Lowering the legal BAC to .05 is the wrong move

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Drinking - Harmon, Smith & Vourvoulias L.L.C.There is no question that everyone in America would like to reduce the number of drunk driving accidents and fatalities that occur on the road each year. In the past thirty years, our country has made great strides toward this goal—reducing drunk driving fatalities by half, from 20,000 to 10,000 per year, according to MADD.

Continuing the fight against driving while intoxicated, the National Transportation Safety Board (NHTSA) recommended last month that all states reduce the legal blood alcohol content (BAC) from .08 to .05.

Of course, the fact that we’ve cut drunk driving deaths in half doesn’t mean we can now rest on our laurels. But the new way in which the NHTSA intends to fight drunk driving is misguided. A recent editorial in USA Today gives several reasons why this is the case.

Reducing the legal limit would turn responsible social drinkers into criminals. It takes surprisingly few drinks to hit the legal BAC limit as it currently is, and it would take even fewer to hit the proposed .05 limit: a 170-pound man could have a .05 BAC by drinking just three glasses of beer or wine in one hour. For a 137-pound woman, the number of drinks drops to two. Having one or two glasses of wine at dinner with friends is hardly criminal behavior.

We also need to ask, why .05? This would widen the net to prosecute people with a lower BAC, but are these people really the problem? According to the National Transportation Safety Board, drivers whose BAC measured .05 to .08 represent only 8% of drivers involved in fatal accidents. It is critical to note that this statistic only states that these drivers were involved, not that alcohol impairment caused the accident.

Safety advocates have pointed to European countries with lower fatalities and a .05 legal limit. But as USA Today notes, drivers “face huge fines or frequent sobriety checkpoints, so it’s impossible to credit the .05 BAC limit for the decline.”

The editorial proposes expanding the use of ignition interlock devices, citing success in states including Arizona and Louisiana. Unfortunately, ignition interlock devices have their downsides as well: they are extremely expensive for both the individual convicted of drunk driving and the state. They are also prone to error. A recent Seattle Times article reported that “false positives” are an issue. According to the Seattle Times, an ignition interlock device can register a high BAC if the driver used mouthwash (which contains alcohol), ate certain foods, or even took certain types of medicine.

Instead of arresting social drinkers who consume alcohol responsibly or rely heavily on the use of devices that can be unreliable, we should try investing in increased driver education. (You can read the merits of this approach in an earlier blog post.)


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By George Vourvoulias

George is a founding member and managing member of Harmon, Smith & Vourvoulias L.L.C., a New Orleans law firm. George concentrates his practice in maritime personal injury, construction litigation, personal injury, workers' compensation, medical malpractice, and DUI defense. George Vourvoulias's Google+ Profile