At midnight on December 30, 2018, Utah became the first state in the country to consider a person with a blood alcohol level of .05 as drunk. The reasoning behind this strict law and how it came to be passed are part of an illogical, convoluted story—typical of the Utah legislature.
Kate Conyers and Jesse Nix.
What will its enforcement mean for local businesses and visitors? Well, in the words of criminal defense attorney Kate Conyers who handles DUI cases, “We just don’t know.”
Conyers and her law partner Jesse Nix each have ten years of experience in defending Utah DUI cases—they have worked with hundreds. I met with them at—where else—The Green Pig Pub to discuss possible consequences of the .05 law going into effect.
A Truly Unscientific Study
It’s usually obvious when a person is dangerously intoxicated—a drunk’s slurring and staggering have been the basis for generations of pratfall comedy. But when you get down to blood alcohol levels like .08 or .05, it can be hard to discern drunkenness. That’s where the Breathalyzer comes in. By the way, both Jarom and Maddy went home with designated drivers.
Drink: A Utah pour, 1.5 oz., of rum mixed with an equal amount with pineapple juice
Test: Walk a 9-foot line, Walk-and-turn / Horizontal Gaze Nystagmus (HGN) / Stand on one leg
We had one of SLMags own, Jarom, be our first test subject.
Jarom West
Height: 6’
Weight: 160 lbs.
Pre-drink BAC number: .000
Post-one drink BAC number: .012, Smooth walker.
Post-two drink BAC number: .025, Smooth walker.
Post-three-drink BAC number: .042, Smooth walker.
Post-four-drink BAC number: .065, Walked the line well. Pivot: gracefully.
Madeline Slack was nice enough to volunteer for our very unscientific experiment.
Madeline Slack
Height: 5’8”
Weight: 118 lbs.
Pre-drink BAC number: .000
Post-one drink BAC number: .028, Stepped off line at least twice and stumbled a couple times on the pivot.
Post-two drink BAC number: .061, HGN: lack of smooth pursuit; not nystagmus.
“We don’t know if the police are planning to increase the number of DUI officers,” says Conyers. “There’s no special funding for it right now.”
It takes a lot of time to process a suspected DUI, according to Nix. In order to pull over a driver, an officer has to have probable cause—that could be anything from not stopping a full three seconds at a stop sign to weaving in and out of lanes. There’s a chart listing suspicious behaviors, driving at varying speeds, failure to signal, driving 10 miles per hour under the speed limit—all things many drivers do stone-cold sober. If he suspects the driver has been drinking, the officer can request a field sobriety test, designed to evaluate an individual’s divided attention—driving demands multiple kinds of attentiveness.
Tests may include walking a nine-foot straight line heel-to-toe, the Rhomberg Modified Test (keeping your balance with your eyes closed), the walk-and-turn test, the Horizontal Gaze Nystagmus (HGN) test (tracking an object horizontally), the one-leg stand test, the finger-to-nose and the finger count test. Each field sobriety test has specific cues that an officer looks for while monitoring a suspect’s performance. But the defining test is the Intoxilyzer, which most of us call a breathalyzer.
Until then it’s all still suspicion, especially if the subject’s blood alcohol content is .08. Will .05 make a difference? Many Utah DUI attorneys agree that it’s best to refuse the personal breathalyzer test, called a PBT test, which is usually the equipment available to regular cops. Designated DUI officers carry a large, more sophisticated Intoxilyzer in the trunks of their cars; they set it on the hood, so the car’s camera can record the testing procedure. These machines must be recalibrated every 40 days and before and after each arrest. Plus, the officers must observe the Baker Period—the 15 minutes of observation required before administering the test.
Like we said, it’s complicated and time-consuming.
It’s possible after .05 goes into effect, the police may be more vigilant about minor traffic violations, finding cause to find pull people over.
“It’s not hard to get that .05 level,” says Tanner Lenart, an attorney who works with establishments that serve liquor. “But,” she adds, “It’s also not-hard to not get to that level. If you’re having wine with a multi-course dinner each course over time, the results can be very different than if you’re out on the town doing shots. And of course, the BAC in a woman who drank the same amount as a large man will differ considerably.” (See pp. 87 for Salt Lake magazine’s unscientific experiment.)
The real question is, will the new .05 law make Utahns any safer on the road? Conyersand Nix doubt it.
“If they’re looking for low-hanging fruit, will they be giving the really dangerous offenders less attention?” questions Conyers.
“Utah already has one of the lowest drunk driver rates in the country,” Lenart points out. “The difference is actually very slight between .05 and .08. We know the risk isn’t at this level. So what is the point of the legislation? There are many more accidents involving distracted drivers—the cellphone is more a of a problem. Why not address that instead of criminalizing behavior that’s legal in the rest of the country? This is a solution to a problem we don’t have.”
There is no provision for differentiating between degrees of intoxication in the new law. Someone who is arrested for a BAC of .05 could face the same set of consequences as a person with a BAC of .08. We differentiate types of murder, but not alcohol level?
There are, everyone I talked to agreed, a lot of holes in this law and a lot of unanswered questions.
“At the time the .05 law was passed, public attention was focused on the Zion Curtain controversy,” says Michele Corigliano, former director of the Salt Lake Area Restaurant Association. “No one thought the .05 would really go through.” It was passed through committee without a lot of scrutiny. And almost immediately it drew fire—Rep. Karen Kwan (D-Murray) sponsored a bill to delay the start date of the law, arguing that the issue needed more study. “This is a bad policy and we need to fix it,” Kwan said.
Ever-dramatic Sen. Jim Dabakis (D-Salt Lake City), said he had two mimosas before attending the 8 a.m. legislative hearing to vote on Kwan’s proposal, just to prove his lack of impairment. The .05 law prevailed.
BACtrack Mobile Smartphone Breathalyzer: About $100 at Best Buy, it connects to your Smartphone via Bluetooth and the box claims “police-grade accuracy.” But—grain of salt.
Because it’s legislation passed by the Latter-day Saints-majority legislature, Lenart feels these are laws made for drinkers by non-drinkers—people making laws about something they don’t understand without scientific rationale or data. It’s also elitist, she says, to create laws that affect a certain population.
Finally, the economic repercussions should be considered. The annual retail liquor sales in Utah reached $427.6 million in 2016-17. At that time, there were 27 local distilleries, dozens of craft breweries and a booming cocktail business, all giving the lie to the tourist-inhibiting impression that “You can’t get a drink in Utah.”
How the new law will affect this sector of Utah’s important tourism business remains to be seen. Some bars are already installing breathalyzers.
Until then, Happy New Year. Be careful. And don’t hesitate to use the businesses that will certainly boom because of the new law: Uber and Lyft.
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Mary Brown Malouf is the late Executive Editor of Salt Lake magazine and Utah's expert on local food and dining. She still does not, however, know how to make a decent cup of coffee.
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