TCS Daily

Drinking and Legislating

By Radley Balko - March 24, 2005 12:00 AM

When President Clinton signed a law in 2000 that lowered the federal blood-alcohol limit for drivers to .08, opponents pointed out that the effect of such a law would be to tie up law enforcement resources going after motorists between .08 and .10, motorists who studies show are no more impaired than someone talking on a cell phone, or who has kids in the back seat.

Soon enough, Mothers Against Drunk Driving and the National Highway Transportation Safety Administration launched a national campaign to encourage states to adopt roadblock-sobriety checkpoints aimed at going after exactly those drivers. Roadblocks are by design intended to catch those motorists who may be a hair above the newly-lowered legal limit, but aren't driving erratically enough to get caught by cops on routine patrol. Moreover, these roadblock campaigns are usually highly-publicized on local radio stations, in local newscasts and in local newspapers. The publicity does two things: It scares social drinkers away from driving after even a drink or two with dinner, and it alerts the hardcore alcoholics unpursuaded by public relations campaigns to where the roadblocks will be, giving them the opportunity to find alternate routes home.

Alcohol industry advocates and civil libertarians made two predictions after .08 and roadblocks went national:

        (1) Arrests would go up, triggering new outrages and calls for even more 
             stringent laws aimed at curbing drinking and (as opposed to drunk) 

        (2) Highways would get less safe, as cops, courts, and jail cells that could 
             be used to pursue actual drunken drivers would instead be used 
             to apprehend social drinkers.

We've certainly seen plenty of point one -- state legislatures are falling all over themselves to pass extra-constitutional policies aimed at "cracking down" on impaired driving.

Unfortunately, point two is proving correct, too.

After two decades of decline, alcohol-related deaths are inching upward again. It's important to point out that data from NHTSA on drunk driving fatalities and traffic deaths is significantly flawed. The "alcohol-related" figure includes all accidents where alcohol is in any way involved, including for example, an accident in which a sober driver strikes a drunk pedestrian. The Los Angeles Times concluded a few years ago that the number of cases in which a sober person was killed by a drunk driver is about one-fourth of the figure put out each year by NHTSA.

Nevertheless, since .08 and ubiquitous roadblocks, alcohol-related deaths are climbing again. Opponents of alcohol-control policies see this as vindication of their objections to roadblocks and .08. Oddly enough, a press release issued last week by the National Transportation Safety Board offers further proof that they may be right.

It's title? "Hard Core Drinking Driving Fatalities on the Rise."

"Americans are more aware than ever before of the dangers of drinking and driving," the release begins. "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 study goes on to point out that these "hard core" offenders account for 40% of traffic accidents but account for just 33% of drunk driving arrests.

It's actually worse than that. If we look at "fatalities" instead of "accidents," drivers with a BAC above .10 account for 77% of the alcohol-related body count. And the average BAC in fatal accidents involving alcohol is .17. Put another way, motorists with very high blood-alcohol levels account for an increasing percentage of highway fatalities, but a decreasing percentage of arrests.

Clearly, we're allocating limited law enforcement resources toward the wrong pool of offenders.

Yet the first bullet point in the NTSB's "Recommended Model Program" for dealing with hard core drunken drivers is "frequent and statewide sobriety checkpoints" -- the very policy that in all likelihood is responsible for the uptick in traffic fatalities to begin with.

And as these policies continue to erode highway safety and spike fatality statistics, lawmakers will inevitably use those very statistics as justification for not only continuing and extending the same bad policies, but for passing even more laws aimed at stripping drunk driving defendants of criminal protections, and at restricting the sale, marketing, and consumption of alcohol.

It's time for some common sense in impaired driving policy. We need laws that draw on science and statistics, not hysteria. In an effort to get "get tough" on drunken driving, lawmakers are not only needlessly carving into our civil liberties, they're actually making our highways and roads more dangerous than they were before.

The author is a policy analyst with the Cato Institute.


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