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I agree with the premise that a breathalizer is not a valid measure of intoxication, but i do believe it is an accurate measurement tool of alcohol consumption. For example, i've seen people who are perfectly functional in divided attention tests, but will still blow a .10 or higher, and i'm pretty sure that personally, i'd be impared with as low as a .04 BAC.
In Oregon, and i'd venture a guess that many other states, there are actually two elements in a DUII arrrest. First the criminal side for the act of driving while intoxicated, and second the civil license suspenditure.
For the first, regardless of BAC, the officer must prove imparement. For the second part, the BAC is the deciding line.
I've personally seen cases where a criminal dui charge stuck, even when the BAC was under .08. Their license, however, was not suspended as part of the process because they wern't over the legal limit as it pertains to the civil suspenditure.
A double standard for minors (trace+) and adults (.08BAC) in this situation makes complete sense, since minors are not supposed to be drinking at all, their license is subject to suspenditure at any amount. Adults, however, should not be drinking to excess, and .08 is a good measure of that. But for the actual DUII Charge, imparement must be proven for both a minor and adult, and the measure of imparement is the same for adult and minor.
There is no difference between minor and adult when making the initial arrest, both cases must show imparement. The actual BAC only influences the civil license suspenditure and not the criminal portion of the arrest.
I've personally had stops where i knew the driver would blow over a .08, but i still didn't make the arrest because i could not articulate the imparement -- they were just functional drunks.
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