Live long enough and you get to watch as ideas come full circle.  Wearing bullet-proof body armor, Radley Balko proposes that the time has come to rid ourselves of the crime of drunk driving.

Doing away with the specific charge of drunk driving sounds radical at first blush, but it would put the focus back on impairment, where it belongs. It might repair some of the civil-liberties damage done by the invasive powers the government says it needs to catch and convict drunk drivers. If the offense were reckless driving rather than drunk driving, for example, repeated swerving over the median line would be enough to justify the charge. There would be no need for a cop to jam a needle in your arm alongside a busy highway.

Singling out alcohol impairment for extra punishment isn’t about making the roads safer. It’s about a lingering hostility toward demon rum.

Despite the provocative headline, Radley concedes that his argument really isn’t radical at all.  He’s quite right.  It’s a return to the future, where the obsession with Blood Alcohol Content is displaced by concern for the wrongful conduct, recklessness and danger. 

There was once a time when the crime was driving while impaired.  It covered drunk driving, or driving while all drugged up, or anything else that caused one to drive in a manner that was unsafe for others on the road.  If a driver was too sleepy to pay attention to the road, he was impaired.  It was the impairment, rather than the cause of the impairment, that mattered. After all, the guy killed by the sleepy driver was just as dead as the guy killed by the drunk driver.  Just ask his children.

The nasty truth is that the turn toward BAC had less to do with the root causes of car accidents then it did with evidentiary hurdles.  Before Legislatures found out that they could shift the burden onto “science” to make proof both easy and irrefutable, prosecutors had to actually provide evidence to show that a person was driving in an impaired condition.  You know, things like testimony about observations.  Testimony can be refuted.  You can’t argue with a little black box.

The confluence of two things gave rise to a massive shift in the enforcement of impairment laws.  First, the realization that they could fix a number to Blood Alcohol Content that would serve as the benchmark of impairment, and second that some guy named Breathalyzer had developed a magic box that could conclusively state the BAC of a driver.

As with so many miraculous scientific discoveries, it made proof incredibly easier and became the darling of law enforcement.  Legislators only needed to come up with a number that everyone could agree on that would suffice as the bright line between good and evil.  That number, filled with the gravitas of very serious scientific voices, was .10 percent.  Of course, it was, despite all the statistics and anecdotes to the contrary, utter nonsense.

For the person who rarely imbibed, the magic number of .10 might be way beyond their limit, while the alcoholic functioned just fine with a far higher BAC.  Then there are the many other factors, such as the weight of the driver, which aren’t taken into account at all.  But the number was upheld, and the proof was good.

Then there were the magic box problems, where manufacturers refused to disclose their secret ingredients, leaving the rest of us to just accept their word on whether their magic box worked.  And the courts happily complied.  After all, judges can’t argue with science.

From there, and with the help of a some tragedies, it all became about drunk driving.  The magic number wasn’t nailing enough people, so it was reduced to .08% in 2000, with the feds suggesting states take the bait by withholding federal funds for anyone foolish enough to ignore the reduction.

Now, Austin, Texas, Police Chief Art Acevedo wants to reduce the magic number to .05%. 

The problem with the current Texas law prohibiting “driving while intoxicated” (DWI), Acevedo explained, is that it doesn’t allow him to arrest a driver whose blood-alcohol content (BAC) is below 0.08 percent without additional evidence of impairment.

“People sometimes focus on how many drinks they can have before they’ll go to jail,” Acevedo told the Austin-American Statesman. “It varies….A person may be intoxicated at 0.05, and you don’t want them out driving.”

Acevedo is absolutely right, as we’ve always known. The magic numbers are arbitrary, having nothing per se to do with impairment.  The law needed a number, and so a number it received.  And then a new number.  And now Acevedo wants another new number.  But it’s not because the magic numbers, whether .10% or .05%, is of critical importance when it comes to safety on the highway, but because it provides conclusive proof, when combined with the magic black box, that sends a person to jail.

Thoughtful people, including judges and even the occasional legislator, have long known that this was more magic than science.  But it worked extremely well.  It plugged holes in proof and make the drunk driver an easy snatch for any cop so inclined.  And so what if some others, not so impaired, where snagged in the big net?  That’s the price we pay for ease of enforcement.

But as Acevedo’s proposal, if not the federal government’s extortion of 2000, shows, if .10% makes it easy to convict drivers, .05% will make it easy to convict even more drivers.  While Mothers Against Drunk Driving has had enormous success vilifying otherwise nice people who had two glasses of wine with dinner as being the next child murderer, the police have similarly enjoyed the ability of being the heros of the cause. 

The only exception, of course, is when the person stopped is also a cop.  Hey, it’s a tough job and they can appreciate that a guy might need a few drinks after his shift.

Once the focus shifted off of the real problem, impairment, and onto the easy enforcement, magic numbers and magic boxes, it seems that everybody forgot the entire point of laws prohibiting driving while impaired.  It’s about impairment, not BAC.  It’s about the ability to drive safely rather than recklessly.  It’s about saving lives, not convicting people who caused no harm.

But the one place where Radley’s view sinks like a stone is that the abolishment of BAC as proof of impairment leaves a gaping hole in enforcement.  How in the world will the police conclusively prove guilt so that no one can survive prosecution? After all, what good is a prohibition if it can’t be proven by magic?