The .08 Debate

In mid-December 1997, an unusual news conference announcing an experiment involving drinking and driving was conducted in Salt Lake City. The meeting included volunteers actually consuming alcoholic drinks and undergoing tests.

Personality changes were obvious, of course, from the start of drinking. A simulated vehicle, equipped with a computerized monitoring system demonstrated the deleterious effects of alcohol beginning at the lowest blood-alcohol levels.

One young but obviously experienced drinker waxed candid for assembled new reporters. In doing so, he probably shed more light on the core of the drinking driver problem than we have previously seen with these scary words of wisdom. “I’m lucky to be alive.” He was quoted as saying. “But it’s not going to stop me from doing it again.”

In spite of having previously been a driver in an alcohol-related crash, he said he probably drinks and drives every weekend. At a 0.095% BAC level he felt he did well on the simulator. Monitoring technicians disputed his opinion citing deterioration in reaction time and other indicia of driving competence.

His rambling verbalization continued, “I know I shouldn’t do it. But 90% of the people who go to bars do it, and you’re not going to change them either. I know I could kill someone, [and/or] kill myself. But the possibility of me stopping is probably none.”

Apparently he and “90% of the people who go to bars” and most other drinkers have no fear of being stopped or arrested by the police. Further, the 1/10 of 1% who are arrested are likely seen as the victims of fate or a little bad luck.

This year will see a revival of a debate in Congress over what is the proper national standard of allowable blood-alcohol limit for adult drivers. Bills sponsored by Representative Nita Lowey of New York and Senator Frank Lautenberg of New Jersey would tighten the national standard of blood-alcohol concentration (BAC) for drinking drivers from the current 0.10% to 0.08. About 15 states now use 0.08%, but if the proposals become law, states not complying with this guideline will forfeit a percentage of federal highway construction funds.

Discussions on this topic are usually limited to cultural conception of “What is ‘drunk?” or “How do we know when a person is ‘too drunk’ to safely drive?” And, “How much punishment must we put on the books to make them afraid of the consequences?” Our inputs arise from a mind set of properly crafting the elements of the crime and appropriately designing and following through with harsh punishment. Yet, the experience of many other societies around the world strongly compel a different ( and more successful) philosophical, legal and tactical approach.

A report from South Africa, via the Reuters News Service, quoted “appalling” statistics that have a familiar ring because they are roughly equal to those of the United States, as a whole: “…estimates show that one in every 13 drivers have consumed alcohol, whereas only one in every 1,000 people is actually pulled over, arrested and prosecuted.” Making a huge difference in mileage death rates, however, is the fact that South Africa has a much greater problem with drinking pedestrian fatalities.

Some nations, on the other hand could teach us a great deal. According to professor E.B.R. Deshapriya, et al of the University of Tsukaba, Japan, in a 1996 article in Accident Analysis and Prevention, over the past 30 years, alcohol-related fatal traffic crashed in Japan (allowing no alcohol in a driver’s blood) have declined to approximately on in 20. The ratio in the Netherlands (0.05% limit) is one in 12, and in the U.K. (0.08% limit) it’s one in seven. In dismal contrast, the U.S. reported ratio nears one in two.

Roadside breath-sampling surveys during evening weekend hours in the U.S., Norway and Australia illustrate striking differences in the percentages of drivers at various blood-alcohol levels among the three countries. The table shows a drastic decline in the U.S. between 1973 and 1986 and appears to be plateauing in the 1986-96 era especially in blood-alcohol levels above .10%. There is ample evidence that Australia has made a great deal of progress since the 1988 surveys were conducted. But how it that Norway has roughly only one drinking driver where there are 10 in the United States in the uppermost BAC levels? What has Norway done that we might try to duplicate?

A major difference between Norway’s and the United States’ handling of the drinking driver problem is that Norway (as well as many other countries) has been able to create an immediate concern in the minds of potential DUI violators–the perception of a high risk of getting caught driving after drinking.

Any hope of deterring the drinker from driving lies in the ability of the police to instill a real fear (general deterrence) of getting stopped, detected and arrested through extensive, frequent and high-profile checkpoint activity coupled with random breath-testing and a meaningful—scientifically based—illegal, per se BAC level.

In November 1994, North Carolina police conducted three weeks of what is very likely the most ambitious and concentrated DUI enforcement effort in this nation’s history. The blitz involved sheriffs’ offices, the state highway patrol and local agencies. Officials referred to the program as “Booze It and Lose It.”

Police conducted 1,233 sobriety checkpoints, nightly, on weekdays and weekends between 10pm and 3am. A total of 3,858 motorists were cited for alcohol-impaired driving at checkpoints and by roving police patrols. In the pre-assessment phase 105 survey (non-arrest) checkpoints were held in 15 randomly selected counties.

After the intense three-week checkpoint enforcement phase, 45 survey checkpoints were conducted in the post-assessment phase. Surveys before the enforcement phase revealed that 2.4% of all drivers had BAC levels at or greater than 0.08%, North Carolina’s per se limit. In areas surrounding four major cities, approximately one driver in 50 (1.98%) was over the limit. In the post-enforcement surveys, there were 55% fewer drivers over 0.08%, less than one in 100. This great a drop in the percent of drivers over the 0.08% BAC limit is phenomenal—for the United States.

Victoria, Australia, on the other hand, in a recent year, as a result of aggressive random roadside breath-testing of drivers at police checkpoints, only one driver in 555 (less than 0.18 percent) was found to have a blood-alcohol level greater than 0.05%. Using checkpoint tactics, highly approved of by the state’s residents, Victoria’s police, bent on deterring rather than arresting large numbers of drinking drivers, breath-tested approximately one third of all the state’s registered drivers in a single year. Victoria’s percentage of illegal drinking drivers (0.05% BAC or higher) at the time of that particular exercise was about one-sixth the percentage in North Carolina (0 08% BAC or higher) after the most aggressive type of enforcement program within the United States to the present time.

Contrary to popular belief, Norway and other Scandinavian nations have not succeeded to the degree that they have by being far more punitive. Rather, compared to the U.S., they have the luxury of being able to be more punitive because—through successful deterrence—they have less than one-tenth of drinking drivers that we do. This was accomplished through much tighter laws and through extensive, well-publicized and high profile checkpoint tactics.

Norway adopted an illegal, per se, level of 0.05% in 1936. Sweden’s permissible blood-alcohol level for drivers is now 0.02%. Japanese law, 27 years ago, permitted a 0.05% level. But as of 1978, Japanese drivers are allowed no alcohol in the blood whatsoever.

By world standards (supported by scientific research, going back 60 years or more), the proposed 0.08% national standard, now being proposed in Congress—though a major improvement—is much too high and far too lenient. Unfortunately, a great majority of us think, which is often repeated by the news media and literature in general, that a state’s allowable blood-alcohol limit for adult drivers “defines drunkenness.” The word “drunk” is a label applied to conduct characterized by weaving, staggering, falling down, etc.

When it comes to driving a vehicle, however, even for the most experienced drinkers, impairment and rapidly increasing hazards due to alcohol begin at blood-alcohol levels far below the level where “drunkenness” is evident to any observer.

Opponents of the Lowey-Lautenberg proposal object primarily on the grounds that a reduction in the permissible blood-alcohol level for drivers would result in “responsible” patrons of restaurants, bars and clubs curtailing their consumption. The hint that it would constitute a replay of the days of liquor prohibition. Indeed, many advocates face derision befitting the likes of the legendary hatchet-wielding and bible-quoting Carry Nation.

An examination of per capita liquor consumption of states where allowable blood-alcohol limits have been set at 0.08% does not substantiate opponents’ predictions. Comparing the annual consumption of gallons of ethanol (in beer, wine and spirits) by persons 14 and older for the years 1977 though 1994 shows that consumption has dropped off considerably virtually all across the nation.

Per capita consumption of ethanol for the years 1977-94 reveals that lower BAC, per se, laws do not threaten consumption, that is, liquor profits. The overall average decrease for 0.08% states was 0.3633 gallons (46.5 oz. of beverages) per person, while the reductions of consumption in 0.10% states was 0.4080 gallons (52.2 oz. of beverages).

In 0.08% states the decline did increase very slightly (by approximately one half of a case of beer per person) in the years immediately after adopting the lower limit. Posting a valid cause and effect relationship between 0.08% laws, or any other law, and the decline in ethanol consumption is not possible. Most likely, both phenomena are influenced by a much more significant but immeasurable cultural drift.

Professors Deshapriya and Nobutada Iwase reported a study of the effects of lowering Japan’s legal BAC limit on alcohol- related fatal car crashes from 1960 to 1996. The authors reported a great increase in fatals in the 1960s. Public attention was focused on the problem in the mid-sixties, culminating in setting the maximum allowable blood-alcohol limit for drivers at 0.05% in 1970. In 1978 the limit became 0.00%.

The Japanese, far more conscious of “the good of society,” have wholeheartedly accepted the law which is strictly and effectively enforced. However, in those same three decades, the consumption of alcoholic beverages in Japan has essentially doubled. According to Deshapriya and Iwase, consumption is now about the same as in the U.S. and about half of that in France.

In a memo to the Legislative Assistant for Transportation Issues, the American Beverage Institute (ABI), se forth its logic regarding the Lowey-Lautenberg proposals. Their stance refers to the bill’s advocates as “special interestgroups.” The only “special interest” or “agenda” supporting the proposed law is the attempt to reduce alcohol-involved traffic crashes.

Do 0.08% laws “criminalize responsible social drinking,” as the ABI contends? Absolutely not. Neither do they “ignore the real problem.” A responsible drinker refrains from driving until all alcohol has dissipated from the body. Studies conducted by the Insurance Institute for Highway Safety show that the risk of being involved in a traffic crash increases exponentially, essentially doubling for every 0.02% of blood-alcohol. Reaching the 0.08% level takes three to six drinks in about one hour for most people. That’s stretching the definition of “responsible” social drinking.

Except for a few tiny nations, the United States, with regard to the national illegal, per se, BAC limit (0.10%) stands out as the most lenient of all nations of the world. In 1939, three years after Norway adopted the 0.05% standard, the American Medical Association gave its opinion that a person would be “under the influence” at a level of 0.15%. After about 20 years, most states had adopted 0.15% as a presumptive level. “Presumptive” meant that “under the influence” (guilt) was presumed but evidence to the contrary might be used to persuade a judge or jury otherwise.

Should the 0.08% level be accepted as our national standard? It should—but only if a more realistic standard of 0.04% or 0.05% is politically infeasible. In recent years lawmakers in Utah have wrestled with proposals to drop the limit from 0.08% to 0.04%. Success for the proposal faded, lost in a river of other major bills. But the debates were interesting. Objections to the proposed 0.04% law, were echoes of those in 1967 to the proposed 0.10% and 0.08% levels. Many felt it would mean extra work for the already over-burdened police. By this line of reasoning, returning to the 0.15% level or having no level at all would certainly mean less work; at least fewer arrests, plea bargains, and trials would occur. We wouldn’t have to clog the courts and jails with DUI offenders—until the incidence of DUI violations rose again to previous historic levels.

Over time, Norway’s experience has shown that the workload does not overburden the criminal justice system due to having a lower BAC limit. The percent of drivers over 0.10% BAC in 1986 was approximately one-tenth the same category in the United States. By far, the greater effect of general prevention was on the driving population of Norway, not on the police.

What are the reasons that we should adopt 0.04% for a national standard by 2000 as was strongly recommended by former Surgeon General C. Everett Koop? What is to be gained?

First, a 0.04% level would allow and provide a greater incentive for drinkers to more easily and accurately calculate their own blood-alcohol level, or, to ride in a cab or plan for a designated sober driver. A level of 0.04% can be attained by the average person with the proverbial “two beers,” two shot of spirits or wine glasses (easy to remember) in about one hour.

Second, scientific injury has shown that the driving-related abilities of all persons are measurably affected at 0.03% or less. A study by P. Zador, reported in the Journal of Studies on Alcohol, (1991) documented that a driver typically doubles the chance of being involved in a fatal crash for every 0.02% of blood-alcohol. According to Zador’s findings, at the 0.10% level a driver’s risk has increased approximately 32 times.

Scientifically derived information supports the claim that the percent of alcohol-involved traffic deaths is really somewhat higher than the 25 to 45% that official police reports—varying from state to state—indicate. Articles by Barbara Chapman and William A. Rouse, M.D., appearing in the March, 1985, issue of Pathologist, published by the College of American Pathologists, explored the question of whether official (police-gathered) reports of alcohol-involved fatal crashes were accurate. Data gathered from pathological testing of deceased drivers and pedestrians determined that alcohol-related traffic fatalities are woefully under-reported, nationwide. Additionally, the simple fact that, as a rule, only deceased drivers and pedestrians are tested for alcohol while surviving drivers and pedestrians generally are not, unless there are obvious symptoms, makes it impossible to know the true percentage of alcohol-related fatal crashes. Only when all deceased and surviving drivers and pedestrians are screened for alcohol regardless of fault will the real impact of alcohol-involvement be realized.

Our cultural approach or mind-set toward drinking and driving (as written in the law) allows a margin of tolerance (in the U.S. the widest margin of all). This is in interesting contrast of our legal tolerance to ignoring stop signs and other traffic violations. It would make just as much sense to change the law to accommodate rolling though a stop sign at up to eight or 10 miles per hour unless some special hazard could be proved. Likewise, while we fully acknowledge that all people’s driving skills vary drastically, all drivers are obliged to obey the same speed limits.

A lower allowable blood-alcohol level for drivers, along with highly publicized checkpoint enforcement, could substantially increase the perception of the risk of arrest. This factor is the key ingredient of far more successfully deterrence in Japan, Norway, Australia and others.

Finally, culture shapes law, but laws can also mold our beliefs. Fifty years after Norway, a nation of heavier drinkers that the U.S., adopted the 0.05% per se level, the strong influence of the general prevention phenomenon was made clear in 1986 surveys of Norwegian and U.S. drinkers. In time, as has happened in the past 30 years since dumping the 0.15% presumptive level, the realistic per se level of 0.04% would likewise become a definitive and powerful cultural staple.

But, in terms of deterrence and prevention, police enforcement practices are more important than establishing a lower allowable blood-alcohol standard for drivers. Police in many other countries are able to breath test drivers randomly. In essence, drivers are stopped after frequent checkpoints and asked for their license. Every driver stopped is required to submit a sample of his or her breath while remaining in the driver’s seat. What is success how and can it be measure? “Success” should not be seen as any number of arrests, as convictions, as substantial number of days in jail, nor as license revocations, etc. Success is prevention. In DUI enforcement, it is deterrence—creating a real fear of getting arrested at highly publicized, frequent, mobile and efficient police checkpoints. As reported from Victoria, Australia, and in roadside surveys in the U.S., success of deterrence can be measured by the percent of drivers over the per se BAC limit.

But the simple random testing method, an extremely crucial step in maximizing deterrence, is not available to U.S. police because of court mandates. A large percentage of U.S. judges, primarily state and lower federal courts, are still interpreting law and case based on the 1960s mind-set of micro-managing the police. The Fourth Amendment and similar provisions in state constitutions are interpreted by courts to prohibit random breath sampling for the purpose of prosecution. This thinking stems for a misguided legal culture that makes unavailable practical, logical and very crucial law enforcement procedures.

When weighted against the thousands of violent deaths and scores of thousands of accompanying injuries, should the chemical makeup of a driver’s blood or breath be considered a private matter? The odor of marijuana can justify searches of persons and vehicles. The sound of a faulty exhaust system can justify the police inspection of a vehicle. Go figure. (L&O;)

The .08 Debate by H. Wayne Overson; originally Published in “Law and Order” July 1998

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