Abolish Drunk Driving Laws: If Lawmakers Are Serious about Saving Lives, They Should Focus on Impairment, Not Alcohol

By Balko, Radley | Reason, January 2011 | Go to article overview

Abolish Drunk Driving Laws: If Lawmakers Are Serious about Saving Lives, They Should Focus on Impairment, Not Alcohol


Balko, Radley, Reason


AUSTIN POLICE CHIEF Art Acevedo wants to create a new criminal offense: "driving while ability impaired." The problem with the current Texas law prohibiting "driving while intoxicated" (DWI), Acevedo explained to the Austin-American Statesman in October, is that it doesn't allow him to arrest a driver whose blood-alcohol content (BAC) is below 0.08 percent unless there's additional evidence of impairment.

"People sometimes focus on how many drinks they can have before they'll go to jail," Acevedo explains. "It varies.... A person may be intoxicated at 0.05, and you don't want them out driving." Acevedo wants to be able to arrest people with BAC levels as low as 0.05 percent, and he may have support for that idea in the state legislature. John Whitmire (D-Houston), chairman of the state Senate's Criminal Justice Committee, likes his idea.

Acevedo and Whitmire are right, though probably not in the way they intended. People do react to alcohol differently. For many people one drink may well be too many. Experienced drinkers, by contrast, can function relatively normally with a BAC at or above the legal threshold. A person's impairment may also depend on variables such as the medications he is taking and the amount of sleep he got the night before.

Acevedo's objections to the legal definition of intoxication highlight the absurdity of drawing an arbitrary, breathalyzer-based line between sobriety and criminal intoxication. But the right solution is not to push the artificial line back farther. Instead we should get rid of it entirely by repealing drunk driving laws.

Consider the 2000 federal law that pressured states to lower their BAC standards to 0.08 from 0.10. At the time, the average BAC in alcohol-related fatal accidents was 0.17. Two-thirds of such accidents involved drivers with BACS of 0.14 or higher. (The federal government classifies a fatal accident as "alcohol-related" if it involved a driver, a biker, or a pedestrian who had consumed alcohol, whether or not drinking actually contributed to the accident.) In 1995 the National Highway Traffic Safety Administration studied traffic data in 30 safety categories from the first five states to adopt the new DWI standard. In 21 of the 30 categories, those states were either no different from or less safe than the rest of the country. Once the 0.08 standard took effect nationwide in 200% alcohol-related traffic fatalities increased, following a 20-year decline.

Critics of the 0.08 standard predicted this would happen. The problem is that most people with a BAG between 0.08 and 0.10 don't drive erratically enough to be noticed by police officers in patrol cars. So police began setting up roadblocks to catch them. But every cop manning a sobriety checkpoint aimed at catching motorists violating the new law is a cop not on the highways looking for more seriously impaired motorists. By 2004 alcohol-related fatalities went down again, but only because the decrease in states that don't use roadblocks compensated for a slight but continuing increase in the states that use them.

These constitutionally dubious checkpoints have become little more than revenue generators for local governments. When local newspapers inquire about specific roadblocks after the fact, they inevitably find lots of fines for minor infractions but few drunk drivers. In 2009, according to a story at the investigative journalism site California Watch and data from the University of California at Berkeley, 1,600 sobriety checkpoints in California generated $40 million in fines, $30 million in overtime pay for cops, 24,000 vehicle confiscations, and just 3,200 arrests for drunk driving. …

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