An argument for prioritizing drivers above the current illegal limit in the United States

In the United States, it is per se illegal for a person to drive with a blood or breath alcohol concentration (BAC) of 0.08 or higher even if the person is not impaired. It is also illegal for a person to drive while impaired by alcohol even if the person's BAC is below 0.08. Fell & Voas would go further. They argue that ‘the risk of being involved in a crash of any severity increases at each positive BAC level’ and that the illegal limit should be lowered to 0.05. In 2005, when this author was Mothers Against Drunk Driving (MADD) National Director of Public Policy, a Washington, DC councilman made the same argument. This author disagreed with him then and disagrees with Fell & Voas 1 now for a host of reasons, some of which are discussed below. First, there is a significant difference between encouraging the safest possible course of action and criminalizing behavior that is not unreasonably dangerous. Fell & Voas correctly note that driving after drinking any amount of alcohol increases risk of crash. However, that does not mean that we should prosecute people who drive with BACs between 0.05 and 0.08 and brand them as criminals. Driving with a BAC between 0.01 and 0.08 is not significantly more dangerous than driving while talking on a cellular telephone 2, speeding more than 10–20% over the speed limit 3 or any one of a number of non-criminal driving-related activities 4. Drivers with BACs between 0.05 and 0.08 are not nearly as dangerous as those with higher BACs. There is a large body of research on relative crash risk that reveals that risk rises disproportionately to BAC. The relative risk of a driver over the age of 35 with a BAC of 0.05 to 0.07 being involved in a fatal crash is approximately 4.03. However, the relative risk of the same driver with a BAC of greater than 0.15 being involved in a fatal crash is 111.94 5. In 2011, 9878 people were killed in crashes involving at least one driver with a BAC of 0.08 or higher 6. In that same year, 1633 people were killed in crashes where a driver's BAC was between 0.01 and 0.07 6. Drivers with BACs at or above the current illegal limit remain the primary threat to public safety and demand our attention. Secondly, a 0.05 illegal limit is unenforceable using current methods in the United States. The utility of a criminal law depends largely upon its enforceability. Indeed, as Fell has acknowledged, deterrence ‘is a function of the perceived probability of apprehension, the severity of the resulting sanction and the swiftness with which the penalty is administered’ (7, p. 437). The current standardized field sobriety tests (SFSTs) allow officers to accurately and reliably identify people above and below the previous 0.10 illegal limit and the current 0.08 limit 8-11. These tests were not designed, and are not sensitive enough, to allow officers to identify drivers with BACs between 0.05 and 0.08 8-11. Fell & Voas argue that the horizontal gaze nystamus (HGN) test is ‘just as valid at 0.05 BAC as it is at 0.08 BAC and 0.10 BAC’ and suggest that officers can enforce the proposed 0.05 law by arresting drivers based upon HGN test results alone. However, their suggestion is simply not feasible. Officers do not rely currently on any one sign, symptom or test to identify impaired drivers at roadside. Rather, they assess the totality of the circumstances 12. The rationale is simple: none of the sobriety tests, including HGN, are specific to alcohol. In fact, commonly prescribed depressants, inhalants and dissociative anesthetics cause HGN 12. Thus, unimpaired people taking certain legally prescribed medications are likely to ‘fail’ the HGN test. If officers arrested drivers based on HGN test results, they would arrest scores of innocent people. Further, none of the sobriety tests are accurate enough to be used in isolation. In fact, McKnight's own studies show that officers using the HGN test in isolation misidentified 38% of subjects below 0.04 BAC 13. The criminal justice system simply cannot permit error rates that high. Additionally, approximately 20% of DUI arrestees refuse to provide evidential samples for testing 14. It is difficult for this author to imagine that the government would win a significant percentage of cases where drivers were arrested based upon HGN test results alone without an accompanying evidential breath test, especially those who have demonstrated minimal or no impairment on the other sobriety tests. Finally, many drivers with BACs between 0.05 and 0.08 at roadside will test below 0.05 when given an evidential test at the police station. People metabolize the equivalent of 0.10–0.35 per hour (approximately one to two ‘standard drinks’) 15. Due to the length of time that it takes officers to administer roadside examinations and transport suspects to a station, DUI subjects typically are not tested on an evidential instrument until an hour or longer after being stopped. Consequently, a person with a BAC of 0.08 or lower at the time of driving is likely to test under the proposed illegal limit. Thirdly, government agencies have limited resources and, in the current fiscal climate, must ‘do more with less’. In all likelihood, the more time officers and prosecutors spend investigating, arresting, processing and prosecuting drivers between 0.05 and 0.08, the less time they can devote to the greater threat to public safety—high BAC and repeat impaired drivers. Assuming arguendo that a 0.05 law would significantly increase the number of DWI arrests, it would also add to an already overburdened justice system, further delaying case resolution and undermining deterrence 16. Not surprisingly, the Traffic Injury Research Foundation (TIRF) reported that fewer than half of Canada's Crown Attorneys (40%) supported lowering the illegal limit to 0.05 for these reasons 16. When drivers with BACs over 0.08 are killing more than 9000 people a year on American roadways, we are simply not situated to siphon off precious resources to address a much less dangerous cohort of potentially impaired drivers. In summation, this author is skeptical that lowering the illegal limit would solve more problems than it has the potential to create, and would rather see the limited resources available to justice officials used to improve the detection, apprehension, prosecution and sentencing of people who drive at or above 0.08 and/or with drugs in their systems. I am a former prosecutor and former MADD National Director of Public Policy. I continue to advocate on criminal justice issues and work through four national non-profits, including the National Partnership on Alcohol Misuse and Crime. NPAMC has accepted donations from Beam Global and The Century Council, as well as Smart Start, Inc. (manufacturer of ignition interlock and breath testing devices) and Alcohol Monitoring Systems, Inc. (manufacturer of breath testing and transdermal testing devices). I also represent DUI crash victims in court and defend dram shop cases.

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