Every couple of years, the National Traffic Safety Board proposes new ideas to make the public highways safer. Their number 1 target always seems to be people who consume alcohol and get behind the wheel. Usually, their top proposal pet project is lowering the states’ legal drinking limit, in order to discourage citizens from putting themselves and others at risk by getting behind the wheel after consuming alcoholic liquor. While their intentions may be noble, unfortunately, these magnificent bureaucrats seem to be moving backwards to a new and confusing era of alcohol prohibition. In 2003, federal highway funding to the states was contingent upon the states lowering the unlawful bodily alcohol level from .10 to .08. All but a few states chose to lower their limit to .08 because the alternative would have been losing billions of dollars in highway funding. How else were the citizens of their state supposed to pay for road improvements without federal funding?
But I did not have any issue with Michigan lowering the limit to .08 back in 2003. Why? Because at least it was supported by hard data suggesting that a level of .08 was indicative of impairment in the average person. Furthermore, studies showed that an individual’s poor performance on at least two out of three standardized field sobriety evaluations gave officers an excellent indicator – somewhere around 80-90% – that the subject was at or above the unlawful limit of .08.
The most recent proposal by NTSB to lower the limit to .05 is troubling, to say the least. They have offered no data supporting the proposition that this level is indicative of impairment. So, without further adieu, here are my five reasons why lowering the legal limit to .05 is a bad idea:
1) It’s a Slippery Slope to .01
Like a game of limbo, this will become a question of, “How low can you go?” It seems, given recent trends, the NTSB and other national organizations bent on making these laws even tougher than they already are will stop at nothing to make drinking and driving a strict liability crime. Which means eventually, they will be proposing that if you have any alcohol in your system, you are committing a crime. Which raises troubling implications for those who consume wine at church, those who have a glass of wine with dinner, even those who had a beer several hours prior and the alcohol had been completely eliminated from his body. One can hardly say that an individual should lose his freedom, career, driver’s license, and livelihood as the result of drinking one glass of wine at dinner, or having so much as a single flute of champagne at a wedding. Furthermore, if gone unchecked, these agencies soon will be seeking to proscribe driving with the presence of any amount of any controlled substances, including those which are lawfully prescribed by your doctor. This is a slippery slope that eventually could lead all the way down to a .01 as an unlawful level. That’s half a beer. And that is certain to brand more law-abiding citizens as criminals. If we allow our government to continue to restrict our freedoms, these freedoms to make responsible choices may be eliminated entirely. This is a very slippery slope.
2) It’s a Solution Without a Problem
The NTSB has yet to identify the problem with keeping the current limit of .08. Indeed, .08 can hardly be considered a high BAC, especially in light of the fact that only 13 years ago, the limit was .10. It appears NSTB is offering a solution without a problem. I do not mean to suggest that there is no correlation between impaired driving and fatalities. Indeed, credible scientific studies suggest that certain individuals experience some impairment at as low a level as .02. But a reasonable person could hardly argue that the unlawful limit should be reduced to .05 simply because a very select few individuals may experience impairment at such a low level (after two drinks). Even NTSB admitted that, “the amount consumed and crash risk is not well understood.”1 They further stated, “We need more and better data to understand the scope of the problem and the effectiveness of countermeasures.”2
3) Difficulty of Enforcement
Police officers have become accustomed to investigating persons suspected of operating while intoxicated using the .08 level as a way to gauge whether a person is under the influence or impaired. They have become accustomed to utilizing standardized field sobriety tests to determine whether they have reasonable suspicion that the driver is at or above the unlawful level of .08. If the level is reduced to .05, all officers will need to have their investigative tools (field sobriety tests) titrated to this new level. Unfortunately, if the threshold is reduced to .05, for many people, this represents approximately 2.5 glasses of wine, 2.5 twelve ounce beers, or 2.5 shots of liquor. So if you admit to the officer that you had two pints of beer, doesn’t the officer already have reasonable suspicion to believe you are at or above a .05, and run you through a series of field sobriety tests, even though they have no reason to believe you are under the influence? SO then, with a level of .05, there may not be any point to using field sobriety tests if they are ineffective as a measuring stick. The enforcement of the .05 limit would be difficult – if not impossible – for the officer to enforce. Additionally, every patrol officer will need to receive more training, which is a cost that will be borne by the citizenry.
4) Branding More People Criminals
Is it better for society to pass a law that will have little benefit to the public and brand more people as “criminals”? Of course not. The common misconception is that an OWI conviction is not that big of a deal. But it’s a huge deal. If you or a loved one is charged with a DUI, you absolutely must hire an experienced attorney in this field. Why? Because in addition to the criminal conviction, there are dozens of other harsh consequences associated with DUI: jail time, heavy fines, driver’s license sanctions, professional license sanctions, restrictions on interstate or international travel, loss of employment, motor vehicle immobilization, skyrocketing insurance rates. And did I mention if you are convicted, you will have a criminal conviction for the rest of your life? That’s right, until you die. Many people don’t realize that an alcohol related driving conviction can never be erased from their record. Sure, the points will fall off of your driving record after two years, but the conviction stays. And you cannot get a DUI set aside (or expunged) from your permanent record. That’s because Michigan’s expungement law, MCL 780.621, forbids a person from even asking a court to erase a traffic offense from their record. And guess what? – in Michigan, OWI is classified as a traffic offense. (Get this: you can get a robbery conviction erased with the court’s permission, but not a drunk driving conviction that you got 25 years ago. If that sounds ridiculous, it is. But it’s still the law in this state.) Perhaps the legislature should allow for the expungement of a DUI conviction with the court’s permission, and keep a non-public record so repeat offenders can still get charged with enhanced penalties for their recidivism. This would seem to have a more positive impact on the citizenry than placing a burdensome and arbitrary limit of .05. A drunk driving conviction is a permanent stain on what may be an unblemished record. It will follow you to the grave. All beacuse you may have had two glasses of wine with dinner, and ran into an overzealous officer, an aggressive prosecutor, and a judge who may presume you are guilty rather than innocent.
5) It’s Always About the Money
You can expect that with this bold proposal will come a number of special interest groups looking to make money from it. Unfortunately, the cost will be borne by the average citizen. Those who will profit most: police, who by law are permitted to recover their labor costs associated with your DUI arrest; prosecutors, who by law are permitted to recover their labor costs in prosecuting you; the courts, whose sobriety court programs and probation departments have become expansive and overbearing; the State, whose driver’s responsibility fees reach between $1,000-$2,000; the lawyers, this goes without explanation; and last but not least, ignition interlock companies who are looking to profit from the judge or the state ordering a breathalyzer to be permanently installed in your vehicle.
In conclusion, lowering the unlawful to .05 is a bad idea, for a number of reasons. I certainly hope this article brought some awareness to the fact that the government will continue to push new laws that further restrict our liberties. This is just one example. We can remain sensitive to those persons whose lives have been shattered at the hands of a drunk driver while remaining vigilant in the face of an overbearing government seeking to further restrict our freedoms. But we have to pay attention to this issue, and we have to know when to say when. Whether we are talking about how many drinks a person consumes, or how far we allow our government to push us in the wrong direction.