Federal Agency Adds Recommendation for the Reduction of Per Se Drunk Driving Limits to .05 BAC to its “Most Wanted List”

by: Jason Osbourn

02/03/2016 03:56 PM EST

The National Transportation Safety Board (NTSB) recently voted to add to its “Most Wanted List” goals intended to reduce substance impairment in transportation. This goal includes, among other things, the recommendation that all States reduce blood alcohol content (BAC) limits from .08 to .05. The recommendation was first adopted by the NTSB in 2013 but was only recently added to the NTSB Most Wanted List. Its inclusion on this list does not impact current State or Federal legislation. Statues in all fifty States which impose penalties for operating a motor vehicle with a BAC of .08 or greater remain in effect. In Michigan, a person with a BAC of less than .08 can still be guilty of impaired driving under MCL 257.625(2)(c) if their ability to operative a motor vehicle is visibly impaired.

A plurality of countries worldwide impose penalties for driving with a BAC of .05 or greater. However, these penalties do not necessarily include criminal sanctions. Drivers in Canada, for instance, who operate with a BAC of .05 are subject to a 3 day suspension and seizure of their vehicle, but will not face criminal penalties unless their BAC is .08 or above.

While the implication of the NTSB’s action is significant, it is unlikely that statutory limits on Blood-Alcohol Content for drivers will change anytime soon. The Federal government is severely limited in its ability to encourage individual States to adopt Federal recommendations. The NTSB, itself, has no authority to enact Federal legislation or to circumvent State statutes. Rather, its recommendations serve as a starting point for legislative proposals. Even so, a Federal law which declares a driver with a .05 BAC to be per se intoxicated would almost certainly exceed Congressional authority rendering it Unconstitutional. More likely, Congress would accomplish this kind of reduction through the passage of legislation that encourages States to amend its’ own laws either through Federal incentives or penalties. In fact, incentives to the tune of $500 million in Federal grants were used during the Clinton administration to encourage States to reduce State per se drunk driving BAC limits from .10 to .08. Conversely, penalties in the form of a 5% reduction in highway funding were designed by Congress to encourage States to increase the legal drinking age to 21. Passage of such legislation would require substantial political will and bi-partisan support. Given the current climate in Washington, it is doubtful that any such legislation would make it out of committee, let alone face a vote on the floor of the House or Senate.

Reducing the BAC limit is only one portion of the NTSB’s goal of ending substance impairment in transportation. Its Most Wanted List details changes it would like to see in a wide variety of transportation regulations. This list includes recommendations designed to improve rail transit safety oversight; expand the use of digital recorders on aircraft, rail, marine, and highway vehicles; and the reduction of fatigue-related accidents, to name just a few. To see the whole list, visit http://www.ntsb.gov/safety/mwl/Pages/default.aspx.