From ‘Not Impaired’ to ‘Drunk’ – With a Stroke of the Pen

The National Transportation Safety Board (NTSB) wants states to make major changes to their drunk driving laws. In a new safety report, Reaching Zero: Actions to Eliminate Alcohol-Impaired Driving, the NTSB has published a wish-list that includes

reducing the per se blood alcohol concentration limit for all drivers; conducting high-visibility enforcement of impaired driving laws and incorporating passive alcohol sensing technology into enforcement efforts; expanding the use of in-vehicle devices to prevent operation by an impaired driver; using driving while intoxicated (DWI) courts and other programs to reduce recidivism by repeat DWI offenders; and establishing measurable goals for reducing impaired driving and tracking progress toward those goals.

What got everyone’s attention was the first item: reducing the per se blood alcohol concentration. The “per se blood alcohol concentration” is the magic number that makes it criminal to drive. Right now, every state in the union has that number set at .08 percent. The NTSB wants to make it .05.

Dozens of countries have already implemented the .05 standard, according to a table available through the International Center for Alcohol Policies’ ‘Drinking and Driving’ webpage. These include such diverse places as Cambodia, Israel, Denmark and Peru. Many countries have even lower tolerances. In Lithuania, for instance, the standard is .04; in Japan it’s .03; in Norway it’s .02; and in Algeria it’s .01.

Would lowering the per se blood alcohol concentration (BAC) really reduce the number of fatalities on our roads? It’s hard to say, as we’ll see below.

Looking at a table prepared by the National Highway Traffic Safety Administration (NHTSA), found at page 89 of the safety report, it appears that, nationally, 5 percent of fatal accidents involved drivers who had a BAC of between .01 and .07. The table doesn’t tell us how many of these were in the .05 to .07 range. Nor does it tell us whether the accident resulted from impairment.

A graphic from the New York Times, however, which also seems to be based on NHTSA figures, breaks down alcohol-related accidents by the age of the driver and time of day. It’s much more precise when it comes to the BACs involved although, again, it doesn’t specify which accidents – if any – were caused by any alleged impairment. The Times does conclude, based on the numbers, that young drivers (from the ages of 16 to 26) are much more likely to be involved in fatal low-BAC accidents than older drivers are.

Where does New York stand on these issues? We’ve noted before that it’s criminal to drive with a BAC of .08 or greater. It’s illegal (but not necessarily criminal) to drive while your ability is impaired by alcohol. There is no per se level of impairment. Our courts have ruled that any level of impairment violates the law. However, a statute does lay out some ground rules for determining impairment.

Ironically, given the NTSB’s new recommendations, a BAC of .05 is currently prima facie evidence that you are not impaired. A BAC of .06 is ‘relevant’ (but not prima facie) evidence on the question of impairment. A BAC of .07 is prima facie evidence of impairment. But it’s also prima facie evidence that you weren’t intoxicated.

If New York accepts the NTSB recommendation and amends its Vehicle and Traffic Law accordingly, the whole statutory scheme will be turned upside down: .05 will cease to be prima facie evidence that you aren’t impaired. Instead it will be intoxication, per se!

Where do other players stand? Not surprisingly, the people who sell drinks to drivers aren’t happy with the NTSB’s new proposals. As an article in the Guardian points out, a woman who weighs less than 120 pounds could reach .05 after just one drink. So, under a .05 standard, a single glass of wine with dinner could be a major problem.

The American Beverage Institute, which represents restauranteurs, has called the proposal ‘ludicrous’. The Institute argues that ‘over 70 percent’ of fatal accidents (that involve drunk drivers) involve drivers with a blood alcohol content of twice the current legal limit. According to Sarah Longwell, its managing director, “we lowered our legal limit from 0.1 percent after groups like Mothers Against Drunk Driving assured the country that, based on all the science, 0.08 BAC was absolutely, unequivocally where the legal threshold should be set for drunk driving.” Ms. Longwell then asks “has the science changed?”

Well, yes, the NTSB would counter. It has. Since the 1990s, when the push to lower the limit to .08 began, at least four new studies have come out – summarized in the attached table (at page 19 of the new safety report) – showing signs of impairment at .01! At .01, according to the table, more than 50 percent of drivers begin to get drowsy, and deficits begin to appear in psychomotor skills, the ability to perform cognitive tasks, and tracking. By the time you reach .05, your reaction time may be increased and you’re having problems with perception and visual functions.

The bottom line? Driving is unsafe at any BAC.