Wall Street Journal: To Curb Drunk Driving, More States Consider .05 Limit on Blood Alcohol Level

By Jimmy Vielkind, Wall Street Journal

| Photographs by Adrienne Grunwald for The Wall Street Journal

March 17, 2023

ALBANY, N. Y.—Alisa McMorris totes a wagon filled with leaflets and a picture of her son Andrew, who was killed by a drunken driver in 2018, as she makes the rounds in the state capitol.

The 49-year-old Long Island woman, a member of the advocacy group Mothers Against Drunk Driving, is pressing legislators to pass a new state law that she says could decrease such tragedies: lowering the legal threshold for what constitutes driving under the influence of alcohol.

“Vehicular law in New York and nationally needs work so we can protect not only ourselves but everyone else on the road,” said Ms. McMorris, whose son was fatally struck while hiking on a Suffolk County road with his Boy Scout troop. He was 12 years old.

Her lobbying effort is part of a campaign in a number of states to set the BAC, or blood alcohol level, at which a person can be charged with drunk driving to .05. In the U.S., most driving-while-intoxicated or driving-under-the-influence laws are set at .08.

Alisa McMorris and her daughter Arianna sort materials, including posters of her son, that are used when lobbying for passage of the new blood alcohol level law in New York.

Utah is the only state with a .05 law, which took effect at the end of 2018. Legislation to follow suit has been introduced this year in six states, the most ever, according to the nonpartisan National Conference of State Legislatures.

Earlier this month, the Hawaii Senate passed it for the third consecutive year, but it has never been voted on in the House. The Washington state Senate held its first hearing on a bill, which has the support of Democratic Gov. Jay Inslee. New York City Mayor Eric Adams endorsed a proposal, and his transportation commissioner lobbied lawmakers in Albany about it.

If the proposals are enacted, two standard drinks per hour—or perhaps less—could lead someone to be charged with DWI or DUI, officials said. A standard drink could be a 12-ounce beer with 5% alcohol by volume, or ABV, or a 5-ounce glass of wine, according to the National Institutes of Health. Rates of intoxication vary by person.

Associations representing restaurants lobbied against the bills, saying they could put jobs at risk. Supporters said such measures save lives, and they pointed to a decrease in traffic deaths after Utah’s law took effect.

The push comes amid a national uptick in alcohol-related traffic deaths that began in 2020. There were 11,654 fatalities that year in motor vehicle traffic crashes in which at least one driver was impaired by alcohol, according to the National Highway Traffic Safety Administration, a 14.3% increase from 2019.

The number of deaths in police-reported alcohol-related vehicle crashes increased between 2020 and 2021 and were slightly higher in the first six months for 2022 compared with the same period in 2021, according to the agency’s preliminary estimates.

In Washington state, the number of vehicle deaths climbed to 745 in 2022, the highest level since 1990, according to the state’s traffic safety commission. Impairment by alcohol or drugs was a factor in half of those cases, the commission said.

John Lovick, a Washington legislator and former state trooper, said he introduced a BAC .05 bill because of what he saw while on patrol. After dozens of field sobriety checks, he concluded that he wouldn’t want someone he pulled over and blew a .06 or a .07 to be on the road where his children played.

“I think we need to get rid of that message, telling people that it’s OK that .08 is legal,” he said. “Zero tolerance is what we’re working toward.”

Arianna McMorris wears a heart necklace that has her brother Andrew's fingerprint on it.

Andrew's bedroom at his family's home in Wading River, N.Y.

The bill moved through committees and was set for a floor vote, but lobbyists for the Washington Hospitality Association successfully advocated against it, Mr. Lovick said.

A representative for the group testified at a January hearing that the legislation might increase liability for establishments that serve alcohol, because staff aren’t trained to recognize impairment at the lower threshold. A spokesman for the Washington Hospitality Association declined to comment.

Opponents of the push to .05 have said lawmakers should focus on drivers who are more severely intoxicated to reduce fatalities. For example, in New York, critics of the proposed legislation say it is unnecessary because the state already has a law that allows officers to charge someone with driving while ability impaired, a lesser offense, at a BAC of .05.

“The problem is not you or me having a second drink,” said Scott Wexler, executive director of the trade group Empire State Restaurant and Tavern Association. He said most drunk driving crashes involve people who have higher intoxication.

Federal analysis of 2020 deaths showed 84% of drivers involved in fatal crashes had a BAC of .08 or higher. Around 9.3% drivers had a BAC of .05, .06 or .07, according to federal data. Federal officials recommended in 2013 that states adopt the .05 standard.

Mothers Against Drunk Driving didn’t officially endorse a .05 threshold until 2019 and instead focused its advocacy on legislation requiring convicted drunk drivers to use devices that test for alcohol before they can start their car, according to Frank Harris, the group’s director of state government affairs.

New York state Sen. John Liu joined other officials and advocates in February to support legislation to lower the legal blood alcohol content threshold for drunk driving to .05. Photo: NY State Senate

Around the same time, New York state Sen. John Liu, a Democratic from Queens, began advocating for a .05 drunk-driving limit. The lawmaker pointed to academic research showing that the risk of a crash increases at .05 and lab studies that found evidence of driver impairment at that level. He said New York’s adoption of the law could spur other states to act.

A Siena College Research Institute poll last month found that 62% of New York voters surveyed supported the change, but the bill hasn’t been scheduled for a floor vote in Albany. A spokeswoman for Gov. Kathy Hochul declined to comment on whether she supports lowering the threshold. The Democratic governor would review a bill if it was passed, the spokeswoman said.

Several New York lawmakers said the political climate in New York was quite different from Utah, a state with a high concentration of Church of Jesus Christ of Latter-day Saints members who follow that religion’s teachings against drinking alcohol.

Utah State Rep. Norm Thurston, who sponsored the state’s .05 BAC law, said alcohol-involved driving deaths decreased without crippling the hospitality industry.

“It turns out that Utah is not as weird as you might think,” he said.