Jared Austin, J.D. | Article

National Transportation Safety Board (Ntsb) Recommends States to Lower Bac from .08 to .05 for Duis

Recently the National Transportation Safety Board (NTSB) announced that they are recommending that all states lower the blood alcohol content from .08 to .05 to constitute drunk driving. They claim that drivers are impaired at that level and in order to reduce the number of alcohol-related crashes, the qualifying threshold needs to be lowered. But where have we heard this rhetoric before? Oh yeah, back in the 1980s when Congress practically coerced states to lower the BAC for drunk driving offenses to .10 less they lose a portion of their highway funds. The Supreme Court says Congress can pressure states to change or enact laws by withholding federal money under Congress’s “spending power” (although it would be more appropriately characterized as their extortion or coercion power). The battle cry was that states needed to lower the BAC in order to save more lives and keep the roads safer. Apparently, it wasn’t good enough because in the 1990s they embarked on another successful campaign to get states to lower the BAC requirement to .08 under the same battle cry. Now, in 2013 they are recommending it go even lower to .05 because .10 and .08 just isn’t keeping us safe enough (although they told us at the time it would). Would lowering the BAC to a point where perfectly safe social drinkers could face criminal conviction actually save more lives and keep dangerous drivers off the road? I think not.

As a Michigan OWI attorney, the problem I have always had with these DUI standards is that they never take into consideration the quality of the driving. Legislators enact these arbitrary figures which keep getting pushed lower and lower instead of focusing on whether the driver was actually impaired or not. Instead, with the BAC threshold, the driver is presumed to be under the influence regardless of whether they are or not. These standards don’t take into consideration that many people are perfectly capable of safely operating a motor vehicle at .08 or .10 or even higher. Instead, by lowering it 37.5% states will only be criminalizing responsible drinkers who will now have to bear the shame and expense of a DUI charge as well as potentially having their career and educational opportunities go up in smoke all because they had a couple drinks at the bar and drove home.

Another problem I have with this constant clamor of “we need to change the DUI laws” is that they never seem to conduct a cost-benefit analysis. Their usual response is the clichéd “you can’t put a price tag on safety” but will these new enactments actually make us safer? First of all, alcohol-related deaths are at an all-time low since 1982 while non-alcohol related traffic accidents have sky-rocketed by 78% during that same time span according to the National Highway Traffic Safety Administration (NHTSA). Furthermore, the NHTSA further states that texting while driving is now the leading cause of death and accidents among teens. Texting drivers are 23 times more likely to be in a crash that non-texting drivers. Texting is responsible for 3,000 deaths and 330,000 injuries a year according to a study by the Harvard Center for Risk Analysis.
Are drivers with a low BAC really the problem? The statistics resoundingly scream no. In 2011 less than 1% of traffic fatalities were caused by drivers with a BAC of .05-.08. The majority of crashes and fatalities involved drivers with a BAC of .15 or above. These are the drivers that legislation should be targeting and most states do with “Super Drunk,” “High BAC,” and “Aggravated DUI” charges with increasingly stiff penalties and many prosecutors have policies against plea bargaining on. If you are intoxicated and have an accident that causes an injury or death, prison is all but a guarantee. Ignition interlock and vehicle immobilization are imposed by many judges on High BAC cases or repeat offenders. These measures make sense. Criminalizing social drinkers doesn’t.

Among their list of recommendations, the NTSB wants an “automatic administrative suspension of your driver’s license” upon being charged with a DUI. In other words, when you are merely accused and (supposedly) presumed innocent, they want the government to automatically yank your driving privileges. Sounds like something that would happen in a totalitarian state doesn’t it? Whatever happened to “innocent unless proven guilty beyond a reasonable doubt?” I guess that Constitutional safeguard doesn’t matter. Michigan already confiscates and destroys your license upon being charged with an OWI offense and replaces it with a “paper license” until your matter is resolved which is tantamount to convicting you by being charged.

The NTSB and other drunk driving advocate zealots, don’t seem to realize (or care?) that the average DUI stop, investigation, and arrest can take over an hour, and often an hour-and-a-half to two hours. That’s time that law enforcement could have spent on the road tracking down impaired drivers who are an actual threat to the safety of others, instead of going after the 110-lb. female who had a couple glasses of wine with dinner. Not to mention clogging up the court dockets prosecuting people who are little to no threat to fellow motorists or pedestrians.

While implementing these recommends would probably be years down the road, it’s scary to think that it’s even a possibility being considered. If states want to protect the roadways, they should crack down on drivers with High BACs, repeat offenders, and drunk drivers who cause damage or injury to property or others. Better yet, enact stricter laws against texting while driving. If I had the choice of sharing the highway with someone with a BAC of .05 or a distracted texting driver, I’d opt for the former any day.