Alarmed by rising traffic fatalities, advocates and lawmakers in several states are taking a fresh look at toughening drunk driving laws by lowering the allowed blood alcohol concentration (BAC) limit to .05 from .08.
Only Utah, which lowered it in 2018, has a .05 limit. But bills were introduced over the past two years in Hawaii, New York and Washington State to do the same, as well as in recent years in California, Delaware, Michigan, Oregon and Vermont, according to tracking by the National Transportation Safety Board (NTSB).
While none passed, more attempts to do so are around the corner.
Oregon’s top highway safety representative told the NTSB this summer that the Governor’s Advisory Committee on DUII “recognizes the value in reducing the per se limit to .05%” and will continue to push for legislation. Washington State lawmakers are teeing up the issue again for 2023.
“We have seen a dramatic increase in traffic fatalities in our state and around the country and feel some urgency to take action,” Marko Liias (D), chair of the Washington State Senate Transportation Committee, said at a recent work session.
It’s been nearly a decade since the NTSB first recommended that states adopt the lower drunk driving threshold. The argument then, as now, is that the move would save lives. Alcohol-related crashes account for nearly a third of traffic fatalities, according to the National Highway Traffic Safety Administration (NHTSA).
One study from 2017 estimated that if all states adopted a .05 BAC limit it could result in an 11% reduction in alcohol-related fatal crashes possibly saving 1,790 lives a year. And a 2014 study by one of the same researchers concluded that all drivers have at least some impairment at a .05 BAC and that the risk of crashing “increases significantly” at that threshold and above.
So far, though, only Utah has embraced the lower standard, which is more in line with European impaired driving laws.
In the early 2000s, states were all but forced to adopt a .08 BAC threshold, down from .10, under threat of losing federal highway dollars. With no federal stick forcing action this time around, states have largely ignored the federal recommendation.
But that reticence could be about to change. One key factor is the rising number of fatal crashes on U.S. roads. That has focused the attention of state and federal transportation officials who are witnessing the reversal of years of progress in reducing highway deaths.
Earlier this year, NHTSA released its 2020 crash data report which showed a nearly 7% increase in automobile fatalities for 2020 even as total vehicle miles driven were down, likely due to the Covid-19 pandemic. All told, more than 38,000 people lost their lives in traffic crashes, the most since 2007.
“The rising fatalities on our roadways are a national crisis; we cannot and must not accept these deaths as inevitable,” U.S. Transportation Secretary Pete Buttigieg said in a statement at the time.
Additionally, in February, NHTSA released a widely publicized study on Utah’s experience with a .05 BAC law that concluded the law “had demonstrably positive impacts on highway safety.” Specifically, the study found that Utah’s fatality rate from crashes dropped more than 18% from 2016 to 2019, the first year the new drunk driving law was in effect. By comparison, the U.S. overall saw a drop of just 5.9% during that same period.
At the same time, the report found many of the concerns raised about Utah’s law when it was being considered didn’t come to fruition. Alcohol sales continued to rise, not drop, as did hospitality industry tax receipts. And Utah tourism didn’t take a hit, despite an advertising campaign by the American Beverage Institute that warned: “Utah: Come for Vacation, Leave on Probation.” In fact, the study showed, drunk driving arrests did not spike after Utah’s law took effect.
At the recent Washington State transportation committee work session, Major Jeff Nigbur of the Utah Highway Patrol attributed most of the success of the law to public education and changing behavior on the part of drivers, not enforcement.
“We wanted to help people make better decisions on the front end,” he told the committee during a virtual appearance. “It was never to increase arrests.”
Like other states, Utah has recently seen an uptick in traffic fatalities.
Whether the .05 limit will get immediate traction in other states is unclear. In 2021, the Hawaii Senate passed a .05 bill, but it died in the House. Another attempt this year also failed.
In Washington State, Liias, the Senate transportation chair, credited NTSB Chair Jennifer Homendy for putting the .05 BAC recommendation on his radar. Earlier this year, Liias was among 11 cosponsors of a bipartisan .05 bill that was introduced late in the legislative session. While the bill never got a hearing, Liias said the goal was to “start the conversation.”
Liias said the plan is to reintroduce the bill in 2023 as part of a broader conversation around traffic safety, but he cautioned it’s a big enough change that it might require a multi-year effort to pass.
In some cases, the lower BAC limit could mean a driver, depending on weight and other factors, is legally impaired after just one or two drinks. Liias said he could live with that, especially if it saves lives.
“If we could push our traffic fatalities down 10%, that’s real,” Liias said. “And for families, 30 or 40 people [saved] a year is a real thing. “
Besides the NTSB, the .05 limit enjoys support from a broad array of groups and advocates, including the World Medical Association, the American Medical Association and the Association for the Advancement of Automotive Medicine.
In 2019, Mothers Against Drunk Driving (MADD) endorsed a Michigan bill that would have lowered that state’s BAC limit to .05. It was the first time MADD had backed a .05 drunk driving bill, despite playing a major role in the national push for a .08 threshold.
For 2023, MADD expects .05 legislation to be introduced in at least Washington, New York, and Hawaii, with perhaps the best chance of passage in Hawaii.
But while MADD supports a move to .05, the group’s national President Alex Otte said her organization’s chief focus is on ensuring that automobile manufacturers install advanced impairment detection technology as standard equipment in new cars. That’s a requirement under the bipartisan infrastructure law.
“We are grateful for the opportunity to support states [on .05], but we are continuing to work on the prevention technology because it truly has the power to end drunk driving for once and for all,” Otte said in an interview.
Any state that moves to follow Utah’s lead is likely to face tough opposition from the alcohol industry. In 2021, the American Beverage Institute (ABI) blasted the Hawaii Senate after it passed its .05 bill. In a statement, the ABI said the measure would make “criminals out of responsible Hawaii residents and tourists.”
In a policy brief on its website, the ABI says it “strongly opposes” a lower legal BAC limit and urges policymakers to instead focus on repeat drunk drivers and drivers with high BAC levels, noting they’re involved in more of the fatal crashes.
“Don’t let the false narrative peddled by the NTSB and others fool you,” the brief reads. “Lowering the arrest level to 0.05 is a mistake that harms local economies, criminalizes responsible behavior, and distracts law enforcement from the biggest threats on the road.”