Combating Drunk Driving Without Compromising Liberty and Safety

(This article originally appeared on Virginia Politics on Demand on May 28, 2013.)

This past Memorial Day weekend marked the start of the summer driving season, and with it came warnings about drunk driving and other traffic hazards.  As Hoai-Tran Bui reported for WTOP radio in Washington:

Memorial Day weekend is one of the most dangerous holidays of the year for drivers.

Kurt Erickson, with the Washington Regional Alcohol Program, says there's a significant increase in drunken driving deaths during Memorial Day weekend.

In 2011 (the latest year that data is available), 406 people lost their lives nationwide during the three-day weekend, according to the National Highway Traffic Safety Administration (NHTSA).

"Forty percent of all traffic fatalities that happen in this country over Memorial Day were actually caused by drunk drivers," Erickson says. "That compares to 31 percent during the other parts of the year."

The good news in Virginia is that, overall, Memorial Day traffic accidents declined this year, according to Doris Taylor at WTKR-TV in Hampton Roads:

Officials say the state of Virginia had a major decline in fatalities on Memorial Day Weekend this year. They investigated about 620 crashes that resulted in 141 injuries and 7 deaths.

The number of deaths dropped into the single digits this year, the first time since 2009.

Preliminary reports show that seven people lost their lives this weekend in traffic accidents all over the state including one in Newport News, Carroll County and Southampton.

Police also stopped 11, 9900 [sic] speeders and 2,609 reckless drivers. Officers were able to arrest 137 drunk drivers.

These statistics arrive in the context of a recent call by the National Transportation Safety Board (NTSB) to revise the definition of drunkenness for purposes of arresting drivers who are "under the influence."

With the utopian goal of "reaching zero" drunk-driving fatalities, the NTSB recognizes in a report released May 14 that

the number of lives lost annually in alcohol-impaired-driver-related crashes declined 53 percent, from 21,113 in 1982 to 9,878 in 2011; and the percentage of highway fatalities resulting from alcohol-involved crashes is down from 48 percent in 1982 to about 31 percent today.

Despite this notable record of success over the past three decades, however, the NTSB recommends that, although "the majority of alcohol-impaired drivers in fatal crashes have BAC levels well over 0.08,"

the 50 states, the Commonwealth of Puerto Rico, and the District of Columbia establish a per se BAC limit of 0.05 or lower for all drivers who are not already required to adhere to lower BAC limits.

The Chicago Tribune's Steve Chapman explains the practical effect of adopting this recommendation:

From the standpoint of individual behavior, that would be a significant change. A 180-lb. man could be legally impaired if he had three drinks in an hour (versus four drinks today) while a 140-lb. woman could earn a set of handcuffs with just two drinks in an hour (compared to three under the current rule).

Some 20 years ago, when the Virginia General Assembly was considering a bill to lower the blood alcohol concentration threshold for drunk driving from 0.10 to 0.08, I testified before the Senate Courts of Justice Committee (then chaired by Arlington Democrat Edward Holland) alongside Candy Lightner, the founder of Mothers Against Drunk Driving.

We both argued against a change in the law, pointing out that revising the technical definition of impairment downward would simply redistribute law enforcement resources without actually preventing any drunk-driving incidents. Lightner said that educational efforts and changes in the culture -- that is, changing people's attitudes about the acceptability of driving while intoxicated -- would be more effective.

Lightner also said:

Half of the drinking drivers involved in fatal crashes have a BAC of 0.17 or greater. Even among young people aged 16 to 24, the great majority of deaths involve drinkers with a BAC of at least 0.15 percent. Lowering the blood alcohol content won't make a difference to these offenders.

I drew on research that probably still holds true:

Minnesota Judge Dennis Challeen, who over the past 30 years has sentenced hundreds of people for DWI violations, agrees with Lightner. "Most drunk driver fatalities," he notes, "have BAC levels close to 0.20, twice the legal limit. If lawmakers reduce the limit to 0.08, they are simply catching more of the wrong people, the people who are not the problem."

Judge Challeen further argues that stricter laws will be ineffective because those who do not need to be sanctioned -- law-abiding citizens and responsible drinkers -- are most likely to be "self-correcting," while chronic drunks and scofflaws are least likely to respond to harsher penalties.

The fact is, by changing the definition of drunkenness, we enable the police to arrest more people. That may seem tough, but the effect is clogging the courts with people who are not really the problem, creating conditions whereby truly dangerous people are let off without punishment so that we can make room for the minor offender.

The author of Confronting Drunk Driving, Professor H. Laurence Ross, estimates a potential increase of 60 percent of DWI arrests under the new definition with the possibility of no decrease in fatalities. "Adoption of 0.08 percent BAC has not to date been accompanied by any comparable new investments in police resources," Dr. Ross reports, "thus diluting an already inadequate control system. The effect may well be to reduce the chances of any impaired drivers being arrested."

Candy Lightner argued then that

Rather than put our limited resources into laws that fail to address the real problem, we need better enforcement of existing laws and proven policies that have demonstrated a significant impact... If we really want to save lives, let's go after the most dangerous drivers on the road. Putting our trust in new laws and regulations that only address the tip of the iceberg will not make our highways safer.

That point is echoed by Steve Chapman in his reaction to the NTSB's most recent recommendations:

Under a tighter BAC, the same number of cops will be chasing a lot more offenders. An officer who is busy arresting someone with a .05 level, who poses a small danger, will not be able to arrest someone with a .10 or .15 level, who poses a huge danger....

It may come as a surprise to hear that the organization that deserves much of the credit for raising public awareness of the problem, Mothers Against Drunk Driving, has declined to endorse this proposal. It prefers to focus on greater efforts to enforce existing laws, while requiring ignition interlocks for every DUI offender.

NTSB acknowledges this last policy would save some 1,100 lives per year -- far more than a lower BAC would save. It also has the virtue of disabling the few guilty without inconveniencing the many innocent.

In a free society, trying to reach zero carries too high a cost. Better to settle for making progress.

Utah was the first state to change its BAC definition to 0.08 in 1983. Other states followed slowly on their own initiative, but it was federal carrot-and-stick incentives that eventually forced the rest of the country into uniformity, regardless of the effectiveness of the legislation on solving the problem it purported to address.

While we will hear protests from state capitals -- including Richmond -- against the NTSB's most recent recommendations, it won't be long before Congress acts and threatens to withhold federal highway funding from any state that does not go along with the proposal. It's only a matter of time, and it won't save any lives or property.