NTSB RECOMMENDS PER SE BLOOD ALCOHOL LEVEL OF .05% OR LESS

NTSB recommends per se blood alcohol level of .05% or less.

 

On May 14, 2013, the National Transportation Safety Board issued a report titled “Reaching Zero: Actions to Eliminate Alcohol-Impaired Driving.”

http://www.ntsb.gov/doclib/reports/2013/SR1301.pdf

The NTSB intends for that title to be taken literally, as in: zero incidents of alcohol impaired driving– alcohol impaired driving to be entirely eliminated.  On page 1, the report states that the NTSB began, in 2012, to evaluate the effectiveness of “alcohol-impaired driving countermeasures” and “determined that the ultimate goal of the effort was to find a way to reach zero fatalities, injuries, and accidents involving alcohol-impaired driving.”  The report then states:  “This is an ambitious goal.  But the NTSB believes that over time it can be achieved.”  Seriously, the only way to ensure that not a single alcohol impaired accident occurs in a nation of 310 million people is to make it technologically impossible for any person to command the operation of any motor vehicle while in an impaired condition.   But it is clear that the authors believe they can cause the laws of all 50 states to conform to a zero-tolerance policy for drinking and driving, and I bet it occurred to them that, along the way, by championing their new “reaching zero” mandate, they will guarantee that the NTSB continues to command a nice fat slice of the federal revenue pie for a long time to come.

“Reaching Zero” cites data gathered by the National Highway Traffic Safety Administration showing that annual impaired driving fatalities already dropped from 21,113 in 1982 to 9,878 in 2011– a 53% reduction during that period.  It is quite possible that even the reported 2011 figure of 9,878 impaired driving fatalities is overstated.   The report considers a fatality to be alcohol-related if it involved a driver with blood alcohol level of .08% or more.  However, 39% of all drivers involved in fatal crashes were not tested at all for alcohol (perhaps for lack of any reason to suspect they were impaired or had even consumed alcohol) and there was no data available to the NHTSA for another 10% of those accidents, so the feds engaged in a statistical process called “imputation” to fill in the blanks and arrive at their numbers.

During the period from 1982 to 2011, the U.S. population grew from just under 232 million to just over 310 million– a 33% increase.  One might think that a 53% reduction in the number of alcohol-related highway fatalities during a period in which the U.S. population increased by a third would indicate that things are going quite well.   But the NTSB tells us we must now pursue the goal of zero accidents or injuries involving alcohol-impaired driving—not one, not two or three in a population of 310 million, but zero.  And they tell us that the way to do it is by lowering the per se alcohol level to .05% (for now) and having lots of police roadblocks around to frighten the populace into compliance.  They also tell us we should deploy lots of passive alcohol sensors to aim at people when they enter these ubiquitous police roadblocks.  In fact, the “Reaching Zero” authors admire the effectiveness of subjecting all drivers stopped by police to mandatory breath testing without suspicion.   The authors point out that this tactic is already employed in Australia, New Zealand and “several European countries,” but they are concerned that the pesky Fourth Amendment to the U.S. Constitution might stand in the way of such measures here, so they recommend widespread use of the passive-sensor approach instead.

“Reaching Zero” does allow that “[a]though lowering the per se BAC threshold may seem counterintuitive when the majority of alcohol-impaired drivers in fatal crashes have BAC levels well over 0.08…reducing the per se BAC limit could reasonably be expected to have a broad deterrent effect, thereby reducing the risk of injuries and fatalities from crashes associated with impaired driving [emphasis added].”   This observation raises an important issue:  What is the correlation between BAC levels at or near .08% and alcohol-related accidents, injuries or fatalities, versus the correlation between such incidents and BAC levels well over .08%?  Before we buy into the ratcheting-up of a law-enforcement-generated fear industry designed to scare us from consuming a beer or a glass of wine with a restaurant meal, we ought to be solidly convinced there is a scourge worth surrendering our liberty to eliminate, in the form of accidents, injuries and fatalities caused by drivers with alcohol levels between .05% and .07%.  My bet is there are damned few.

I have previously pointed out here

https://edfolsomlaw.com/2012/11/beware-fewer-oui-arrests-increased-risk-of-arrest-if-stopped/,

that Maine has seen a marked drop in OUI arrests in the past decade or so.  According to figures provided by the Secretary of State, Bureau of Motor Vehicles, in 2000 there were 9,878 statewide OUI arrests.  In 2012, there were 7,014.  That represents a decline of 29% in overall OUI arrests.  During that same period the percentage of those over age 21 who took an alcohol test with a result under .08% increased from 4 percent of those tested in 2000 to 19 percent of those tested in 2010.   In other words, people are already being arrested on thinner evidence of impairment and are increasingly producing test results below the legal per se level.   If the NTSB has its way, those who test between .05% and .07% will be turned into criminals.   The idea behind the NTSB’s recommendations is to make people so afraid of hitting a roadblock and being arrested on the way home from dinner that they won’t dare to drink even a single light beer.

At this point, the NTSB proposes to encourage states to adopt a per se standard of .05% or lower with “incentive grants.”  But history teaches that this federal carrot will soon be replaced by a stick, when the feds cut off highway funds to those states that refuse to comply.  Eventually, we will become Sweden, because the bureaucrats and regulators are increasingly running this asylum and bureaucrats and regulators all love Sweden, where those of their station are exalted.

 



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