Dennis Paxinos, the chief prosecutor for Yellowstone County, Montana, wrote a Guest Opinion column in the Billings Gazette this week entitled “Scientific Test would disprove DUI myth of ‘few drinks’.”

Outraged by the suggestion of legislators in his area that a “few drinks” might accidently put them over the legal limit of .08, he issues a challenge to any two legislators to have drinks and dinner with him with these conditions:

• We all agree to take a breath test on a Portable Breath Test Instrument (PBT) first to make sure we are all starting with a 0.00 BAC.

• The lawmakers, myself and a member of the press will order dinner and drinks and we chat as we would normally for an hour and a half.

• I would then ask everyone to estimate their BAC as well as the BAC of their dining companions.

• We would then be given a preliminary breath test from an officer on stand-by. And, to demonstrate how accurate the PBT tests are, we would then all be driven to the DUI processing center to have our breath analyzed on the Intoxilizer 5000. [sic]

He finishes his challenge by insisting that since the breath test machine will inevitably show them to be “under .08”, they will have to make a statement on the floor of the House or Senate that “having a couple of drinks with dinner is perfectly legal”. (Presumably, he means driving after a few drinks at dinner is legal.)

Ignoring for now his implication that being under .08 would automatically make someone not guilty, let’s analyze what’s wrong with his so called scientific challenge…

He assumes that the Intoxilyzer 5000 gives an accurate result. (Of course, the PBT that he offers first is so unscientific, that it doesn’t even meet the low threshold for admissibility.) If the machine is so “scientific”, why doesn’t CMI, the manufacturer, allow independent (read: non law enforcement) folks to buy the machine and test it out?

The basis of modern science is peer review; and yet CMI refuses to let their machine be independently tested? Does that sound like science to you?

One last point about his op-ed piece. Paxinos writes:

…having a couple of drinks with dinner is perfectly legal. However, consuming a lot of drinks with or without dinner coupled with driving is against the law and should not be condoned or accepted by anyone.

Thanks for highlighting the problem with DWI/DUI legislation everywhere. Something is fishy when even the prosecutor can’t enunciate a clear cut rule for “how much is too much”. 

If you’re going to write an article mocking the idea that folks don’t always know when they’ve exceeded a .079 breath alcohol content, shouldn’t you yourself be able to define it better than “more than a few drinks, but less than a lot”? Science indeed.