- - Monday, February 28, 2022

The laboratories of democracy, a phrase popularized by Supreme Court Justice Louis D. Brandeis to describe federalism, are in full swing across the country. One policy experiment some states are considering is lowering the legal blood alcohol concentration level for driving by 40%, from 0.08% to 0.05%. Dumbing down the definition of “drunk” will do little to improve traffic safety.

The policy distracts from the true threat, product abusers. Instead of addressing that issue, some states have considered putting responsible consumers in the crosshairs. The upside-down priorities are glaring.

Thankfully, Utah has been the only state to start arresting light drinkers. But now, the federal government in coordination with fervent anti-alcohol activists is trying to hoodwink the public into believing the change has been an astounding success. The hope is other states will follow.

The latest component of the persuasion campaign is a report published earlier this month by the National Highway Traffic Safety Administration. The 90-page report includes a daunting statistical analysis that provides a four-year snapshot of traffic safety trends in Utah. The banner finding is that road safety has improved in Utah because of their 0.05 BAC law.

When examining the full picture with some high school level statistics, e.g., correlation does not indicate causation, the Utah conclusion falls apart. Defining the term drunk to mean little more than a single glass of wine for some people is not defensible. And specifically in Utah’s natural experiment, the impact has been questionable at best.

Yes, Utah has experienced a drop in alcohol-related traffic fatalities since passing the 0.05 BAC law. But so have a majority of other states — all of which, besides Utah, retained the current 0.08 BAC standard. And some states at a 0.08 BAC standard enjoyed greater declines than Utah. A handful of bad apple states tarnish the national average, which makes comparing Utah to an average of 49 other states misleading.

How low is the Utah 0.05 BAC level? Government-funded studies indicate talking on a Bluetooth device in your car is substantially more dangerous than a driver at 0.05 BAC. Query: Should we start passing laws to arrest for DWT (Driving While Talking)? Should calling home come with all the baggage of a DWI conviction, including jail, thousands of dollars in fines and legal fees, and hiked insurance rates? If proponents of 0.05 were intellectually honest, they would answer “yes.” Most Americans would disagree.
It’s no surprise that officials are finding it difficult to prove the effectiveness of the 0.05 policy. People are simply not meaningfully impaired at that low BAC level. Even the past leadership of Mothers Against Drunk Driving openly expressed doubt and disinterest in the 0.05 BAC level. However, with a new board, why not move the goalposts when your agenda is more anti-alcohol than traffic safety.  

The average BAC of a drunk driver involved in a fatal crash in the U.S. is 0.16 BAC — double the current national 0.08 standard and more than three times Utah’s threshold. A 0.05 BAC law does nothing to address this core group of abusers. Resources would be better spent on additional roving patrols where law enforcement actively seeks out dangerously impaired drivers along with the other known problems of speeding and reckless driving.

In reality, progress in traffic safety is a result of national and state-based public messaging, improved driver education programs and smart legislating targeted at getting alcohol abusers off the road. Much of this was kicked off by the original conception of Mothers Against Drunk Driving several decades ago. Now, with a dose of positive peer pressure, Americans are continuing to become more cognizant of the consequences of their personal choices.

We also shouldn’t discount the positive effect of ride-sharing apps, including Uber and Lyft. For those who had too much to drink, we always applauded the responsible behavior of “calling a cab.” One working paper published in the National Bureau of Economic Research indicates these easily accessed rides are responsible for a 6.1% drop in alcohol-related traffic fatalities. But not everyone wants the added cost to a meal of a trip (both ways) only to avoid arrest for behavior presently considered responsible and legal.

Those who supported the passage of Utah’s 0.05 law are trying to justify a bad policy by taking credit for broad traffic safety trends. Lawmakers should resist the temptation; there are more effective strategies to save lives. But, to remain true to the concept of federalism, states always have the option to try, and fail while ignoring the facts.
• Richard Berman is president of Berman and Co. in Washington.

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