Many defense lawyers and drivers have complained that the blood-alcohol level used by states is too low and allows charges for relatively low amounts of alcohol consumption. Nevertheless, it appears that the National Transportation Safety Board will recommended that all states drop the blood-alcohol level at which motorists can be charged with driving drunk to .05, down from the current rate of .08. That will mean that an average woman will cross the threshold with only a single drink. For men, it will be a two drink maximum.

What is striking is the statement of NTSB Chairman Deborah Hersman, who explained that “Our goal is to get to zero deaths because each alcohol-impaired death is preventable.” That would seem to favor a .00 BAL. While all agencies work to avoid all injuries and deaths, few consider it a functional goal since there are few attainable absolutes in regulations. All regulation tends to be a trade off between rivaling goals or practices. Drinking is legal and most people believe that they can drive safely with a single drink. There is no question that the alcohol diminishes driving ability even with a single drink but the new level could result in a massive expansion of drivers under court supervision or suspension.

In defense of NTSB, they claim that more than 100 countries have adopted the .05 alcohol content standard or lower. Yet, this is a change that will receive little debate outside of the NTSB. An issue of this importance used to be the subject of considerable debate in Congress (or more importantly, in state legislatures) but with the rise of the “Fourth Branch” of federal agencies, such decisions are increasingly decided by federal bureaucracies that are fairly insulated from the public. They are then imposed on the states through federal conditional spending.

Many states are likely to balk at the decision given the already vocal opposition over the current standard. However, the federal government is expected to threaten states with the loss of federal funding for highways if they do not do exactly what they are told. No state (particularly in this economy) can afford to forgo federal funds for roads. While the Supreme Court suggested in National Federation of Independent Business v. Sebelius that the federal government could go too far in coercing states (in that case by threatening Medicaid), it has long allowed the use of federal conditions for highway funding. This encourages Congress to take in more taxes than it needs to return the money to the state with conditions or federal mandates.

States may also be ordered to implement alcohol ignition interlock devices. The cost of these devices is imposed on the drivers in the form of a $50 to $100 purchase price plus a $50 a month fee to operate.

With the increasing use of sobriety roadblocks where drivers are asked if they had anything to drink (and most answer truthfully), the result could be a much higher “yield” in arrests.

What do you think about the new regulation on BAL?

Source: USA Today