On March 3, 1998, President Clinton addressed the Nation on setting new standards to prevent the many tragic and unnecessary alcohol-related deaths and injuries that occur on the Nation's roads. (In 1999, there were 15,786 alcohol-related traffic fatalities in the U.S. - 38% of the total traffic fatalities for the year. This represents an average of one alcohol-related fatality every 33 minutes.1) Among other measures to deter impaired driving, the President called for the promotion of a national limit, under which it would be illegal to operate a motor vehicle with a blood alcohol concentration (BAC) of .08 or higher. An illegal per se law makes it illegal in and of itself to operate a motor vehicle with an alcohol concentration measured at or above the established illegal level, regardless of whether or not the driver exhibits visible signs of intoxication.
The federal agency charged with implementing the President's directive is the National Highway Traffic Safety Administration (NHTSA) of the U.S. Department of Transportation. Long before the President issued his directive in 1998, NHTSA had sponsored several studies on the effectiveness of .08 per se laws. In a 1992 Report to Congress, the agency recommended that all states should enact .08 per se laws for drivers 21 years of age or older. In 1997, NHTSA established an action plan to reduce alcohol-related driving fatalities on U.S. highways to 11,000 by the year 2005. NHTSA's plan, titled Partners in Progress: An Impaired Driving Guide for Action, recommended that all states pass a wide range of measures to combat DWI,2 including the enactment of illegal per se laws, and illegal limits of .08 BAC.
It is important to note that Federal law prohibits the use of Federal funds for the purpose of influencing a member of Congress to favor or oppose legislation, whether or not the legislation is currently pending. This restriction prohibits the use of Federal funds for grassroots lobbying. Federal law also prohibits the use of Federal funds to influence or attempt to influence an agency or a member, officer or employee of Congress in connection with the awarding, making, entering into or extending of a Federal contract, grant or cooperative agreement.
Additional lobbying restrictions apply specifically to programs funded by the U.S. Department of Transportation (DOT). For example, the fiscal year 2001 DOT Appropriations Act prohibits the use of DOT funds (including NHTSA funds) for grassroots lobbying activities. In addition, the Transportation Equity Act for the 21st Century (TEA 21), as amended by the TEA-21 Restoration Act, prohibits the use of NHTSA funds for "any activity specifically designed to urge a State or local legislator to favor or oppose the adoption of any specific legislative proposal pending before any State or local legislative body" (exception that testimony may be provided for or against pending legislation, in response to an invitation from a member of a State or local legislative body or the State executive office).
Taken together, these restrictions prohibit the use of NHTSA funds for direct lobbying activities and grassroots lobbying activities that specifically target pending State or local legislative bills. They do not apply to State officials engaged in direct communications with their legislatures, under customary practice in the State.
Although NHTSA is the lead federal agency, other government agencies and non-governmental agencies as well have been very vocal in their support of .08 per se laws. The following list, though not comprehensive, represents a sampling of other organizations that support the .08 movement:
These organizations, as well as others not listed above, believe that all states should establish .08 BAC as the illegal limit for the following reasons4:
(1) Virtually all drivers are substantially impaired at .08 BAC. At .08 BAC, there are significant decrements in performance of critical driving tasks such as braking, steering, lane changing, judgment and divided attention.5
(2) The risk of being involved in a crash increases substantially by .08 BAC. Compared to drivers with no alcohol in their blood system, the risk of being in a crash gradually increases at each BAC level, but rises very rapidly after a driver reaches or exceeds .08 BAC.6
(3) Lowering the per se limit is a proven effective countermeasure that will reduce alcohol-related traffic fatalities. NHTSA cites a number of studies to substantiate this claim. For example, a study in California found a 12% reduction in alcohol-related fatalities in 1990, the year .08 per se and administrative license revocation laws went into effect.7 A study by Boston University compared five states that lowered their illegal limits from .10 to .08 with five states that did not do so. Researchers found a 16% reduction in the proportion of fatal crashes involving fatally injured drivers whose BACs were .08 or higher in the five .08 states. That same study showed an 18% reduction in the proportion of fatal crashes involving fatally injured drivers at very high BAC levels (.15 or higher) in those .08 states.8 In a 1995 NHTSA study, four states that adopted a .08 BAC limit experienced significant decreases on several measures of alcohol-related fatalities. Decreases in alcohol-related fatalities ranged from 4% to 40% in those states that were studied.9
More recent studies completed in 1999 and 2000 have continued to quantify the effectiveness of .08 per se laws. A study by a team of researchers from Boston University's School of Public Health concluded that states that lowered their illegal levels from .10 to .08 BAC in 1993 and 1994 experienced post-law reductions in alcohol-related fatal crashes.10 A NHTSA-sponsored 1999 study of 50 states and DC concluded that states which enacted .08 BAC laws experienced an 8% reduction in the involvement of drivers with both high and low BAC levels, when compared with the involvement of sober drivers.11 Another report, which studied the effectiveness of the .08 per se law in Illinois, concluded that the number of drivers in fatal crashes with positive BACs in Illinois decreased by 13.7% after implementation of the law.12
(4) A BAC of .08 is a reasonable level at which to set the illegal limit. A .08 BAC is not typically reached with a couple of beers after work, or a glass or two of wine with dinner. The average 170 pound male would have to consume more than four 12 oz. cans of beer within 1 hour on an empty stomach to reach .08 BAC. The average 137 pound female would need at least three cans of beer in one hour on an empty stomach to reach that level.
(5) The public supports levels below .10 BAC. NHTSA surveys show that most people report they would not drive after consuming up to 2 drinks in two hours, and a majority of those who are aware of BAC levels support an illegal limit of .08 or lower for their state.13
(6) Most other industrialized nations have set BAC limits at .08 or lower and have had these laws in place for many years. Austria, Switzerland, Canada and the United Kingdom have set limits at .08. All of the states in Australia have a .05 limit. France and Germany also have a limit of .05, while Sweden's illegal limit is .02 BAC.
Beginning in 1982, Congress developed a series of grant programs to encourage states to enact strong and effective impaired driving laws.
The Section 408 program was created by Congress in 1982. To qualify for a basic grant under the Section 408 program, states were required to meet four criteria, including the enactment of a .10 BAC per se law. States that qualified for basic grant funds could qualify for supplemental grants based on additional criteria, including the enactment of a .08 per se law.
In 1988, Congress created the Section 410 program. To qualify for a basic grant under the Section 410 program, states were required to meet five out of seven criteria. One of these seven criteria was the enactment of a per se law. Furthermore, to qualify under this criterion, during the first three years that a state received section 410 basic grant funding, the illegal limit had to be set at .10 BAC or lower. To continue to qualify under this criterion after the initial three years of basic funding, the illegal limit in the state had to be set at .08 BAC. States that set the illegal limit at .08 BAC during the first three years of section 410 basic grant funding were eligible for additional supplemental grant funds. Thirty-eight states qualified for incentive grants under the Section 410 program in 1997 and 1998.
On May 22, 1998, Congress passed the Transportation Equity Act for the 21st Century ("TEA 21"), authorizing highway, highway safety, transit and other programs for the next six years. TEA 21 provides $500 million of incentive grants over 6 years to states that have enacted and are enforcing a .08 BAC per se law. These grants are to be based on what a state receives under NHTSA's State and Community Highway Safety Formula Grant Program, under Section 402 of Title 23, U.S. Code. The grant funds may be used for any project eligible under Title 23, which may include highway construction as well as highway safety projects.
Also in 1998, the Senate version of the Department of Transportation's Appropriations Bill included language that would have encouraged states to adopt .08 per se by diverting highway construction funds to safety programs unless .08 laws were adopted. Despite the Clinton administration's endorsement of the measure, no such language appeared in the 1998 House version of the bill, and the provision was removed in conference committee.
In October 2000, the Department of Transportation's 2001 Appropriations Act (HR4475) was passed by both chambers of the U.S. Congress and signed by President Clinton. The Act provides that states must pass a .08 per se law by 2004 or begin losing federal highway construction funds. States that do not implement .08 BAC by 2004 will lose 2 percent of their highway money, with the penalty increasing by 2 percent each year, until it reaches 8 percent beginning in FY2007. States that adopt the .08 limit by 2007 will get back all of the funds lost in previous years.
As of May 2001, forty-nine states, plus the District of Columbia and Puerto Rico, had enacted per se laws (the exception is Massachusetts, where an .08 BAC is considered evidence of impairment, but it is not illegal per se.). Twenty-five states, plus the District of Columbia and Puerto Rico, had established .08 BAC per se as the illegal limit. The remaining states have a .10 BAC per se limit.
| State/Jurisdiction | Effective Date (Year) |
|---|---|
| Utah | 1983 |
| Oregon | 1983 |
| Maine | 1988 |
| California | 1990 |
| Vermont | 1991 |
| Kansas | 1993 |
| North Carolina | 1993 |
| New Mexico | 1994 |
| Florida | 1994 |
| New Hampshire | 1994 |
| Virginia | 1994 |
| Hawaii | 1995 |
| Alabama | 1995 |
| Idaho | 1997 |
| Illinois | 1997 |
| Washington | 1999 |
| Texas | 1999 |
| District of Columbia | 1999 |
| Rhode Island14 | 2000 |
| Kentucky | 2000 |
| Puerto Rico | 2001 |
| Arkansas | 2001 |
| Maryland | 2001 |
| Nebraska | 2001 |
| Arizona | 2001 |
| Georgia | 2001 |
| Indiana | 2001 |
During the 1999 state legislative sessions, 23 states introduced .08 per se bills. Only Texas and the District of Columbia were successful in passing the legislation. (A .08 per se BAC became effective in Washington State in 1999, but the law was passed during the 1998 legislative session.)