The .08 debate: Does low standard net social drinkers?

By Rich Hanner
News-Sentinel editor

Lodi police Lt. J.P. Badel gets special satisfaction when one of his officers nabs a driver with a lower blood alcohol level.

Drivers with a high blood alcohol content (or BAC, as it is commonly known) are easier to spot, swerving, sometimes blasting through red lights, bouncing off curbs.

“Those are almost ‘gimmes,’ ” Badel said.

In contrast, the drivers at the lower scale are less impaired, tougher to detect and get off the streets.

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“It requires more skill and training to spot someone with a BAC of .08 or .09,” said Badel, who heads up the department’s aggressive DUI enforcement effort. “I’m impressed when an officer can make arrests at those lower levels. It’s more difficult.”

In recent years, there has been a forceful push toward lower and lower BAC levels.

California dropped its minimum level from .10 to .08 in 1990. A federal law passed last year mandates that other states drop their DUI threshold to .08 — or risk losing sizable chunks of federal money.

Yet the downward migration of BAC levels is not applauded by everyone. Some wonder if the emphasis has wrongly shifted from drunken drivers to social drinkers. Critics point out that heavily inebriated drivers, those with lofty BACs, are far much more likely to be involved in fatal accidents than those with levels of .10 and below.

“All the lower BAC levels have succeeded in doing is creating a new criminal class out of social drinkers,” said Mark Chandler, executive director of the Lodi-Woodbridge Winegrape Commission.

The Washington, D.C.-based American Beverage Institute is trying to hold the line against lower BACs for those over 21. Among its contentions, supported by a report in the New England Journal of Medicine: That the risk of getting in a car accident while talking on a cell phone is about the same as driving with a .10 BAC.

And, despite early claims that a national downshift to .08 would save 600 lives each year, a federal Government Accounting Office report found that there was no conclusive evidence to back up such claims.

Blood alcohol levels can be measured through a breathalyzer test or blood sample. The .08 threshold in California is a so-called per se level; that is, even if a driver has not violated a traffic law, if his or her BAC level is measured at .08 or above, they have broken the law. They will be subject, in most cases, to a night in jail, a hefty fine, a license suspension and higher insurance costs.

Lower BACs became a target of the politically powerful Mothers Against Drunk Driving, founded by Candy Lightner after her daughter was killed by a driver under the influence. California embraced the lower level early, in 1990.

Advocates have cited studies showing that driving ability is impaired at extremely low BAC levels of .02 or even .01.

Though it has settled for the .08 level, MADD officials don’t think anyone should be behind the wheel after drinking alcohol, period.

“We feel people should avoid drinking and driving altogether,” said Ron Miller, grant coordinator for MADD California, based in Sacramento. “It is a matter of planning; line up a cab or a designated driver.”

Leaders of MADD and other advocacy groups have rallied under the slogan, “.08 saves lives.”

Yet some question that, and wonder if a .08 could actually be doing more harm than good.

“A level of .08 is not really that much alcohol; it is a level a social drinker can reach after a few glasses of wine,” said Brad Bishop, a professor at Birmingham, Ala.’s Samford University Cumberland School of Law and an expert in drunken driving law.

“Yet a DUI conviction can be ruinous to people. It can take away a job, a livelihood. If you are a salesman and you need your car to call on customers, your career may be over.”

Bishop is also a municipal court judge who has written a book and numerous articles on drunken driving and has presided over some 1,000 drinking-and-driving cases. His suggestion: Crack down on the hard-core drinkers with blatantly elevated BACs.

“Most times, it’s not the low BACs involved in the fatals. It’s the hard-core drinker, someone who is really sloshed. These are people who have lost their depth perception ... they don’t know if that thing on the side of the road is a person or a tree. They’re the ones you absolutely have to get off the streets,” he said.

In fact, according to federal studies, the average BAC of a driver involved in a fatal accident is .17, more than twice the allowable level in California,

A better approach, Bishop feels, is a scalable set of consequences that distinguishes between the relative risk of someone driving at a .08 level versus .20.

“It would be sort of like speeding. You go 5 mph over the limit, you get one fine. You go 20 mph over the limit, you get a bigger fine,” he said.

When it comes to BAC levels, though, California’s legal system tilts toward a “one size fits all” approach. Punishment does increase for repeat offenders, but consequences for a first-time offender with a low BAC are typically the same as for someone testing high.

Critics of lower BACs say they may only spread police enforcement too thin, diffusing a spotlight they feel should be laser-focused on the most dangerous drivers. And they point out the lower the BAC standard goes, the greater the confusion over whether a drinker should drive or not.

Research by the Century Council, financed by distillers to address issues relating to DUI, shows most people have trouble estimating their BAC level. Further, a council study shows 72 percent don’t even know what their state’s legal BAC level is.

Research on lower BACs is mixed. MADD cites a 1997 Illinois study that found a 13.7 percent drop in fatal accidents after a .08 level was adopted.

But opponents refer to a GAO report released in 1999 that reviewed a number of studies and found no conclusive evidence that .08 laws alone save lives. The report did state that .08 laws, when combined with other anti-DUI laws, strong enforcement and public education, could cut fatalities, though unraveling the role of each component was difficult.

Critics also maintain that, at least in the case of red wine, healthful benefits may be negated by a fear of being handcuffed and jailed.

“Our research says that a couple should be able to split a bottle of wine over dinner and be perfectly capable of driving home,” said Chandler, of the winegrape commission. “Unfortunately, the emotionalism generated by this issue far exceeds the logic.”

Badel, though, strongly backs the .08 level and endorses MADD’s position that people should not drink and drive at all.

“I’ve had to notify family members their loved one had died because of a drunken driver,” he said. “I’ve seen the results. If someone is going to drink, why even take the chance of driving and hurting someone?”

Contents

» High number of drinking and driving arrests in Lodi raises questions
» The .08 debate: Does low standard net social drinkers?
» Students tell stories of drinking at parties, rural areas
» Family copes with tragedy of drinking and driving
» Embarrassment, fines just the start when getting a DUI
» Tips on how to avoid a DUI charge, or to stop drinking altogether