We put Utah’s strict new .05 DUI law to the test

SOUTH SALT LAKE, Utah -- In a conference room at the Unified Police Department, FOX 13 put Utah's new .05 DUI law to the test.

When it goes into effect on New Year's Eve, Utah will have the nation's toughest DUI law, lowering the blood alcohol level from .08 to .05. It's been the subject of protests and pushback across the state, with worries it will harm tourism and jail casual drinkers. But so far, efforts to repeal it or modify it have failed on Utah's Capitol Hill.

To see what that could look like, FOX 13 and The Salt Lake Tribune decided to conduct an experiment with Unified Police Department's DUI squad.

How it was set up:

Starting with a 0.00 baseline and a field sobriety test, five people of varying body types were given different drinks and food items and tested at different points of the evening. Once they hit .05, they were also administered a field sobriety test.

Prior experiments posted on social media have either not included dinner, or didn't wait long enough for the alcohol to metabolize.

Kathy Stephenson, the food writer for The Salt Lake Tribune, had a restaurant-pour size glass of white wine with a Greek salad. It's something she says she typically would eat.

Darcy Stapleford, a producer at FOX 13, drank a high-point golden ale and had a cheeseburger and fries.  Photojournalist Mike Rank ate the same, but was asked to drink 3.2 beer, which is sold in every restaurant, grocery and convenience store in Utah.

Robert Gehrke, a columnist for The Salt Lake Tribune, didn't have dinner with his cocktail, served in metered shots.

"I'm supposed to be replicating the bar experience," he said. "You go out for Happy Hour, have a couple of drinks and see if you can make it home."

I drank cough syrup and had a cup of soup. One of the claims made about the strict new DUI law is cough syrup could lead to an arrest. The cough syrup has a 10% alcohol content, more than the glass of wine or the low-point beer. (The portion size was the recommended limit, and much smaller than what the drinkers had.)

The experiment:

Unified Police Officer Mikel Archibeque administers a breathalyzer test to FOX 13's Darcy Stapleford. (Photo by Ben Winslow, FOX 13 News)

Unified Police officers had everyone eat and wait about 30 minutes. After two beers, Rank, who is a large man, blew a .009. One high-point beer had Stapleford at a .033; while after one glass of wine, Stephenson blew a .013 and Gehrke blew a .007 after a single gin and tonic.

Cough syrup apparently had no effect, registering 0.00 on two separate breathalyzer tests for me. The most I felt was a little tired, like you would after a long day.

Everyone else kept drinking.

After a second high point beer, Stapleford reported feeling a little tipsy. When Unified Police officers tested her, she blew a .053—just barely over the new legal limit.

But on her field sobriety test, Unified Police Detective Kyle Liddiard said she passed.

"At this point, I would not have had enough to arrest her for DUI, but there were signs of impairment," he said.

Kathy Stephenson, the food writer for the Salt Lake Tribune, gets the results of a breathalyzer test. (Photo by Ben Winslow, FOX 13 News)

Stephenson hit .05 after a second glass of wine, but on a re-test she went down to .047.

"It was a short up and a point down," said Detective Carrie Rigby.

On repeated breathalyzer tests, Stephenson flirted with .05 all night long. Opponents of the new DUI law have concerns that a mild social drinker could have only a couple of glasses of wine with dinner and wind up in jail.

For Stephenson, who is a petite woman, it appeared that is the case. But she also passed her field sobriety test.

"I feel good," she said.

Asked if she felt like she could drive, she replied: "Yes! That's the crazy thing! I think I could, but I'm so close to the limit. So it's a call for me, right? I think I have to always know: No, you shouldn't drive."

Gehrke kept drinking and at two cocktails (without dinner) blew a .025 and a .046.

"I'm feeling a little buzzed, yeah," he said, guessing his blood alcohol level at .06.

After his fourth gin and tonic, with metered shots over the course of three hours, Gehrke hit .05. However, he showed no significant signs of impairment on the field sobriety test administered by Unified Police.

Rank drank eight beers over the course of three hours and blew a .036.

"What? Point oh three six? No. That can't be right," said Officer Mikel Archibeque.

Retesting Rank, he blew a .039. At that point, Rank decided to stop drinking even though he never hit the legal limit. It was already more than he would typically drink, Rank said.

"It was over three hours and, not to be cocky, but it's Utah beer," he said.

The results:

FOX 13 photojournalist Mike Rank during an experiment testing the new .05 DUI law. (Photo by Ben Winslow, FOX 13 News)

Police emphasize that what you drink and what you blow on a breathalyzer do not matter, because all you have to show are signs of impairment for you to be pulled over.

"For enforcement, it's the same thing. We're looking to get impaired drivers off the road. So whether it's a .05, .08, .16, whatever number," Officer Archibeque said. "If we can show they're impaired, we need to get those impaired drivers off the road."

While restaurant and hospitality groups worry the new BAC level will hurt Utah by scaring diners away, police still do not anticipate an increase in DUI arrests when the law goes into effect. That's because they still hold to the standard of impairment that gets you pulled over in the first place.

"You've got to know your limits," Detective Liddiard said.

The best advice? Make a conscious choice to get a designated driver or a rideshare. Buzzed driving is still drunk driving, so always make the conscious decision to drive sober.

"If you're going to make those decisions to drink, make that decision to not drive," said Officer Archibeque. "Know that up front."