Legitimizing a Lower Legal Limit

It’s no secret that there have been more than a few eccentric – even downright ridiculous – laws enacted throughout the United States.  From harassing Bigfoot to sleeping in a cheese factory; from wearing whistling underwear to producing bouncing pickles; it doesn’t take much looking to get the impression that lawmaking in this country can be bit more like a clown contest than a political science.  And while nobody could possibly object to protecting Bigfoot’s privacy, there is one law in particular that stands out in American history like a sore thumb: prohibition.

Mob bosses, police raids, political corruption and speakeasies – all of these can be associated in one way or another to prohibition.  Al Capone made his criminal career violating it, the Kennedy family made their fortune undermining it, and the first U.S. income tax was levied to subsidize it.  For all that, and even after being officially abandoned almost 100 years ago, prohibition is now making an apparent comeback in the State of Utah.

On March 23rd, 2017, Governor Gary Herbert signed a bill reducing the legal limit for DUIs from .08 to .05.  On the surface, this reduction seems almost trivial – police officers already had the authority to give DUIs to anyone who they felt was operating a vehicle unsafely while under the influence of any drug – but the reality of the matter is that this bill appears intent on abolishing any and all drinking in any kind of public environment.  Enjoy a glass of wine at your favorite restaurant?  Think again.  Savor a beer or two at the bar during happy hour?  Kiss it goodbye.  Crave a cocktail at a club?  Good luck.

How Low is .05?

There’s no really easy way to estimate how many drinks will get you to a .05, apart from taking a breath/blood test.  Things like age, gender, metabolism, weight and the type of beverage consumed all have an impact on what your net BAC (blood alcohol content) level will be, and how long it’ll stay that way.  But, as an example, consider the following:

.05 BAC Level – Average 180lb Individual*

Beer: Two 12 Ounce Beers of 5%

(Average Beer – 12 Ounces)

Wine: Two 5 Ounce Glasses of 12%

(Average Bottle – 25.4 Ounces)

Liquor: Two 1.5 Ounce Shots of 40%

(Average Shot – 1.5 Ounces)

With such miniscule amounts in play, it seems that the way has been opened for officers to execute traffic stops on just about anyone who even flirts with the idea of drinking.  One can easily imagine police officers staking out restaurants and bars, eyeing the drinks being poured and making hasty estimations.  “Well, the guy only had one glass of wine, but you know, it looked like a pretty big pour – definitely more than 5 ounces.  I’m gonna pull him over.”  “Sure, she only had the one beer, but she looked like she weighed 150 pounds to me, so I pulled her over for a DUI.” Such is the reach of the new legislation.

The Pros and Cons

Now, most people have encountered someone who couldn’t handle their liquor – it is well documented that some people and ethnicities have the propensity to develop a higher tolerance for alcohol than others.  The teen who vomits after drinking a wine cooler; the roommate who passes out after a single beer; the driver who swerves in and out of lanes after their first shot – the examples are numerous and easily recognizable.  Even so, it is worthwhile to consider both the advantages and disadvantages of enacting a law designed to discourage moderate alcohol consumption among today’s liquor coinsures.


The swansong of the proponents of this reduction in the limit of the BAC level regulation while operating a vehicle is an old one: it saves lives.  Indeed, few tragedies compare to the needless loss of a loved one at the hands of an unsafely intoxicated driver.  And as to the facts, it remains a claim by the Utah Department of Highway Safety that, in 2015, of the 419 drivers tested for DUI – and who were also involved in a fatal crash – 31 of them tested at or above the .08 limit.

Whilst undoubtedly a laudable goal – saving lives, that is – one interesting statistic seems to have been overlooked by this new legislation.  That is, of the 419 tested drivers involved in fatalities, 228 of them tested below the .08 limit, and of them, only 7 tested between the ranges of .01-.07 (2.7% of the total drivers tested).  The remaining 221 tested negative for any trace of the substance.

In short – and assuming of course that the law was perfectly respected and enforced – perhaps 7 accidents involving fatalities might have been prevented in 2015, had the recently legislated regulation been enforced at the time.


Opposition to the new legislative limit on BAC levels which qualify for DUI charges is relatively straightforward, and falls into three separate categories: 1) the legislation is not supported by the facts; 2) the legislation directly targets responsible drinkers; and 3) the legislation is expected to have a dramatic impact on the Utah economy.

Regarding the first point – the threat posed by drivers operating motor vehicles while under the influence of alcohol at a BAC level between .01 and .07 – political maneuvering appears to have exaggerated the danger such drivers pose.  The numbers speak for themselves, as described above: only 7 recorded accidents involving fatalities also involved drivers with a BAC level of between .01 and .07 in all of 2015.  This figure contrasts sharply with the 31 accidents involving fatalities with drivers testing at a BAC of .08 or greater, and more sharply still with the 221 accidents involving fatalities with drivers testing at a BAC of 0.

Put bluntly, the statistics taken by the Utah Department of Highway Safety suggest that, for the reported accidents involving fatalities in 2015, drivers were around 85% more likely to be hit and killed by non-drinkers than by those operating under any influence of alcohol, let alone those drinkers operating a vehicle at the .01-.07 level.

As to the second objection to the new regulation, many have expressed concerns that the reduced .05 DUI limitation unfairly targets responsible drinkers.  Given the aforementioned statistics, the threat posed to drivers and their passengers by individuals operating vehicles below the .08 level is minimal.  Focus, it is argued, should instead be directed towards the causes behind fatalities involving the 85% of the non-drinker involved accidents – a far more dire threat.  That attention is being directed away from such a large proportion of fatality-related accidents raises serious questions, and suggests that alcohol consumers – and in the case of the new limitations, responsible alcohol consumers – have been deliberately targeted as scapegoats.

Finally, and arguably one of the most likely drawbacks of the new legal limit likely to directly influence the lives of Utahn’s – be they drinkers or otherwise – is the economic impact a .05 BAC limit will have on the state.  Placing a limitation such as this is expected to significantly drive down the revenues of hundreds of bars, restaurants, clubs and the like (nobody will want to drink at such venues if a single glass risks landing you with a DUI), and will also impact the workforce supporting those institutions, their families, and so on.

Utah’s tourist appeal – a significant part of the economy – is also likely to face severe challenges; already add campaigns are underway advertising the appeal of Colorado in contrast to Utah, as Colorado still maintains the .08 limit.  “Come on vacation; leave on probation,” goes the taunting slogan of those seeking to demean Utah’s new legislation.

The Alternatives

On announcing the introduction of the new limit, Governor Herbert made a series of comparisons between this .05 limit and a similar .05 limit enforced in other countries, including France and Italy.  What he did not point out was that many of these countries represent less of a parallel and more of an alternative to the Utah model.

In Italy, for example, while an individual operating a vehicle under the influence of alcohol at a BAC level between .05% and .07% faces a fine of between 500-2000 euros ($540.00 and $2161.00), and a 3 to 6 month license suspension, an individual operating a vehicle at levels that exceed .08% BAC faces fines between 800 and 6000 euros ($864.00 and $6484.50), several years of license suspension, and even imprisonment.

Rather than model itself on this proportional European DUI regulation, the new legislation in Utah accommodates no such distinction among offenders.  Individuals stopped whilst operating a vehicle at a .05% BAC level are liable to be subjected to the same penalties faced by those stopped at a .15% BAC level: thousands of dollars in fines, jail time and long terms of license suspension, to say nothing of the impound fees and attorney costs.  It hardly seems appropriate that such a heavy handed approach should be touted as a parallel to the alternative European regulation.

In the end, and whichever side of this debate a person might land on, one thing, at least, does seem clear: drinker or not, driver or not, this lower legal limit is almost certain to have an impact on the daily life of all Utahns.  While it might take a moment for the effects of this legislation to be widely felt – even the exact timeframe for the implementation of this new regulation remains in flux (sometime in 2018 or 2019) – it would seem that Utahn’s are poised to experience something which hasn’t been felt in the United States since the 1920’s: a repeat of the pains of prohibition itself.

Photo Courtesy of: Vlado@freedigitalphotos.net

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