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COMMENTARY

Commentaries on Fell & Voas (2014) A 0.05 BAC LIMIT IN THE UNITED STATES: AN IMPORTANT CHALLENGE FOR POLICY, HEALTH AND SAFETY This is an important paper systematically addressing many issues in the debate regarding the lowering of the blood alcohol concentration (BAC) level to 0.05 in the United States [1]. Both authors have established careers in the area of alcohol, drugs and traffic safety and have made important research contributions leading to major policy changes. The failure of the United States to follow world best practice by reducing the BAC level to 0.05 as a policy of harm minimization and safety promotion has been difficult for planners and researchers outside the political climate of the States to understand. This paper comprehensively reviews the questions that have been raised in debate and they provide sound and well-established evidence to refute the failure to change. The increased risk of driving with the higher (0.08) BAC has been established through numerous epidemiological studies over many decades and research has moved on, as can be deduced from the dates of the core papers provided. For example, the World Health Organization (WHO) [2], in its 2010 international recommendations to increase global health, indicates that it is an evaluated effective policy that should be introduced. The message is reiterated in the more recent (2012) European action plan to reduce the harmful use of alcohol during 2012–20 [3]. Another important issue is that international research has moved on, and current core research and policy engagements are associated with the impact of lowering the BAC to 0.02, or effectively zero. There is a case to be made that if highly experienced professional drivers are required to use the lower level for community safety, the general driver population should also take this step. The authors note that the lower level has been introduced in the Scandinavian countries and also recently in Japan, with reductions in fatalities. A key issue they note may be the resistance by the US alcohol industry to such a change. It is the case that the WHO recommendation relates not only to the associated reduction in road crash injuries and fatalities, but also to its role in reducing high levels of alcohol consumption. There are some points that should be clarified for readers unfamiliar with the field. Almost all countries that have successfully introduced the change have already had or have established programmes of police random checking. This is similar to, but not the same as, © 2014 Society for the Study of Addiction

the current vehicle-stopping programme used in the United States. There is also difference regarding the definition of an alcoholic drink. In Australia, for example, fewer drinks are estimated to place the person above the 0.05 limit than is noted in this paper. The difference relates to the quantifiable amount of alcohol in the definition of a standard drink. Overall, this is an important paper and relevant to Addiction. The pressures and resistance discussed have meant that in this key safety issue the United States is behind most comparable countries. Declaration of interests None. Keywords Alcohol consumption, blood alcohol concentration, global health, harm minimization, international policy, road crash fatalities. MARY SHEEHAN

Centre for Accident Research and Road Safety—Queensland, Brisbane, Qld 4059, Australia. E-mail: [email protected] References 1. Fell J. C., Voas R. B. The effectiveness of a 0.05 blood alcohol concentration (BAC) limit for driving in the United States. Addiction 2014; 109: 869–74. 2. World Health Organization (WHO). Global Strategy to Reduce the Harmful Use of Alcohol. Geneva: WHO Press; 2010. 3. World Health Organization (WHO). European Action Plan to Reduce the Harmful Use of Alcohol 2012–2020. Copenhagen, Denmark: WHO, Regional Office for Europe; 2012.

AN ARGUMENT FOR PRIORITIZING DRIVERS ABOVE THE CURRENT ILLEGAL LIMIT IN THE UNITED STATES In the United States, it is per se illegal for a person to drive with a blood or breath alcohol concentration (BAC) of 0.08 or higher even if the person is not impaired. It is also illegal for a person to drive while impaired by alcohol even if the person’s BAC is below 0.08. Fell & Voas would go further. They argue that ‘the risk of being involved in a crash of any severity increases at each positive BAC level’ and that the illegal limit should be lowered to 0.05. In 2005, when this author was Mothers Against Drunk Driving (MADD) National Director of Public Policy, a Washington, DC councilman made the same argument. Addiction, 109, 875–879

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This author disagreed with him then and disagrees with Fell & Voas [1] now for a host of reasons, some of which are discussed below. First, there is a significant difference between encouraging the safest possible course of action and criminalizing behavior that is not unreasonably dangerous. Fell & Voas correctly note that driving after drinking any amount of alcohol increases risk of crash. However, that does not mean that we should prosecute people who drive with BACs between 0.05 and 0.08 and brand them as criminals. Driving with a BAC between 0.01 and 0.08 is not significantly more dangerous than driving while talking on a cellular telephone [2], speeding more than 10–20% over the speed limit [3] or any one of a number of non-criminal driving-related activities [4]. Drivers with BACs between 0.05 and 0.08 are not nearly as dangerous as those with higher BACs. There is a large body of research on relative crash risk that reveals that risk rises disproportionately to BAC. The relative risk of a driver over the age of 35 with a BAC of 0.05 to 0.07 being involved in a fatal crash is approximately 4.03. However, the relative risk of the same driver with a BAC of greater than 0.15 being involved in a fatal crash is 111.94 [5]. In 2011, 9878 people were killed in crashes involving at least one driver with a BAC of 0.08 or higher [6]. In that same year, 1633 people were killed in crashes where a driver’s BAC was between 0.01 and 0.07 [6]. Drivers with BACs at or above the current illegal limit remain the primary threat to public safety and demand our attention. Secondly, a 0.05 illegal limit is unenforceable using current methods in the United States. The utility of a criminal law depends largely upon its enforceability. Indeed, as Fell has acknowledged, deterrence ‘is a function of the perceived probability of apprehension, the severity of the resulting sanction and the swiftness with which the penalty is administered’ ([7], p. 437). The current standardized field sobriety tests (SFSTs) allow officers to accurately and reliably identify people above and below the previous 0.10 illegal limit and the current 0.08 limit [8–11]. These tests were not designed, and are not sensitive enough, to allow officers to identify drivers with BACs between 0.05 and 0.08 [8–11]. Fell & Voas argue that the horizontal gaze nystamus (HGN) test is ‘just as valid at 0.05 BAC as it is at 0.08 BAC and 0.10 BAC’ and suggest that officers can enforce the proposed 0.05 law by arresting drivers based upon HGN test results alone. However, their suggestion is simply not feasible. Officers do not rely currently on any one sign, symptom or test to identify impaired drivers at roadside. Rather, they assess the totality of the circumstances [12]. The rationale is simple: none of the sobriety tests, including HGN, are specific to alcohol. In fact, commonly prescribed depressants, inhalants and © 2014 Society for the Study of Addiction

dissociative anesthetics cause HGN [12]. Thus, unimpaired people taking certain legally prescribed medications are likely to ‘fail’ the HGN test. If officers arrested drivers based on HGN test results, they would arrest scores of innocent people. Further, none of the sobriety tests are accurate enough to be used in isolation. In fact, McKnight’s own studies show that officers using the HGN test in isolation misidentified 38% of subjects below 0.04 BAC [13]. The criminal justice system simply cannot permit error rates that high. Additionally, approximately 20% of DUI arrestees refuse to provide evidential samples for testing [14]. It is difficult for this author to imagine that the government would win a significant percentage of cases where drivers were arrested based upon HGN test results alone without an accompanying evidential breath test, especially those who have demonstrated minimal or no impairment on the other sobriety tests. Finally, many drivers with BACs between 0.05 and 0.08 at roadside will test below 0.05 when given an evidential test at the police station. People metabolize the equivalent of 0.10–0.35 per hour (approximately one to two ‘standard drinks’) [15]. Due to the length of time that it takes officers to administer roadside examinations and transport suspects to a station, DUI subjects typically are not tested on an evidential instrument until an hour or longer after being stopped. Consequently, a person with a BAC of 0.08 or lower at the time of driving is likely to test under the proposed illegal limit. Thirdly, government agencies have limited resources and, in the current fiscal climate, must ‘do more with less’. In all likelihood, the more time officers and prosecutors spend investigating, arresting, processing and prosecuting drivers between 0.05 and 0.08, the less time they can devote to the greater threat to public safety—high BAC and repeat impaired drivers. Assuming arguendo that a 0.05 law would significantly increase the number of DWI arrests, it would also add to an already overburdened justice system, further delaying case resolution and undermining deterrence [16]. Not surprisingly, the Traffic Injury Research Foundation (TIRF) reported that fewer than half of Canada’s Crown Attorneys (40%) supported lowering the illegal limit to 0.05 for these reasons [16]. When drivers with BACs over 0.08 are killing more than 9000 people a year on American roadways, we are simply not situated to siphon off precious resources to address a much less dangerous cohort of potentially impaired drivers. In summation, this author is skeptical that lowering the illegal limit would solve more problems than it has the potential to create, and would rather see the limited resources available to justice officials used to improve the detection, apprehension, prosecution and sentencing of Addiction, 109, 875–879

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Commentary

people who drive at or above 0.08 and/or with drugs in their systems. Declaration of interests I am a former prosecutor and former MADD National Director of Public Policy. I continue to advocate on criminal justice issues and work through four national nonprofits, including the National Partnership on Alcohol Misuse and Crime. NPAMC has accepted donations from Beam Global and The Century Council, as well as Smart Start, Inc. (manufacturer of ignition interlock and breath testing devices) and Alcohol Monitoring Systems, Inc. (manufacturer of breath testing and transdermal testing devices). I also represent DUI crash victims in court and defend dram shop cases. Keywords Alcohol impairment, blood alcohol concentration, crash risk, deterrence, field sobriety tests, illegal BAC limit. STEPHEN K. TALPINS

Chairman and CEO, National Partnership on Alcohol Misuse and Crme, Washington, DC, USA. E-mail: [email protected] References 1. Fell J. C., Voas R. B. The effectiveness of a 0.05 blood alcohol concentration (BAC) limit for driving in the United States. Addiction 2014; 109: 869–74. 2. Strayer D. L., Drews F. A., Crouch D. J. A comparison of the cell phone driver and the drunk driver. Hum Factors 2006; 48: 381–91. 3. Kloeden C. N., McLean A. J., Moore V. M., Ponte G. Travelling speed and the rate of crash involvement. Volume 1: Findings. Report no. CR 172. Canberra: Federal Office of Road Safety; 1997. 4. Peden M., Scurfield R., Sleet D., Mohan D., Hyder A. A., Jarawan E. et al., editors. World Report on Road Traffic Injury Prevention. Geneva: World Health Organization; 2004. 5. Voas R. B., Torres P., Romano E., Lacey J. H. Alcohol-related risk of driver fatalities: an update using 2007 data. J Stud Alcohol Drugs 2012; 73: 341–50. 6. National Highway Traffic Safety Administration. Traffic safety facts 2011 data: Alcohol impaired driving. DOT HS 811 700. Washington, DC: US Department of Transportation; 2012. 7. Fell J. C., Compton C. Evaluation of the use and benefit of passive alcohol sensors during routine traffic stops. Annu Proc Assoc Adv Automot Med 2007; 51: 437–48. 8. Stuster J., Burns M. Validation of the standardized field sobriety test battery at BACs below 0.10 percent: Final report. Santa Barbara, CA: Anacapa Sciences, Inc.; 1998. 9. Burns M., Dioquino T. A Florida Validation Study of the Standardized Field Sobriety Test (SFST) Battery. Tallahassee, FL: State Safety Office; 1997. 10. Burns M., Anderson E. W. A Colorado Validation Study of the Standardized Field Sobriety Test (SFST) Battery. Denver, CO: Colorado Department of Transportation; 1995. © 2014 Society for the Study of Addiction

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11. Kiger S., Lestina D., Lund A. Passive alcohol sensors in law enforcement screening for alcohol-impaired drivers. Alcohol Drugs Driving 1993; 9: 7–18. 12. Talpins S., Hayes C. The Drug Evaluation and Classification (DEC) Program: Targeting Hardcore Impaired Drivers. Alexandria, VA: American Prosecutors Research Institute; 2004. 13. McKnight A. J., Langson E. A., McKnight A. S., Lange J. E. Sobriety tests for low blood alcohol concentrations. Accid Anal Prev 2002; 34: 305–11. 14. Berning A., Compton R., Vegega M., Beirness D., Hedlund J., Jones R. et al. Refusal of intoxication testing: A report to Congress. DOT HS 811 098. Washington, DC: US Department of Transportation; 1998. 15. Jones A. W. Evidence-based survey of the elimination rates of ethanol from blood with applications in forensic casework. Forensic Sci Int 2010; 200: 1–20. 16. Robertson R., Mayhew D., Vanlaar W., Simpson S. Recommendations for Improving Federal Impaired Driving Laws. Ottawa, Ontario: Traffic Injury Research Foundation; 2008.

A BETTER PATH TO PROGRESS ON DRUNK DRIVING Research finds significant impairment at 0.05 blood alcohol concentration (BAC). The world standard is 0.05. The National Transportation Safety Board (NTSB) has issued a strong recommendation for 0.05. So why isn’t the highway safety community stepping up to lead the effort? There are three good reasons: The data Most studies, including those cited by Jim Fell and Bob Voas, find significant but not substantial impairment at 0.05 BAC. Unlike 0.08 BAC where all are intoxicated and are a primary threat to others on the road, Fell & Voas [1] state that ‘most’ are impaired. That makes simple substitution of the lower level to the very extensive array of criminal and administrative per se sanctions very problematic. It should be pointed out that not all countries with 0.05 have criminal penalties. Also, Hingson [2] and others have found, that Mothers Against Drunk Driving’s (MADD) successful push for 0.08 BAC in all states save an estimated 600–800 lives per year, it is reasonable to estimate that the savings from 0.05 would be somewhat less. Such savings would be significant but finite. Enforcement and legislative realities Law enforcement officers are the everyday heroes who get drunk drivers off the road, and everyone should be deeply concerned by the budget cuts they have faced in recent years. Increasing the number of violators without providing law enforcement with the resources they need would Addiction, 109, 875–879

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An argument for prioritizing drivers above the current illegal limit in the United States.

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