NTSB Endorses a .05 National BAC Standard

by Derek Simms on Mar. 14, 2016

Criminal DUI-DWI 

Summary: The NTSB is pushing for an even lower breath standard nationwide, but does the potential benefit outweigh the societal cost?

On May 14, 2013, the National Transportation Safety Board recommended that all 50 states adopt a blood alcohol content (BAC) cutoff of .05.  According to NTSB Chairman Deborah Hersman, “the research clearly shows that drivers with a BAC above .05 are impaired and at a significantly greater risk of being involved in a crash where someone is killed or injured.”  However, the only thing “clear” from the government’s own research is that this statement is a gross exaggeration at best, and an over-simplification of the issue.

First, it should be noted that in the 80’s, the national standard for BAC in the United States was .15.  That standard was based on scientific research by the National Highway Transportation Safety Administration (NHTSA).  Over the years, the standard has been incrementally lowered, first to .10 and most recently to .08. While states are technically free to decide the issue for themselves, the federal government has in the past threatened to withhold much needed federal highway funding from states that refuse to conform to the NHTSA standard.  But the effect of alcohol on the human body has not changed with time – a driver was just as sober at .08 in 1980 as they are today.  Yes, lowering the standard will save some lives, and at first glance, one might argue that if it saves even one life, it’s worth implementing.  But very few lives will be saved compared to the cost such a low standard would impose on the nation, in terms of both economic costs, as well as civil liberties.  For example, Congress could pass a law that all new vehicles must be equipped with front and rear side-curtain airbags.  If we did so, we would certainly save lives.  But such a mandate would drive up the cost of automobiles for consumers.  This is just one simple example.  As consumers, we routinely make this type of cost-benefit analysis in our everyday lives, and we expect public policy makers to make similarly wise decisions.

A .05 standard would have other costs as well. Take for example a case my firm has handled several times:  Client John Doe has worked as a commercial driver for 15 years.  He goes out with a friend on the weekend and has a couple of drinks.  He drives home late at night in his private passenger automobile and is stopped by police for speeding.  Once the officer approaches, the officer detects an odor of an alcoholic beverage and a DUI investigation ensues. John is arrested and charged with DUI.  A breath test reveals a BAC of .05.  Under the proposed standard, John would be charged with DUI, despite the fact that he was not driving in a reckless manner.  His driver’s license would be taken on the spot by the arresting officer.  John would have to pay hundreds of dollars to a bondsman to get out of jail. He would have to spend thousands of dollars to hire an attorney to get his license back so he can keep working as a commercial driver while he fights the DUI in court. If convicted, under Alabama law, John would lose his privilege to operate a commercial vehicle for one year, even though he wasn’t driving a commercial vehicle at the time of his arrest.  However, the State might as well take his commercial privilege for life, as John will never be able to find a job as a commercial driver again if he has a DUI conviction on his driving record, as no commercial insurance company will insure him.  John has lost his ability to provide for his family.  The money spent on his training as a commercial driver is lost. His personal auto insurance premiums rise dramatically for the next five years. Isn’t this too great a price to pay?

I do not expect DUI defense attorneys such as myself to come out in droves against the proposed lower standard.  After all, a lower BAC means more DUI arrests and more work for the DUI defense bar.  But laws, no matter how well-intended, have consequences for the John Doe’s of the world.  Washington bureaucrats should think long and hard about the unintended consequences of their actions before taking the next step down the slippery slope toward lower and lower BAC standards.

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