Lowering the Blood Alcohol Content (“BAC”) for drunk driving from .08% to .05% has been gaining traction in states across the country and the press is starting to pick up on it. On May 14, 2013 NBC News reported that the National Transportation Safety Board (“NTSB”) recommended that all states lower their BAC levels for drunk driving to .05%. In issuing its recommendation, the NTSB cited the increase in accidents across the country when a driver has a BAC of .05% versus .08%. According to the NTSB, a driver who has a BAC of .05% is 39% more likely to be involved in traffic accident. Similarly, the NTSB noted that a driver with a .08% BAC has a 100% greater chance of being involving in a car accident than someone with a BAC of 0.0%. What the NTSB failed to disclose in its report is the methodology for collecting the information on drivers blood alcohol content and a state by state breakdown of the results. For example, if the NTSB only included in its report those drivers who had alcohol in their blood stream at the time of the accident, then theoretically everyone who is involved in a car accident has a 100% greater chance of being in an accident then someone who did not have alcohol in their blood system. This is a classic ends justify the means argument where the data used to justify the ends, i.e., the lowering of the BAC limit for drunk driving, is fungible. Another striking reality of the NTSB’s proposed action in lowering the drunk driving BAC limit to .05 is the lack of accountability and public debate in lowering the drunk driving limit. As Jonathan Turley, a leading constitutional scholar and professor of law at George Washington Law, points out in recent article, One Drink Maximum, the NTSB as a federal agency, does not need the seal of approval from Congress to pass the “legislation” to lower the blood alcohol limit. As Professor Turley points out, federal agencies are quasi-fourth branch of government, and their decisions, which effectively amount to laws, are insulated from debate in public forums. As a result, the NTSB can simply “decide” to lower the federal drunk driving limit to .05% and it can be implemented in a state such as Pennsylvania through the federal government withholding state funds if Pennsylvania does not lower its drunk driving limits. This is the exact same type of action the federal government took to force states to raise the legal drinking age from 18 to 21 (withholding highway and road repair funding unless the state had a drinking age of 21).
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