There is every good intention behind Senate Bill 2096, a measure aiming at lowering the threshold for a blood alcohol concentration (BAC) that would trigger an arrest for driving under the influence. The aim is to deter people from drinking and driving while impaired, which is clearly needed in Hawaii and nationally.

The question is: Will this change in the law do the trick? After the latest legislative hearing on this proposal — another version of the bill was held in committee last session — the proponents have not yet made a persuasive case.

SB 2096 was heard on Friday before the Senate Judiciary Committee (view it at It was passed, with Sens. Donna Mercado Kim and Kurt Fevella voting no.

Under the current statute, the crime of “operating a vehicle under the influence of an intoxicant” is committed by a driver found to have a BAC at .08 grams of alcohol per deciliter of blood.

If enacted, the bill would lower that limit to .05. What is bolstering the discussion is a study released this month by the National Highway Traffic Safety Administration (NHTSA), research examining the impact of a 2017 Utah law that made the same change. Many other countries have set the bar at .05, but Utah is the first U.S. state.

In the first 12 months after the law went into effect, NHTSA reports a reduction in the number of crashes causing injuries or fatalities per 100 million vehicle miles traveled. It’s a significant drop — about 10.8%, according to NHTSA estimates.

It also shows a decline in the percentage of drivers testing positive for alcohol. There, the reduction range was an estimated 22-23% for each BAC level reported: .05, .08 and .15.

The study was cited frequently in testimony on the bill, which drew strong support from influential stakeholders. These include the state Department of Transportation, county police departments, Mothers Against Drunk Driving Hawaii, the National Safety Council and numerous individuals.

“We’ve been trying to pass this law for years,” said acting Maj. James Slayter of the Honolulu Police Department Traffic Division, in remarks delivered via the internet. The .05 level is applied if there is a motor vehicle accident, Slayter said, so there is some credence to it being a benchmark for impairment.

About the Utah study, he noted that while there was an uptick in incidents in 2020, this was true nationally and that it likely was reflective of the increased substance use during the pandemic.

There were comments submitted in opposition from beverage-industry groups. Their interest in the bill is plain enough, but they did raise a point worth considering on the merits. How certain is it that improvements in traffic statistics are owed to this change?

Richard Berman, executive director of the American Beverage Institute, submitted testimony stating that the study does not establish that the new law actually caused the improvement.

“Yes,” he said in prepared remarks, “Utah has experienced a drop in alcohol-related fatalities since 2016, but so have more than 30 other states — all of which, besides Utah, have retained the .08 BAC standard.”

That assertion was echoed by Deputy Public Defender Sara Haley, who cited figures in the report showing fluctuation in the fatality rates over 10 years, regardless of the law change.

“In 2012 and 2013 there were similarly low rates of fatalities,” she said. Haley added that .05 BAC does not create an impairment that needs to be criminalized.

This is the point: Would SB 2096 get people off the road who cause the real problem? Until that question is answered, it may indeed be casting too wide a net — and catching the wrong people.

Original Outlet: Honolulu Star Advertiser
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