It’s holiday time! Who doesn’t celebrate with a glass or two of the bubbly or have a beer or two (or more) while watching the game? Maybe that extra shot of tequila – after all, it makes the tamales taste so much better! Enjoying drinks with family and friends is a common and enjoyable holiday pastime. Nevertheless, one should be cognizant about merry making, so one can make informed decisions and be sure to use a designated driver, ride service or taxi.
However, the holiday season is also a time when many ordinary motorists — who would never consider themselves to be a likely “drunk driver” — find themselves in unexpected automobile accidents as a result of alcohol. For example, Ken Kolosh of the National Safety Council states that evidence shows the New Year’s holiday generally results in a significant increase in the number of fatalities and the likely cause is “alcohol consumption.” “During the New Year’s period, between 2007 and 2011, an estimated 42% of traffic fatalities were the result of drinking and driving.”
As we are now in the 2016 holiday season, it is a good time to review some of the pertinent issues regarding driving after having even a little “holiday cheer.” Most Californian’s are familiar with the concept of 0.08 the legal threshold for “drunk driving,” and know not to “blow” a 0.08. These concepts are based on the statutory standard for driving under the influence or “drunk driving,” pursuant to Vehicle Code section 23152(b). California law presumes that if the motorist’s blood alcohol concentration (BAC) limit is 0.08% or greater at the time of the blood or breath test, the motorist is “driving under the influence” and has committed a “DUI” in violation of Vehicle Code section 23152(b).
In addition to the 0.08 BAC standard, there is a less well-known threshold of 0.05 BAC. The National Transportation Safety Board has recommended that states establish a per se BAC limit of 0.05, instead of the 0.08 limit. According to the NHTSA research, at 0.05 BAC virtually all drivers are impaired to such an extent that the risk of an automobile accident significantly increases. At 0.05 BAC, motorists are still very likely to experience:
- increased difficulty focusing
- impaired judgment
- difficulty steering
- lowered alertness
- reduced reaction time
Becoming involved in a traffic accident at just 0.05 BAC could expose the motorist to punitive damages for driving under the influence. If a motorist is found liable in a personal injury case and held liable for punitive damages, their insurance company may not have to pay those damages under certain circumstances and the motorist could have to pay out of their own pocket. Peterson v Superior Court (1982) 31 Cal. 3rd 147.
In Taylor v. Superior Court (1979), the California Supreme Court ruled that a driver who “willfully consumes alcoholic beverages to the point of intoxication, knowing that he thereafter must operate a motor vehicle” can be held to exhibit a “conscious disregard of the safety of others,” and therefor exhibits the malice necessary for punitive damages (Taylor v. Superior Court (1979) 24 Cal.3d 890, 897; citing Civil Code § 3294).
Other countries, such as Sweden, the Ukraine, and Norway have even lower legal BAC levels. They consider you to be driving under the influence at just 0.02 BAC.
The California DMV has published a chart which cross-references body weight and the consumption of alcohol effects one’s blood alcohol content. This chart shows that for a good many men and women, two drinks (whether beer, wine or alcohol) can elevate one’s blood alcohol content to near the 0.05 BAC (blood alcohol content), which is standard for impaired driving. Even blowing 0.02 BAC is technically “under the influence” and that amount has been proven to start changing vision, peripheral vision and depth perception, and affects reaction time. So in the event of an accident, just the fact that one was under any influence at all, a Judge may decide to admit that fact as evidence of one’s negligence, or worse, recklessness (which would allow for a punitive damage claim).
There are calculators available that factor one’s weight and hours spent drinking and can provide an individualized BAC estimation, such as this published by the Cleveland Clinic, an academic hospital. According to the National Highway Traffic Safety, blood alcohol content is based on the various factors, including the following:
- The number of drinks.
- How fast you drink. When alcohol is consumed quickly, you will reach a higher BAC than when it is consumed over a longer period of time
- Gender. Women generally have less water and more body fat per pound of body weight than men. Alcohol does not go into fat cells as easily as other cells, so more alcohol remains in the blood of women.
- Weight. The more you weigh, the more water is present in your body. This water lutes the alcohol and lowers the BAC.
- Dining while drinking. By having food in your stomach, absorption will be slowed.
There are additional factors which affect one’s blood alcohol content, such as one’s metabolism, emotional state, medications, alcohol proof (or percentage of alcohol in a drink), pacing with water, tolerance, etc. Over the holiday period, the California Highway Patrol (“CHP”) and Los Angeles Police Department (“LAPD”) advertise their increased enforcement efforts in order to remind motorist not to “drink and drive.” Particularly during the Christmas weekend, the CHP and LAPD typically use more vehicles on the highways and also employ checkpoints.
Enjoy the holidays, but be safe and, if there is no designated driver, don’t be afraid to call a taxi or use Lyft of Uber. Remember, “friends don’t let friends drive drunk” and “buzzed driving is the same as drunk driving.” The Drexler Law Firm’s Los Angeles drunk driving lawyers have been handling personal injury cases for more than 40 years. We have seen the devastating effects of driving under the influence. Many of the cases we have handled have involved the use of alcohol and other substances.
Recently, we resolved a wrongful death case on the eve of trial. A pedestrian had been hit and killed by a drunk driver. We were able to obtain $5.5 million settlement for our client that day, which was all of the available policy limit coverage — a small consolation for a large loss.
So we ask you all, please act responsibly this holiday season and do not put at risk the very things you are thankful for, and we wish everyone a beautiful and safe holiday season!
The information in this blog post (“post”) is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. This blog is not intended to, and does not, create an attorney client relationship, an offer of employment or a guarantee of success for clients of The Drexler Law firm. No information or representation contained in this post should be construed as an offer of employment, guarantee of success or the creation of an attorney client relationship with The Drexler Law firm, nor as legal advice from The Drexler Law Firm or the individual author. No reader of this post should act, or refrain from acting, on the basis of any information included in, or accessible through, this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer in the corresponding jurisdiction.
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