That's the ill-conceived suggestion from Austin Police Chief Art Acevedo, who wants to create a new crime - "Driving While Ability Impaired" - to go after drivers who've been drinking but whose blood alcohol content (BAC) is below the legal .08 limit, the Austin Statesman's Mike Ward reported yesterday.
Austin Police Chief Art Acevedo, among the supporters of the change, said the idea behind a new offense of "driving while ability impaired" — DWAI — would cover drivers whose blood-alcohol content is between 0.05 and 0.07.
That would be less than the 0.08 level required before police can charge a motorist with drunken driving.
A first-offense DWI is a Class B misdemeanor punishable by up to 180 days in jail and a $200 fine, plus potential driver's license restrictions. No specific penalty has been proposed for DWAI.
Though Acevedo said he does not support lowering the DWI limit below .08, "the new offense would give prosecutors and judges and juries another tool to use" in thwarting impaired drivers across the state. ...
The reason is that thousands of drivers arrested for DWI are being allowed to plead guilty to lesser crimes such as reckless driving or obstructing a roadway. Such plea deals allow them to escape alcohol counseling and driver's license restrictions, according to testimony before the Senate panel in July by police officials, prosecutors and judges. ...
Of the 7,165 DWI cases filed in Travis County in 2009, 2,216 were dismissed, according to statistics provided by Austin police to the Senate committee. Court officials have said many of those pleaded to reduced charges.The fly in the ointment here is that Acevedo fails to match his suggested solution to the ostensible problem. The reason many DWIs are allowed to plead guilty to lesser charges is simple and easily fixable: Prosecutors and judges across the state recognize that many defendants cannot pay the high Driver Responsibility Surcharge - $1,000 per year for three years on top of criminal penalties for a first DWI offense, going up from there - and so plead the cases to something more reasonable. Regular readers know that sometime soon the Department of Public Safety will release new rules creating Indigency and Amnesty programs for the Driver Responsibility Program, which may partially help the problem. Many legislators (and this writer) would like to see the DRP completely abolished.
Even Mothers Against Drunk Driving has admitted that surcharge doesn't reduce drunk driving: “We can't point to anything that says that law has caused a decline in alcohol-related fatalities,” their legislative liaison told the Houston Chronicle earlier this year. “We're not going to go nuts if the Legislature decides they want to repeal it.” When asked in a House Public Safety Committee hearing if the surcharge had reduced the number of DWIs or increased the number of Texas drivers with insurance, Department of Public Safety executive director Steve McCraw replied "No sir, not at all."
Focusing enforcement on those with lower BACs won't improve public safety. The reality is that the vast majority of drunk drivers in the .08 range get home safely. The average BAC for those involved in fatal accidents is .16, and most drivers involved in fatal accidents have BAC's much higher than .08. Given limited resources, enforcement should be targeted on those actually posing the greatest risk, which means those with high BAC. Pushing the range lower makes no sense: It's a solution looking for a problem.
There's also an issue of simple fairness: Right now, a DWI is already a Class B misdemeanor. Unless the proposed DWAI is made a Class C - which is a fine-only offense where jail time is not an option for punishment - this "DWI-lite" would create a new crime with the same punishment range as DWI for a lesser offense. If that's the goal, why not just reduce the blood alcohol content requirement from .08? We don't need ever-more crimes on the books, we need the thousands of statutes we have to work better. There are already other Class C charges on the books - reckless driving, for example - which may apply when drivers under the legal limit pose a threat to others.
I'll say it again: The solution to every social problem cannot be more criminal laws, more cops and more jails. Structural solutions like expanding public transportation would have a much greater impact.
MORE: From Paul Kennedy.