April 30, 2019
BY: RICHARD BERMAN
When it comes to a DWI, counting glasses of wine is a poor measure to determine dangerous behavior. Gender, weight, type of food consumed and time are all controlling and confounding factors. Rather, the standard should always be the actual level of impairment—an objective measure that uses blood alcohol concentration (BAC) levels and their expected impact on driving skills.
University and government funded studies in this area provide perspective on impairment levels. According to the University of Utah, for example, driving while talking on a hands free cell phone generates equal impairment compared to driving at the current national drunk driving standard of 0.08 BAC.
Consequently, if the legal limit were lowered in the state to 0.05 BAC, a driver will be charged with a DWI and subject to imprisonment, skyrocketing insurance costs, lawyer’s fees and fines totaling $10,000 for being far less impaired than driving while on a phone call.
And the consequence for a substantially more impaired talker? In California, it’s a $20 fine.
The second reason why lowering the legal limit to 0.05 BAC fails to make sense is that the typical drunk driver is usually drinking far in excess of the current 0.08 BAC limit. What logic or science supports the idea that tightening the definition of “drunk driving” will deter those who are already violating the current law? Would dropping the speed limit by five miles per hour make sensible drivers out of those presently considered reckless?
So who or what is behind the plan to lower the legal drinking limit? There is some evidence that the .05 issue is more of an anti-alcohol rant than one based on traffic safety. Specifically, the proponents can’t seem to find the right criminal to justify the law change. In California, the proposal to move to a .05 standard was triggered by a DWI fatality involving a driver with a 0.12 BAC—50 percent higher than the current arrest threshold. Would a .05 law have made a difference?
And Michigan’s recent .05 proposal follows a similar storyline. The legislation was introduced after a drunk driver caused a fatality with a registered BAC of 0.306. That’s six times the arrest level of .05. How would moving to a new definition of DWI have made any difference?
All the current and historical government statistics show that the moderate social drinker is not central to our DWI concerns. Yet that is where this proposed law focuses. You could put the drunk driving arrest level at anything above zero and there will still be drunk drivers just as there will be many other types of crimes committed irrespective of the law.
A better idea to advance traffic safety is to enforce the laws already on the books. Having a court imposed sentence for DWI that requires an ignition interlock makes sense when people drink to excess.
That would stop the worst criminals who have had multiple arrests. Yet even Utah, the only state to have passed a .05 law, has a disappointing record of enforcing their own law on interlocks—reporting a dismal 28 percent compliance rate. California is not much better.
It’s clear we need to do a better job of policing existing law before creating new ones.
DWI fatalities invoke angry passions, as do many other senseless crimes. But the answer won’t be found in the arrest of law abiding citizens visiting a tasting room.
When we pass a DWI law that puts millions of people at risk of arrest for little more than one glass of wine, it’s evident we have lost our sense of perspective on what is dangerous behavior. The established concepts of due process and proportionality in criminal penalties is also endangered. Unless of course we’re willing to put all those drivers on cell phones in jail. Richard Berman is the executive director of the American Beverage Institute.