1 - Introduction

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.

Restrictions Covering Organizations That Receive Federal Funds

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.

The Case for .08 per se

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.

Legislation at the Federal Level

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.

Legislation at the State Level

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.

Table 1: States/Jurisdictions 
with .08 per se Laws
State/Jurisdiction Effective Date
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.)

  1. Figures provided by the National Highway Traffic Safety Administration (NHTSA), based on the Fatality Analysis Reporting System (FARS). 
  2. The use of the acronym "DWI" throughout this report refers to the criminal action of driving a motor vehicle, either 1) while "illegal per se" or 2) while impaired, under the influence, or while intoxicated by either alcohol or other drugs. Usage of the term "DWI" and other acronyms (DUI, OWI, OUI) varies from state to state based on the different statutes in each state.
  3. The American Medical Association actually endorses an illegal limit of .05 BAC.
  4. See NHTSA's publication "Setting Limits, Saving Lives: The Case for .08 BAC Laws" or the agency's website at www.nhtsa.dot.gov
  5. A review of supporting scientific literature appears in: Moskowitz, H., & Fiorentino, D. (2000). A Review of the Literature on the Effects of Low Doses of Alcohol on Driving-Related Skills (DOT HS 809 028). Washington DC: National Highway Traffic Safety Administration.
  6. See: Alcohol Limits for Drivers: A report on the Effects of Alcohol and Expected Institutional Responses to New Limits (DOT HS 807 692). Washington DC: National Highway Traffic Safety Administration, February 1991. "There is little difference in relative risk for drivers with BAC levels between zero and 0.05 (at most 1.5 times). There appears to be an increase in relative risk at BACs between 0.05 and 0.10 (the estimates of relative risk for drivers with a BAC at 0.10 ranges from 1.5 times to 12 times the risk of drivers with a zero BAC), with the rate of increase in relative risk accelerating above 0.10 (at a BAC of 0.15 the range is 2 to 20 times the relative risk of drivers at zero BAC). For the most part, all of these curves share the same general shape with some increase in relative crash risk between zero and 0.05, followed by a more rapid increase in risk around 0.08 to 0.10." (p. 32)
  7. National Highway Traffic Safety Administration (1991). The Effects Following the Implementation of an 0.08 BAC Limit and an Administrative per se Law in California (DOT HS 807 777). Washington, DC: National Highway Safety Administration.
  8. Hingson, R., Heeren, T., & Winter, M. (1996). Lowering State Legal Blood Alcohol Limits to 0.08%: The Effect on Fatal Motor Vehicle Crashes. American Journal of Public Health, 86, 1297-1299. 
  9. Johnson, D., & Fell, J. (1995). The Impact of Lowering the Illegal BAC Limit to .08 in Five States in the U.S. 39th Annual Proceedings of the Association for the Advancement of Automotive Medicine, October 16-18, 1995 (pp. 45-64). Chicago, IL. 
  10. Hingson, R., Heeren, T., & Winter, M. (2000). Effects of recent 0.08% legal blood alcohol limits on fatal crash involvement. Injury Prevention, 6, 109-114.
  11. Voas, R.B., & Tippetts, A.S. (1999). The Relationship of Alcohol Safety Laws to Drinking Drivers in Fatal Crashes (DOT HS 808 980). Washington, DC: National Highway Traffic Safety Administration. 
  12. Voas, R., Taylor, E., Baker, T.K., & Tippetts, S. (2000) Effectiveness of the Illinois .08 Law. (DOT HS 809 186). Washington, DC: National Highway Transportation Safety Administration.
  13. See: Balmforth, D. (1998). National Survey of Drinking and Driving Attitudes and Behavior: 1997 (DOT HS 808 844). Washington, DC: National Highway Traffic Safety Administration. This report is the fourth in a series of biennial national surveys undertaken by the NHTSA starting in 1991.
  14. NHTSA's Office of Chief Counsel has determined that Rhode Island's law does not fully comply with the criteria set forth in TEA-21, and therefore the State is not eligible to receive funds under the Act. It is the agency's opinion that Rhode Island's 2000 law does not make driving while intoxicated with a BAC of .08 the standard driving while intoxicated offense (or equivalent to that offense) in the State for the following reasons: under the new Rhode Island law, a first time offense is not considered to be a criminal offense, .08 offenders are subject to a less severe set of sanctions than .10 offenders, and many of the sanctions available are permissive rather than mandatory.