The .05% Solution

It started at .10%. Then it was .08%. Now, the National Transportation Safety Board wants to  reduce it to .05% blood alcohol content to create a per se crime of drunk driving.  And it comes with a plethora of ideas, including steering wheels that can tell from perspiration whether the driver has been drinking, or interlock devices that won’t allow a car to start until the driver has done some heavy breathing,

The  New York Times says it’s a good thing.


It is surprising how few drinks can impair a driver’s judgment. A report from the National Transportation Safety Board estimates that alcohol-impaired driving contributes to thousands of deaths and tens of thousands of serious injuries each year. It is right to urge states to reduce that toll by lowering the allowable blood-alcohol concentration for drivers from 0.08 percent to 0.05 percent.
The first sign of a problem is the wiggly word used to make the connection between alcohol and thousands of deaths.  See how they snuck it in there, “contribute”?  Not “cause,” because there is no evidence that alcohol was the cause, and indeed there is a ton of evidence to the contrary. The statistics are played by including in the numbers any death where anyone anywhere near a car had any alcohol in them, including the victim, without regard to whether alcohol had anything to do with it.

The second sign is that Mothers Against Drunk Driving, the force behind the reduction from .10% to .08% and the public service announcements, the school groups like SADD, and pretty much every initiative relating to drunk driving, doesn’t support this change.

This is shocking. No, worse than shocking.  But MADD isn’t just the mothers who have endured a tragedy anymore, but a sophisticated machine. In their zeal to wipe drunk driving from the face of the earth, they realize that this move goes too far.  They have thrived on the support of middle America, using the “do it for the children” argument better than anyone else.  But this move goes beyond the tipping point of acceptability, and that would spell the death of their power and their effort.

The use of a percentage of blood alcohol content as the definition of a crime is a strict liability offense. You don’t have to drive dangerously. In fact, you can driver perfectly, but you’re still a criminal.  You may not put your own interests ahead of society, but just be a pretty normal, law-abiding, happy person, and still you’re a criminal.  You may support the death penalty, make cookies for the DAR bake sale, own an AK, but still you’re a criminal.

If the BAC is reduced to .05%, it’s going to change a lot of lives, and the people whose lives it changes aren’t bad people and aren’t going to like it.

The point has been made that if we want to eradicate drunk driving, then it can be done quite easily by making the legal BAC .00%. No drinking, period. Easy. But people aren’t going to like that at all. The argument offered to make the .05% BAC more palatable is that it allows some drinking:


The new standard would not bar all alcohol, but would mean giving up a drink or two. A 180-pound man who might be able to drink four beers or glasses of wine in 90 minutes without reaching the 0.08 limit might have to cut back to three to meet the lower standard. A 130-pound woman who could have three drinks in 90 minutes and stay below the current standard might have two drinks instead.
The advocates want to make this change seem as innocuous as possible, rather than controlling the behaviors of others. Not being much of a drinker, it would likely have no impact on me. But for those who enjoy a bottle of wine with dinner, or live out in no-man’s-land and whose only entertainment is a dozen beers at the highway honky-tonk, they will become criminals.

And that’s the issue. This isn’t about advocating for the right to drive drunk, but about the criminalization of things that are done today by the law-abiding.  This isn’t about people making a decision to engage in criminal conduct, but about people not knowing whether they’re going to be a criminal or not.

There are many consequences of this change, together with the other ideas to prevent people from driving drunk, that aren’t being discussed. What happens when the technology of the magic steering wheel fails and cars won’t start? What about the person who shares a car with a convicted drunk driver but is constrained to use the interlock device? What about the person with an emergency who needs to get to the hospital but can’t get the car to start?  The list goes on for a long time. Use your imagination.

The Bubble Boy agenda, the Utopia where no one is ever harmed, won’t happen because of this change. There will still be crashes, because people can’t drive worth a damn, and there will still be children who die in crashes. There will be diseases that take the lives of people who don’t deserve to die, even though the television informs us that they’ve cured restless leg syndrome. There will never be that perfect world where no mother has to bury her child. 

Still, anyone who has had too much to drink should not get behind the wheel. You are selfish and foolish, and you have no right to put me or my children at risk because you wanted to have a good time.  But you can do this because you’re a human being, not because it’s the new crime du jour. And police can, and should, arrest you if you drive recklessly, whether it’s because you’re drunk or you just drive like crap.

It’s hard to argue against something that has become so socially unacceptable as drunk driving. Only a pariah, or a criminal defense lawyer, would be crazy bold enough to speak out against something that saves the lives of children.  But when half of America finds itself branded as a convicted criminal, crying in a lawyer’s office that they meant no harm, and caused no harm, it will make more sense.

18 comments on “The .05% Solution

  1. Max Kennerly

    “The Bubble Boy agenda, the Utopia where no one is ever harmed,” jokes the guy who argued for mandating backup monitors in cars. Are you part of that agenda or not?

  2. SHG

    Must everything be explained to you in small words, Max? Did you see anything connecting backup cameras to creating new crimes? Do you see any downside unintended consequence to having backup cameras? The worst that can happen is the camera doesn’t work and we’re where we are today. No one goes to prison for it.

  3. Gloria Wolk

    I hope readers took your comments about MADD seriously. There is a good expose about how they have abandoned their mission and are simply a money-raising corporation in bed with automobile manufacturers. [Ed. Note: Link deleted per rules.]

    Among the facts he repeats is that MADD uses “junk science” to advance its agenda.

    I rarely drink alcohol, so this is not a personal issue for me, but I do have concerns when driving about those who may be impaired due to cell phones, liquor, drugs.

  4. Max Kennerly

    Don’t be fatuous. You can mandate a car company to do something and it’ll do it (or be enjoined from sale), but individuals obviously do not respond to the massive personal and financial incentives against drunk driving, so we have to go further.

    Seems your argument is that, as a society, we should spend millions of dollars to prevent every mishap with a car someone close to Scott Greenfield has suffered, but God forbid we try to discourage a commonplace deadly recreational activity.

    I happen to agree with you on the backup cameras, but it’s quite clear that, if you didn’t know personally know a victim of the problem, you’d be railing against the “Bubble Boy” and “utopia” culture trying to mandate them. Either own up to the duality of your views on vehicle safety or ditch the hyperbole.

  5. SHG

    Don’t assume, Max.

    And never put into writing anything that confirms people’s worst thoughts about you.

  6. John Barleycorn

    .05, MADD being replaced by yet even more devious crusaders, and backup cameras being tossed about like hand grenades in the comments?

    I think I am going to have to go rummage around and dust off a few WKRP in Cincinnati and Barney Miller episodes while testing out the .05 threshold before dinner tonight.

    I knew those sneaky bastards were up to no good when they snuck in the first zero after the decimal point.

  7. Anonymous

    Don’t like the idea of arresting people for nothing more than that they’ve consumed liberal libations of a 90 proof
    nerve tonic? Wait a while and buy one of those self-driving cars.

  8. Li

    The tone of the post seems quite funny to me, as I have lived in countries where 0.5% is the limit for my whole life. It’s really not that big a deal. I don’t even like driving at 0.5%, to be honest. To me, the idea of someone drinking four beers or glasses of wine right before driving is mind-boggling.

    The devices are obviously over-the-top, though.

    And as regards “half of America finds itself branded as a convicted criminal”, I highly doubt Americans are somehow worse than others in exercising some basic self-restraint.

  9. SHG

    Your opinion is deeply meaningful, especially whether you “highly doubt” that “half of America finds itself branded as a convicted criminal.” Americans, all of whom have wondered what you thought, thank you.

  10. Nicholas Weaver

    One thing that struck me is the claimed benefits of .05%, claims by the advocates, is very indirect.

    The number of fatalities reduced if those who were between .08% and .05% is removed is on the same ballpark as exterminating every deer in the US (those evil glowing-eyed menaces kill ~200/yr in auto accidents). Most of the fatal accidents are caused by the SERIOUSLY drunk.

    Thus they have to argue that a lowering of the limit causes a psychological change that causes the drunks to not get drunk, if its to make a significant impact in the fatality rate.

    (I wish more public health/safety arguments would include the “Deer Test” (200/yr) or “Lightning test” (20/yr). If it doesn’t pose a significant benefit over exterminating Bambi, its probably not worth focusing on)

  11. SHG

    Ah yes, the collateral statistics used to justify the reduction without context tends to make it appear far more significant and worthy of criminalization. The fact that no hard predication are (or can?) be made as to how many lives are saved compared to how many people will be turned into criminals and potentially imprisoned is revealing.

  12. SHG

    Hey, I have no issue with Li’s opinion per se, but only that it’s offered as if anybody gives a shit about some anon internet commenter’s opinion.

  13. John Neff

    There is a study of BAC limit vs alcohol fatalities where the author included age, percentage under 25, gender and the price of beer as additional factors and turned the entire study into mush. Is does not take many additional variables to do that.

    I don’t think there are very many people who understand how to properly do such a study but apparently it does not take much math to befuddle a member of congress.

  14. TomH

    One other issue may be how police respond to an offense that they can not detect by use of the five senses.

    Will breathalyzers become a standard part of every Saturday night traffic stop? .05 may have an impact on reaction time, but is it apparent from speaking to the driver of a vehicle who otherwise just has a busted tail light.

    The temptation to increase arrests by raking in misdemeanor dui’s from otherwise innocuous drivers could be pretty significant.

  15. SHG

    That may well be the case, as an officer need only say the driver’s eyes looked bloodshot or his speech was slightly slurred. As long as the initial stop is lawful, it would be lawful to test the driver if there is any excuse to do so.

  16. Bruce Coulson

    Of course, there is also the schizoid way that we handle drunken driving. In Ohio, it takes 4 (four) hours to write a proper DUI ticket (at least it did 15 years ago, and I doubt that they’ve streamlined things that much). As you can guess, writing such tickets is not the most popular pasttime for officers, especially with supervisors demanding that officers meet quotas… err… enforce all traffic regulations in a efficient manner. So, despite the lowering of the legal BAC, this may not translate to more tickets. And I haven’t heard of any push to make DUI tickets faster to write…

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