From .08 to .05 – should the DUI inference level be lowered?

Currently under South Carolina DUI law, a breath device reading of .08 of one percent creates an “inference” that a driver’s mental faculties to drive are impaired from the ingestion of alcohol. This inference level has changed over the years. When I was young, it was .15. It was changed to .10 and then to the current level of .08.

As a South Carolina criminal defense and DUI lawyer, this topic in the news is of  great interest to me-and it should be to you. Like I have always said, if you drink and don’t drive, or drive and don’t drink, you  there is no need to be reading this blog.

The stated goal of those who favor a reduction of this inference level from .08 to .05 is to reduce deaths and injuries arising from accidents where drivers are intoxicated. This is noble goal. I nor anyone I know, is in favor of any other person being harmed for any reason save for self-defense or other circumstances where our laws and society recognize the use of force as justified or excusable.

However, there are other considerations here that I suggest, are worth reviewing.

Politics “Driving” Science-An Unavoidable Aspect of Life

As is the case in most circumstances in our modern, complex society where the federal government’s reach grows each year regardless of which political party is in power, this “.05” issue is tied to…politics. Here’s why.

Breath alcohol machines are not cheap. A unit cost approaches or exceeds $10,000.00. Most of the time, in South Carolina and in other states, funds to buy these machines come from state and federal grants. Grant requirements provide that a breath machine (BAT) cannot be purchased by a state with public funds unless that machine appears on the Conforming Products List (CPL) published in the Federal Register by the National Highway Traffic Safety Administration (NHTSA), “Alcohol Countermeasures Unit” at the Volpe Center in Cambridge, Massachusetts.

Even more interesting is this. Bullying. Here is how the “inference” breath alcohol level gets lowered historically.

Someone in Washington, pressured by various groups, decides to tie federal disbursement of highway funds given to states to state enactment  of laws in compliance with federal mandates. In this context, it is the lowering of inference levels for breath alcohol measurements in DUI cases.

What will happen now is that with the expression by the National Highway Traffic Safety Administration, Alcohol Countermeasures Unit of a desire that states  lower the inference level from .08 to .05, states will start kowtowing. In fact, even with the mere mention of this in the media, one SC State legislator has already filled a bill before the federal bully has even balled up his fist.

A Quick Note About the NHTSA That You Didn’t Know About

NHTSA and the Conforming Products List (CPL, sometimes referred to at the Qualifying Products List or QPL) has been “testing” breath alcohol machines since at least 1981. The testing division, the Alcohol Countermeasures Unit, was headed by Dr. Art Flores from 1975-2005 and  then retained as a contractor there from 2006-2009.

In 1981, Dr. Flores was the co-author of a paper “Breath Alcohol Sampling Simulator (BASS) for Qualification of Breath Alcohol Measurement Devices.”  I will address this paper in a separate blog considering its effect on testing and approval of breath alcohol machines for 33 years.

That paper recommended that the method of testing and approving these devices be changed. You see, the first method of testing breath machines involved the comparison of a breath test value with a blood test value where both samples were taken at the same time. Since alcohol in breath has no effect on humans, only when it is present in blood that circulates through the central nervous system, this testing protocol made sense and was logical. The idea was to determine if the breath machine, as it must do, was converting accurately the detected quantity of alcohol in human breath to an equivalent estimate of the alcohol quantity in blood.

Well. The B.A.S.S. paper announced that this method was being abandoned. Further, and most importantly, that due to the variability of human breath as to pressure, flow rate and temperature, both within and among individuals, humans breath couldn’t be used to test the machines which were to be used on humans.

That is worth stating again.

Due to the variability of human breath as to pressure, flow rate and temperature, both within and among individuals, humans breath couldn’t be used to test the machines which were to be used on humans.

This was why the “breath alcohol sample simulator” was developed-to mimic human breath to test machines that would be used on human. Not just used on humans. Rather used on humans to collect evidence to be used against them in criminal cases.

Point Summary-

1. In testing breath machines for placement on a conforming products list, NHSTA does NOT compare breath machine results to results of contemporaneously taken blood samples.

2. While breath alcohol machines are used on humans, humans cannot be used to test these machines since human breath individually and from person to person is too variable as to essential testing parameters-breath pressure, flow and temperature.

Raise your hand if you didn’t know that. Stand up if you think this makes sense.

South Carolina’s Reaction to the .05 Issue in the News

Click here to read the bill for yourself. On May 15, 2013, Sen. Gerald Malloy introduced Senate Bill S 706. This bill reduces the breath alcohol level at which an inference arises of alcohol impairment from .08 to .05.

But there is something missing from the bill language that I will discuss below. Missing in the bill is a legislative mandate that SLED make available a “SLED, SC Certified” NPAS DMT breath testing machine for complete independent testing by the criminal defense bar. Why has SLED resisted this for years? Is that fair?


Problems with Lowering the Inference Level to .05

This would not logically create a “deterrent” effect.

Consider a couple of reasons.

While lowering the inference level might make a DUI case easier to prosecute, prosecution occurs after the offense has occurred. Result, no logical deterrent effect.

As well, as it is now, very few drivers have any idea, or the means of determining, when they might reach an accurate .08. Determining when they reach an accurate .05 level is less likely for  a person to be able to do.

Maybe additional public resources should be expended on educational programs since the “Zero Tolerance” campaigns do not appear to have achieved the intended result. It those campaigns have been successful, why suggest that the breath inference level be reduced to .05?

The lower the inference level, the greater the need for scrutiny of the breath test machine primarily through SLED making a “South Carolina certified” DMT machine available to the defense bar.

No one outside SLED knows how a “SC/SLED Certified” DM breath test machine works. Efforts by the defense bar to acquire a DM or DMT  for independent testing by experts have been thwarted for over 23 years by SLED.

SLED has taken the position that if a lawyer or a scientist purchased a DM or DMT machine from the factory for independent testing, SLED would challenge any testing results since the machine purchased and tested would not be a “SLED, SC certified machine.” By the way, SLED prohibits the manufacturer from selling a “SLED/SC Certified” machine.

But SLED would not allow the independent testing of a SLED certified South Carolina device.

Is this fair? Does that sound right? Just trust us? We know this machine measures down to .02 of ONE percent accurately because we say so?

Are Machines Infallible Just Because the Government Assures Us They Are? How About Polygraph Machines?

Today news reports revealed that polygraph testing has been thrown on its head. A problem has surfaced that was known about for a decade.

As was reported by the State.

Scientists have experimented for more than a century with running a minuscule amount of electricity through sweat glands in the fingertips as a way to gauge emotions and mental effort. In the past two decades, however, polygraphs marketed to government agencies have changed the way perspiration is measured.

As a result, the LX4000 measures sweat in two ways. One method, known as the manual mode, directly measures the secretions from sweat glands, as scientists traditionally have done. The other, known as the automatic mode, electronically filters the measurements and is designed to smooth out the sometimes erratic graphic representations and make them easier to interpret.

David Reisinger, a veteran federal polygrapher, said he first witnessed a problem with the LX4000 in 2005, while discussing a test with a Lafayette employee by phone. When he switched between the two modes, he noticed a difference in the measurements.

“It was so significant I noticed the problem immediately,” said Reisinger, a polygrapher at the Defense Intelligence Agency at the time. “It jumped right off the screen at me.”

Reisinger pressed the company to look into it because he saw it could change the outcome of a test depending on the setting. Polygraphers assign numbers to sweat measurements and add them up for a final score that’s supposed to show whether someone is lying. In a test where one point can make a difference, Reisinger documented up to a 16-point difference between the two modes.

He notified his supervisors, and Lafayette pledged to fix it. Years and dozens of examples later, the company still hadn’t, he said.

“What troubled me is that they couldn’t tell me which measurement was accurate,” he said.

The Air Force’s Office of Special Investigations noticed a problem as early as 2002, the year the LX4000 hit the market. A spokeswoman said her law enforcement agency was concerned that it could change the outcome of tests, and sought out Lafayette officials.

Wait a Minute. Doesn’t our law currently provide that a person with a .05 level is conclusively presumed to be NOT under the influence?  YES!

On our law books for years, a person whose  breath or blood reading is .05  of one percent or less is conclusively presumed to NOT be under the influence of alcohol.

Aren’t science considerations applicable here? For years, a driver is presumed to be not under the influence and so, now, with but a stroke of a legislative pen, this is thrown out the window? Surely this decades-long presumption against being intoxicated was based on biochemical and human physiological considerations. Science.

Therefore, it would seem that such a reduction to .05 to create an inference of alcohol impairment would require scientific justification and explanation of a 180 degree reversal of our law.

Or, is it the case that law is easier to change than science? Specifically, is it the case that science cannot be flipped on its head like this simply because Washington wants it so?

Or, should someone step forward and ask Senator Malloy why the South Carolina General Assembly allowed what he now wants to define as impaired drivers those (.05 or less breath readings) who have lawfully (and presumptively NOT DUI) driven the roads and highways of our state for a couple of decades?

Also, what should the new “conclusive presumption of not impaired” be? .02? .03? .04?

Or. is this concept of a level of presumptive innocence going to be abandoned completely? And if so, does that render the .05 level meaningless in that any amount of alcohol detected in a driver renders him impaired? Is that what we want? Which leads to the next consideration.

Reality is reality. Again, no one wishes anyone harm. But with tourism being S.C.’s greatest industry, has Sen. Malloy or anyone else stopped to consider what the effect of a .05 level would have on tourism?

It seems certainly reasonable that a tourist who is a social drinker, might very well avoid South Carolina if this change in the law is made. Or, a tourist who comes here might very well simply avoid Charleston’s many fine restaurants and dine in their hotel. Unlike other cities, Charleston does not have effective public transportation.

Is there an economic impact to this? Has anyone checked?

What about the police officer’s perspective?

While we may already be at a point where anyone stopped with alcohol on his or her breath may find themselves at the police station, would the reduction of the inference level to .05 produce legislatively unintended results?

I would assume that proponents of the .05 change would suggest that since they aren’t in favor of reducing the level to say, .01, they recognize that a responsible drinking driver can consume one or two drinks and should not be subject to arrest for DUI.

But if a police officer is now advised that a breath level which formerly constituted a conclusive presumption of NO impairment, now creates an inference that the person WAS, is the officer likely to pay less attention to the probable cause to arrest, constitutional requirement? Would he be more likely to simply arrest someone guessing that they are at least at a .05 breath alcohol level?

If this is where we are headed, why doesn’t Senator Malloy introduce a bill to make it illegal to drive a motor vehicle with the odor of alcohol on the driver’s breath?

An important aspect of SC DUI law comes into play here and must be considered.  Our DUI law or implied consent law, does not come into play unless a person is….. under arrest for DUI. In other words, an officer may not offer a person a breath test, refusal of which results in license suspension, unless the person is under arrest. So are we heading to a point where everyone is arrested and a machine not subject to independent testing makes the call?

No. Not yet. While we may be head there eventually, our constitution provides for a criminal justice system of fairness, not governed by machines kept behind Oz’s curtain.


In the world of machines used to produce results used as evidence in criminal cases, let’s ensure that science precedes policy.

And if science turns on its own head and supports a notion that a breath reading accepted as evidence of a citizen NOT being DUI is now evidence of an inference that they are, let’s do something first:

Let’s enact law that forces SLED to make this machine available for truly independent testing so that the public might have more faith in its accuracy than they acquire by simply being patted on the head and told so.

Find DUI defense information at our website Kulplaw.com.

South Carolina DUI/Criminal Defense Superlawyer 2010, 2011, 2012, 2013, 2014



Kulp & Elliott accepts cases in Charleston, North Charleston, Mt. Pleasant, Summerville, Goose Creek, Hanahan, Moncks Corner, Ladson, James Island, West Ashley, Folly Beach, Sullivans Island, Isle of Palms, Awendaw, McClellanville South Carolina.

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