How drunk is “drunk driving?”

Christmas season is around the corner, and with that comes a deluge of Christmas parties and get-togethers. For party-going-and-drinking drivers, it’s also time to be reminded of the recently implemented Anti-Drunk & Drugged Driving Act of the Philippines (Republic Act 10586 or for simplicity here “Anti-Drunk Driving Act”).

Under the Anti-Drunk Driving Act, a person found driving while under the influence of alcohol can go to prison (from a minimum of three months to a maximum of 20 years) and/or be subject to a fine (from a minimum of P20,000 to a maximum of P500,000) plus suspension of the driver’s license for 12 months for the first offense, and perpetual revocation of the driver’s license for the second offense. For professional drivers, their driver’s license may be perpetually revoked after a first offense.

Given the serious consequences of the Anti-Drunk Driving Act, an important matter to determine is: when is a driver considered drunk?

Under the implementing rules and regulations (IRR) of the Anti-Drunk Driving Act, suspected drunk drivers may be subjected to three types of sobriety tests: the Eye Test or “horizontal gaze nystagmus,” which requires the driver to horizontally or laterally gaze following a moving object held by the law enforcement officer (LEO); the Walk-and-Turn Test, which requires the driver to walk heel-to-toe along a straight line for nine steps then walk back to the point of origin without any difficulty; and the One-Leg Stand, which requires the driver to stand on either leg with one foot raised about six inches off the ground for 30 seconds.

The driver must pass all three sobriety tests. If the driver fails any of the tests, the LEO will use an Alcohol Breath Analyzer (ABA) to test the breath of the driver. While some drivers may be able to pull-off of the sobriety tests while intoxicated, the ABA is more challenging since numbers may not be manipulated and are considered conclusive proof under the IRR. The ABA measures the blood alcohol concentration (BAC), which is the amount of alcohol in a person’s blood.

The IRR requires drivers of private vehicles (with a gross weight not exceeding 4500 kg) to have a BAC of below 0.05 percent. For professional drivers or drivers of trucks, buses, motorcycles and public utility vehicles, the allowable BAC is 0.

“Driving under the influence of alcohol” is driving with a BAC beyond that allowed by the IRR. Thus, a non-professional driver who takes alcohol will not be considered a liable “drunk” under the Anti-Drunk Driving Act if such driver’s BAC is below 0.05 percent. But for professional drivers, any amount of alcohol in the BAC is considered drunk for purposes of being penalized under the law.

How many drinks can a person have before reaching a 0.05 percent BAC?

The answer is, it depends. The IRR does not provide guidelines for drivers to determine how many drinks they can have.

According to sources, several factors affect BAC: time of alcohol intake (how long alcohol was taken from the time the ABA test is administered), type of alcohol (beer usually has lower alcohol content than wine or vodka), quantity of intake, the presence of food in the stomach (alcohol is absorbed faster on an empty stomach), how fast the alcohol is taken (generally, the quicker the intake, the higher the peak BAC will be), type of mixer used (some studies suggest that carbonated beverages speed up the absorption of alcohol), body size of the drinker (with the same amount of alcohol, larger people tend to reach lower BACs than smaller people), body temperature, and gender of the drinker (according to a study, women’s BAC peak faster than men’s because women have less water in the body and more fat which is not easily penetrated by alcohol). Other studies add that health, emotional and physical condition, the presence of other substances (medications, drugs), and built-up tolerance against alcohol also influence BAC.

Considering the complex and diverse factors contributing to BAC results, a driver may not score similarly at all times with the same amount of drinks and it would be practically impossible for drivers to assess their own BAC. A helpful, but rough, guideline given by an officer of the Land Transportation Office (LTO) is that an average person will likely reach 0.05 percent BAC with one bottle of beer, one glass of wine and one shot of hard liquor (like tequila or vodka).

Drivers can also get an estimate of their BAC through calculators available online (such as that found in www.onlineconversion.com/bac.htm).  Online calculators usually require a person to provide information on the volume consumed, alcohol percentage, body weight, and hours spent consuming the drink, to get an estimate of the BAC percentage and analysis.  However, these calculators are not meant to provide conclusive results about a driver’s BAC for purposes of complying with the Anti-Drunk Driving Act.

Should a driver undergo breathalyzer testing, an LTO officer gives the following tips: (1) Check if the mouthpiece of the breathalyzer (the part where the driver is asked to blow) is sealed prior to use. This ensures that the results are accurate as to the driver being tested. Used mouthpieces may have residue from another person who was previously tested as positive for being intoxicated; and (2) Demand to see the results. The breathalyzer machines flash the results on a screen and have the ability to print the results. Check if the results reflect either BAC of over 0.05 percent or over 0 percent (whichever is applicable), to see whether the Anti-Drunk Driving Act was violated.

Even if a driver is convinced about his/her non-intoxication, a driver must comply with all types of mandatory testing (sobriety tests and breathalyzer test) when required by an LEO. Refusing to undergo any mandatory testing is a ground for confiscation and automatic revocation of a driver’s license.

If you do find yourself having that drink, keep in mind that alcohol continues to be absorbed and circulated around the body after drinking has stopped which may result in BAC continuing to rise. Thus, having a cold shower or coffee may not be sufficient to lower BAC. Sufficient time must elapse for alcohol to be eliminated from the body or for BAC to be reduced to the legal limits. Unfortunately, what constitutes “sufficient time” is another tricky question since the total time to eliminate alcohol from the body also depends on several complex factors that influence alcohol absorption.

According to research cited by the United States National Highway Traffic Safety Administration (NHTSA), even low alcohol levels (such as a BAC of 0.25) can cause significant impairment in psychomotor performance, to the extent that driving safety is compromised.

With all the complexity of determining BAC and how to lower it, the simplest and most prudent rule of thumb for drivers is to avoid driving after drinking.

An LTO officer mentioned that some government agencies are exploring the idea of having a publicly available shuttle service that can be called for pick-ups for drivers who drink. If this were true, this year’s Christmas season may be a good time to start implementing it.

While ‘tis the season to be jolly, it’s always the right season to practice safety.

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Karen Jimeno is a junior partner at Jimeno Cope & David Law Firm and a law professor in various law schools. She is also a TV host for LegalHD at 9TV. She graduated from UP Law School and Harvard Law School and is licensed to practice law in the Philippines and in New York. She is currently the Director for Communications & External Affairs of the Presidential Assistant for Rehabilitation & Recovery of Yolanda-affected areas.