By Richard Berman
April 29, 2019
In early January of this year, a drunk driver traveling the wrong direction on the freeway collided head-on with the Abbas family’s SUV. Dr. Rima Abbas, her husband and their three children tragically did not survive the collision, nor did Joey Lee Bailey, the driver of the wrong-way vehicle. The incident spurred legislators in the Abbas’ home state of Michigan to introduce legislation lowering the legal blood alcohol content (BAC) limit for driving from 0.08 to 0.05.
The problem is, Bailey – like the vast majority of drunk drivers involved in a fatal crash – had a BAC that far exceeded the current 0.08 law. Toxicology reports put his BAC at 0.306, or nearly four times the legal limit. Evidence indicates that he had consumed at least 18 servings of alcohol prior to getting behind the wheel that night. It’s not uncommon behavior among abusive drinkers. More than 90 percent of alcohol-involved traffic fatalities contain someone with a BAC above 0.10. In California, another recent .05 bill was triggered by a fatal crash involving a driver at 0.12 BAC. In fact, the latest federal data puts the average BAC of a drunk driver involved in a fatal crash even higher, at 0.18.
When it comes to drunk driving, one’s blood alcohol content is an objective measure that indicates their level of impairment. Above 0.30 BAC, the aforementioned wrong-way driver likely lapsed into unconsciousness and experienced near total loss of motor control.
Yet according to numerous investigations into the effects of impairment, a BAC of 0.05 does not meaningfully hinder one’s ability to drive. Studies show that a 0.05 BAC is far less impairing than talking on a hands-free cellphone – an activity that’s deemed legal. A 120-lb. woman can reach 0.05 with little more than a single drink. Nonetheless, the 0.05 BAC policy has gained traction as a tough-on-drunk-driving measure ever since Utah became the first state in the nation to pass it into law.
Since drivers at 0.05 BAC aren’t meaningfully impaired, the crux of these lower legal limit laws relies on the contested existence of their deterrent effect. Supporters of the law often cite a 2017 meta-analysis from James Fell, a researcher who has devoted his career to incrementally lowering the bar for what it means to be “drunk.” Mr. Fell and his colleague claim that a national .05 law would save 1,790 lives each year by convincing would-be drunk drivers not to get behind the wheel.
But do we really think that having a .05 law on the books would have convinced Bailey to stop drinking after his second or third drink if he chose to drive after 18? Just as we don’t reduce the speed limit to make sensible drivers out of drag racers, lowering the BAC limit for driving would not make a difference to those already breaking 0.08 BAC laws.
The data supporting 0.05 as a deterrence measure are precarious at best. Of the 37 studies Mr. Fell used to inform his “1,790 lives saved” claim, not a single one used a control group (the gold standard of scientific research) while evaluating drunk driving fatality trends before and after 0.05 laws went into effect. Some studies didn’t even look at 0.05 laws at all, but rather evaluated the effect of reducing legal driving limits from 0.10 to the current 0.08 BAC standard. Others evaluated only drivers under age 21, who are already subject to zero-tolerance laws in the United States.
Where Mr. Fell could find evidence that 0.05 laws reduced fatalities abroad, it was because the law was adopted alongside a random roadside breath test mandate. Since drivers at 0.05 BAC aren’t noticeably distinguishable from other drivers on the road, the only hope of enforcing the lower legal limit requires the threat of an unprompted police stop.