness of State .08 Blood Alcohol Laws, GAO /ECED-99-179, p. 21.

[15]Effectiveness of State .08 Blood Alcohol Laws, GAO /ECED-99-179, p. 22.

[16]Robert D. Foss, Ph.D., J. Richard Stewart, Ph.D., Donald W. Reinfurt, Ph.D., Evaluation of the Effects of North Carolina's .08 BAC Law, University of North Carolina, Highway Safety Research Center, November, 1998.

[17]Dubowski, Alcohol Determination in the Clinical Laboratory, 74 American Journal of Clinical Pathology 747, 749 (1980).

[18]F. M. Gengo, PharmD, FCP, C. Gabos, PharmD, C. Straley, PharmD, and C. Manning BA, The Pharmacodynamics of Ethanol: Effects on Performance and Judgement, The Journal of Clinical Pharmacology, vol. 30, no. 8, August 1990.

[19]Vehicle and Traffic Law ' 1192(1).


[i].This article was previously published in The Champion. It may not be reprinted in any form without the written permission of the author.

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