The Federal DUI Mandate: A Step BAC

D. Muska

President Clinton recently endorsed a national blood alcohol content (BAC) standard for drunk driving. The new standard, .08 percent, is being pushed by advocacy organizations such as Mothers Against Drunk Driving. If approved by the House of Representatives—it passed the Senate March 4 by a wide margin—Nevada and 34 other states will face a choice between lowering their present .10 percent limits or potentially losing federal highway funds. A broad coalition of opponents, from civil libertarians to lobbyists for the restaurant and beverage industries, have coalesced to fight this latest proposed federal mandate. Herewith, an examination of the BAC debate.

The Rationale

A tougher BAC limit, proponents argue, will result in fewer drunk-driving fatalities. "We know that .08 percent laws alone will not win the war on drunk driving," said Karolyn Nunnallee, national president of MADD, "but we also know that we surely will not win the war unless we start making .08 percent the law of the land." Sen. Frank Lautenberg, D-N.J., who co-authored the BAC bill with Sen. Mike DeWine, R-Ohio, asserts "A national standard of .08 percent will save at least 500 lives a year and prevent devastating injuries to thousands more, all without infringing upon the right of anyone to drink socially and responsibly." Lautenberg and his allies base their claims on a study which compared states that lowered their BAC limits with nearby states that did not. Author Ralph Hingson concluded that a national .08 percent standard would save as many as 600 lives each year.

The Study’s Flaws

The American Beverage Institute (ABI), however, has documented several errors in Hingson’s methodology. For example, he compared California’s .08 percent BAC limit to the "nearby" state of Texas, whose limit remains .10 percent. Using states closer to California, including Nevada and Arizona, the ABI discovered Hingson’s conclusions about fewer fatalities do not hold. Even comparing California with a composite of three states matching its size did not demonstrate a greater amount of fatalities in non-.08 percent BAC states. The flaws in Hingson’s study are particularly important, since it is the only scientific justification supporters of a national BAC limit use to make their case.

Are Casual Drinkers Really the Problem?

National Highway Traffic Safety Administration (NHTSA) figures reveal the average BAC level for fatally injured drunk drivers is .18 percent, more than two times the proposed new standard. Close to 80 percent of alcohol-related traffic fatalities involve drivers with a BAC level of .10 or higher—62 percent are at .14 percent or higher. Clearly, most drunk drivers are not casual drinkers. But under the proposed new limit, casual drinkers may be classified as drunk. The NHTSA has determined that a 120-pound woman with an average metabolism reaches the .08 percent BAC limit by drinking just two six-ounce glasses of wine over a two-hour period.

Research indicates that the risk of an accident increases quite slowly until .10 percent BAC is reached, at which point the chance of being involved in a car crash doubles. "A person who has consumed a number of drinks," wrote Ben Langlotz of the Oregon chapter of the National Motorists Association (NMA), "but remains below the [.10 percent] limit, is at no greater risk than the many other drivers who are statistically at mildly enhanced risk of an accident for various legally permitted reasons (e.g., youth, inexperience, elderly, tired, poverty, angry, distracted, clueless, inattentive.)" In a 1996 New York Times article, a former president of MADD admitted that the DUI "problem may be down to a hard core of alcoholics who do not respond to public appeal." For them, lowering the BAC limit to .08 percent will do little, according to a Minnesota judge who has sentenced thousands of drunk drivers. "… .08 percent is not going to deter," said Dennis Challen. "We had a study in Minnesota examining habitual drunken drivers over a three-year period and found no difference in repeat rates between those that were sent to jail and those that were not."

Nevada Reacts

Overall, Nevada’s elected officials oppose a federal mandate for .08 percent BAC. Strangely, the only prominent politician who supports the measure is Gov. Bob Miller. All four members of the congressional delegation stand in opposition—both of the state’s senators voted against the .08 percent bill earlier this month. In February, Nevada Rep. Jim Gibbons cited the 10th Amendment as justification for his objection to the federal BAC mandate. "I don’t think they should be tying the state’s hands and holding hostage money the state has put into [the federal highway fund]," he said. "I don’t think Washington—3,000 miles from Nevada—should be making the decision." State legislators have made their position clearly known as well. Attempts to lower Nevada’s BAC standard to .08 percent were rejected in each of the last four legislative sessions. The editors of the state’s two largest newspapers—which have diametrically opposed philosophies of governance—agree that the BAC mandate is a serious curtailment of states’ rights. The editors of the Las Vegas Review-Journal derided the proposal as a "well intentioned but misguided step" away from the trend toward devolution of federal power, while the Reno Gazette-Journal’s editorial page called it "another instance when Congress should butt out of local affairs and stop issuing threats that have no place under our constitutional system of state supremacy." But in light of Nevada’s growth-related infrastructure needs, state legislators are likely to capitulate to the federal BAC limit. "I’m not so sure Congress will pass [the .08 blood alcohol standard]," Nevada Senate Majority Leader Bill Raggio told the Gazette-Journal earlier this month. "But if it does, we’ll have to support it. We can’t risk losing that money."

Are There Alternatives?

Many analysts believe that stiffening the penalty for drunk driving is a more effective way to prevent DUI accidents than prosecuting casual drinkers. Nevada revokes an intoxicated driver’s license for 90 days for the first offense, one year for the second offense within seven years and three years for the third offense within seven years. Some states, such as California, have adopted more draconian punishments, including taking away offenders’ automobiles. In Santa Barbara, rigorous enforcement of the state’s impoundment law cut DUI accidents by 32 percent. (In a March 10 press conference, Reno law enforcement officials announced their intention to seize drunk drivers’ vehicles in civil court.) Tougher penalties are perhaps needed in Nevada, but even by criteria established by MADD, the state is taking satisfactory steps to fight drunk driving. For example, the Silver State classifies DUI homicide as a felony. Also, Nevada allows the use of sobriety checkpoints—procedures whose constitutionality remains in doubt. In the 1997 legislative session, an early-intervention DUI tool was approved. Teen drivers, statistically the most dangerous group of drivers on the road, now face increased penalties for testing positive for any amount of alcohol.


"That anyone should be killed by a drunk driver is tragic," Challen wrote in the January/February 1995 issue of NMA News, "but the solutions to this problem are often based on emotion and personal vendettas, not rational thought, sound public policy, nor backed up by statistical data." A .08 percent federally mandated blood alcohol content standard is textbook feel-good public policy. It will make elected officials appear they have cracked down on drunk drivers—and thus give them an effective issue to use in November’s elections—but in reality a lower BAC limit will do very little to make the nation’s roads safer. The campaign against drunk driving is indeed a noble cause, but it will not be aided by yet another unnecessary federal mandate.

D. Dowd Muska, a non-smoker, is a contributing editor for Nevada Journal, the Nevada Policy Research Institute’s monthly magazine. He can be contacted at