- - Monday, May 8, 2017


The federal government is coming after your right to have a couple of beers at a ball game or split a bottle of wine at dinner. The first state to fall: Utah.

To recount, a major dust-up over drunk driving took place in the Utah state legislature several weeks ago. The instigator was the federal National Transportation Safety Board (NTSB).

One sympathetic side included the governor and a junior House member, Rep. Norman Thurston, who endorsed arresting and ruining the lives of people for driving with low amounts of alcohol — just a .05 blood alcohol content (BAC). Many people can reach that level after a little more than one standard glass of wine.

Why should you care about what happens in Utah with their known bias against alcohol consumption? Because in 1983, Utah became the first state to lower its BAC arrest level to .08. After many years and contentious fights surrounding drinking and relative impairment, all 49 other states followed suit. Admittedly, this copycat phenomenon was helped by the threat of losing federal money for a law that was aimed at the wrong people. As is often the case in politics, the desire to say “me too” — not informed judgment — was the impetus behind the momentum. That’s why it’s important to pay attention, even if it’s to Utah’s weird alcohol laws. (The state just repealed the ban on watching a bartender mix your drink.)

The NTSB — which has been looking to justify its budget since there are fewer train and airline disasters to investigate — spoke of dangerous impairment levels at the new .05 BAC arrest threshold.

For the uninitiated in the arcane world of blood alcohol levels, impairment is a term too loosely defined. Research indicates a .05 BAC while driving is considered less dangerous than talking on a hands-free cellphone or speeding. Research also shows .05 causes less impairment than being over the age of 65 — aka DWO (driving while older). Seniors beware. In the real world where most of us live, driving with a .05 BAC is not drunk driving at all.

So why did the law pass? Most elected officials are fearful of appearing soft on any activity connected to alcohol. Its part of our Puritan heritage. This position is supported by the reptilian area of our brains where logical thinking is nonexistent.

With friends in Utah and around the country, we (including my client, the American Beverage Institute) responded by launching an education campaign. Our ads played on the idea of Utah losing tourism dollars because of .05 — one of them warning, “Utah: Come for Vacation. Leave on Probation” with a picture of an imprisoned woman who had a single glass of wine at dinner. This reality has apparently hit a nerve. The governor’s office has also suggested the law needs some corrective tweaking in a special session this summer.

Even more bizarre is the Utah Highway Patrol’s about-face on the issue. It openly supported the new arrest law. It later announced it will not change its enforcement levels to seek out these newly guilty drunk drivers. According to Sgt. Todd Royce, “You have to have reasonable suspicion to have that person get out of the car to administer a field sobriety test.” Given that a .05 BAC isn’t associated with erratic driving, the position of law enforcement means that Utah legislators passed a law they will ignore.

But wait — roadblocks checking for drunks are popular with the police. When stopped in a random check, what if the officer smells alcohol. He can ask for a breath test. If you register .05-.07 (currently legal), are the police going to ignore the new law? The ramifications are too many for this opinion piece. This foolishness of passing laws only to ignore them has resulted in an embarrassment to all concerned. As Albert Einstein observed, “Nothing is more destructive of respect for the government and the law of the land than passing laws which cannot be enforced.”

The fact that the founder of Mothers Against Drunk Driving and many of the organization’s spokespersons have never taken the .05 bait should have been a warning to Utah legislators. The NTSB, which started this embarrassment by relying on discredited studies, should have spent more time doing its homework.

The governor should consider using the special session not to tweak the law, but to repeal it. As Supreme Court Justice Felix Frankfurter observed, “Wisdom too often never comes, and so one ought not to reject it merely because it comes late.”

• Richard Berman is the president of Berman and Company, a public affairs firm in Washington, D.C.

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