Lower DUI Thresholds More Dangerous?

Radley Balko

Kudos to the D.C. Council, which recently voted in favor of a resolution by Carol Schwartz, at-large Republican, to nix the District's unjust "zero tolerance" policy of allowing police to arrest motorists who register any alcohol at all after stopping them for other offenses.

The Schwartz resolution was inspired by an article in The Washington Post, which found that hundreds of D.C. residents had been arrested for driving under the influence (DUI) with blood alcohol levels below .05, including some at as low as .01.

The larger problem, however, is the fact that since 2000, the federal government has mandated a blanket .08 legal threshold for the entire country. We've now had five years of data to measure the effectiveness of the .08 standard, and the data strongly suggest that not only is the standard too low, but the resources we're expending to enforce it may actually be making our roadways more dangerous. Here's how:

When President Clinton signed the .08 law in 2000, every state was forced to either comply with the law or give up millions of dollars in federal highway money. Critics at the time pointed to numerous studies showing that motorists aren't significantly impaired at .08, and that in fact, most drunk driving fatalities occur at .15 or higher. Lowering the national standard from .10 to .08, then, was a bit like lowering the speed limit from 55 to 50 to catch motorists who zip along at 100 miles per hour.

In 1992, the Supreme Court gave its consent to random sobriety checkpoint roadblocks, despite conceding that they are probably a violation of the Fourth Amendment. Writing for the majority, Chief Justice William Rehnquist ruled that the threat to highway safety posed by drunk driving justifies suspending our constitutional protection from illegal search and seizure, as well as our Fifth Amendment right against self-incrimination. Drunk driving activists seized on the ruling and moved to employ roadblocks all over the country.

Critics of roadblocks and .08 predicted that (1) the lower standard would actually cause an increase in drunk driving deaths, as scarce law enforcement resources are diverted toward motorists who don't pose a real threat to highway safety and away from the "hardcore" drunks that do; and (2) these roadblocks will be set up under the guise of drunk driving, but will in effect become little more than revenue generators, as police use them to issue citations for any number of less serious infractions.

Both predictions have proven true. From 2000 to 2003, drunk-driving deaths began to inch upward again, after two decades of decline. In March of this year, the National Transportation Safety Board conceded as much in a newsletter, warning that, "Americans are more aware than ever before of the dangers of drinking and driving. Few realize, however, that drunk driving fatalities continue to rise -- and that thousands of them are caused by extreme or repeat offenders known as 'hard core drinking drivers.'"

The release noted that these hardcore offenders produce 40 percent of traffic accidents, but comprise just 33 percent of arrests. If we look at fatalities, the numbers are worse: People with a blood alcohol content (BAC) above .10 account for 77 percent of alcohol-related fatalities (the average drunk driving fatality involves a BAC of .17). In other words, motorists with very high blood alcohol levels account for an increasing percentage of highway fatalities, but a decreasing percentage of arrests. Of course, the federal government still doesn't get it. The top bullet point in the NTSB's press release's action agenda was to install yet more "frequent and statewide sobriety checkpoints."

Last year the number of alcohol-related fatalities went down a bit. But deaths actually increased in states that use roadblocks. The overall drop came almost entirely from the handful of states that don't use roadblocks. Roadblocks are designed to catch motorists who aren't driving erratically enough to be caught by conventional means -- and consequently, aren't as much of a threat. Given that the sites are generally well-publicized, hardcore drinkers know to avoid them.

Roadblocks have also turned into naked money-generators. A study of five Sacramento roadblocks found 22 suspected DUI arrests, but 315 citations and 215 vehicle confiscations for unrelated offenses. A newspaper account of a North Carolina roadblock reported 45 non-DWI offenses and just 3 suspected DWIs. A study of a recent San Diego roadblock found 1,169 stops, 27 citations, 10 vehicles impounded -- and one DUI arrest. Here in D.C., police have been criticized for keeping a database of personal information collected from all motorists stopped at roadblocks -- even those accused of no infraction at all. Many police departments have grown so frustrated with the process that they've given up roadblocks altogether, as well as the federal funding that comes with them.

The D.C. Council was wise to scrap zero tolerance. And given the control Congress exerts over the District and the millions in federal dollars attached to it, it's probably unreasonable for the council to scrap its .08 standard, too. But even the Schwartz bill gives police officers discretion to arrest motorists between .05 and .079, a level of impairment studies show to be lower than having kids in the backseat. The council should correct this error.

In the larger picture, Congress should revisit its blanket .08 standard. The evidence so far suggests that the lower threshold is not only targeting motorists who aren't significantly impaired, it may well be making our roads more dangerous.


Posted by permission of the author, Radley Balko, who is policy analyst at the Cato Institute in Washington, D.C. Originally published in the Washington Times on October 30, 2005.

Filed Under: Drinking and Driving