Barbara Boxer

Prohibition Returns!

Teetotaling do-gooders attack your right to drink


On a May night in 2005, Debra Bolton, a lawyer and single mom from the Washington suburb of Alexandria, Virginia, was leaving the Café Milano in Georgetown after socializing with some friends. She had driven her SUV only a few hundred yards before she was pulled over by D.C. police for driving with the headlights off. She told the officer the parking attendant at Café Milano probably had turned off her vehicle's automatic light feature.

Not mollified, the officer asked Bolton to step out of the car, walk in a straight line, recite the alphabet, stand on one foot, and count to 30. He checked her eyes for suspicious jerkiness and insisted on a breath test for alcohol.

The breath test revealed that Bolton's blood alcohol content (BAC) was 0.03 percent, a level a 120-pound woman could expect after drinking one glass of wine. It was well below the 0.08 percent limit that marks a driver as legally intoxicated in D.C. It was not low enough for the arresting officer, however. This middle-aged mother of two, who hadn't drunk to excess, who hadn't run a red light or run a stop, was arrested, handcuffed, and fingerprinted for an innocent mistake. She sat in a jail cell for hours and was finally released at 4:30 a.m. Bolton spent four court appearances and over $2,000 fighting a $400 ticket. She then spent a month fighting to get her license back after refusing to submit to the 12-week alcohol counseling program.

The arresting officer, inaptly named Dennis Fair, insists: "If you get behind the wheel of a car with any measurable amount of alcohol, you will be dealt with in D.C. We have zero tolerance….Anything above 0.01, we can arrest." Fair recognized that nearly everyone in D.C. was unaware of this zero tolerance policy. Still, he told The Washington Post, if "you don't know about it, then you're a victim of your own ignorance."

Bolton's arrest was not the result of a single cop's overzealousness. In 2004 D.C. police arrested 321 people with BACs below the legal limit of 0.08 percent for driving under the influence. The year before, the number was 409.

After the Bolton incident, James Klaunig, a toxicology expert at the Indiana University School of Medicine, told The Washington Post, "There's no way possible she failed a [sobriety] test from impairment with a .03 blood alcohol level." Fair had claimed that Bolton swayed and lost her balance when taking the sobriety test, triggering the breath test.

A BAC test, one of the main tools used by law enforcement to catch drunk drivers, determines how much alcohol is present in the bloodstream. A BAC of 0.08 percent, for instance, means 0.0008 of your blood is alcohol. At that level, though, you're hardly slurring your words or staggering.

In 2000 President Clinton signed a federal law aimed at pressuring states to lower their BAC limits from 0.1 percent to 0.08 percent. States that didn't go along were threatened with the loss of federal highway funds. Karolyn Nunnallee, president of Mothers Against Drunk Driving (MADD), predicted that a nationwide 0.08 percent standard "will save nearly 600 lives every year."

It hasn't worked out that way. In the July 2007 issue of Contemporary Economic Policy, Sam Houston State University economist Donald Freeman examines the most recent data available and concludes "there's no evidence that lowering the BAC limits…reduced fatality rates, either in total or in crashes likely to be alcohol related." This is true, he found, both in states that adopted a 0.08 percent BAC standard on their own and in states that did so under federal pressure.

During the last decade, according to the National Highway Traffic Safety Administration (NHTSA), alcohol contributed to between 16,000 and 17,000 traffic-related fatalities a year, about two-fifths of the total such deaths. It used to be a good deal worse. Back in 1982, three-fifths of all traffic related fatalities were attributed to alcohol. Since then, ad campaigns and education have raised public awareness about the dangers of driving smashed. States have instituted stricter punishment for drunk driving, and law enforcement officials are also better prepared to ferret out drunk drivers. A lot of the credit must be given to the hard work MADD did in educating the public about the menace of drinking and driving.

But the decline in alcohol-related deaths persisted only until 1997. Since then the vehicular death toll attributed to alcohol has remained stable at around 40 percent. This stagnation in drunk driving deaths has caused considerable consternation among activists and law enforcement officials. Lately, the fight against drunk driving has shifted from serious alcohol abusers with no regard for the law toward responsible drinkers.

Neoprohibitionists aim to muddle the distinction between drunk diving and driving after drinking any amount of alcohol. Sen. Barbara Boxer (D-Calif.) endorsed the idea at a Senate Environment and Public Committee hearing way back in 1997, contending that we "may wind up in this country going to zero tolerance, period." Former MADD President Katherine Prescott concurred, in a letter to the Chicago Tribune, where she stated "there is no safe blood alcohol, and for that reason responsible drinking means no drinking and driving."

Technically she's correct. Driving is never completely safe, and many things drivers commonly do-including speaking on a cell phone, talking to passengers, applying lipstick, eating a sandwich, drinking coffee, adjusting the radio, reprimanding the kids in the back seat, and daydreaming about weekend plans-can make it riskier. As states and cities have begun focusing on zero tolerance (or "driving while distracted" laws, which target the diversions laid out above) they are losing focus on the real threat, namely habitually drunk drivers.

Drinking is under attack these days in ways we haven't seen since the failed experiment with national alcohol prohibition in the 1920s. Indeed, for many neoprohibitionists, that experiment wasn't a failure at all, since it did cut alcohol consumption, which is all that matters. We can see that mentality today in policies that go beyond preventing drunk driving or punishing drunk drivers and aim to discourage drinking per se.

Founder's Remorse
Although alcohol nannies generally support zero tolerance, one dissenting voice doesn't. "I thought the emphasis on .08 laws was not where the emphasis should have been placed," Candace Lightner told the Los Angeles Times in 2002. "The majority of crashes occur with high blood-alcohol levels, the .15, .18 and .25 drinkers. Lowering the blood-alcohol concentration was not a solution to the alcohol problem."

Lightner's views can't be easily dismissed by anti-alcohol activists. In 1980 her 12-year-old daughter, Cari, was killed by a hit-and-run driver on a suburban street in Southern California. When the perpetrator was apprehended, he was drunk. It turned out he had been convicted of driving while intoxicated four previous times-once just days before he killed Lightner's daughter. Even after his fifth, fatal offense, he received just a two-year sentence and avoided prison by serving time in a work camp and a halfway house.

The light sentence her daughter's killer received spurred Lightner to "fight to make this needless homicide count for something positive in the years ahead." She did that by founding MADD in 1980. She changed the world for the better by raising public awareness about the serious nature of drunk driving and promoting tough legislation against the crime. Due to Lightner's potent grassroots work, aggressive campaigning, and popularization of the concept of designated drivers, MADD grew rapidly in its first five years. By 1985 it boasted 364 chapters, 600,000 members, and a $12.5 million budget.

Lightner has moved on from MADD, and since then has protested the shift from attacking drunk driving to attacking drinking in general. "I worry that the movement I helped create has lost direction," she told The Cleveland Plain Dealer in 1992. BAC legislation, she said, "ignores the real core of the problem….If we really want to save lives, let's go after the most dangerous drivers on the road." Lightner said MADD has become an organization far more "neoprohibitionist" than she had envisioned. "I didn't start MADD to deal with alcohol," she said. "I started MADD to deal with the issue of drunk driving."

While it seems safe to assume that nearly every parent in the United States opposes drunk driving, the same cannot be said for MADD's efforts to stop drinking. Neither is every politician on board. In October 2005, responding to noisy complaints from local residents and negative national publicity, the D.C. Council decided, by a 9-3 vote, to abandon the zero tolerance policy that snared Debra Bolton. "D.C. is once again open for business," said council member Carol Schwartz. She said visitors "can come in and have a glass of wine and not be harassed or intimidated."
That's good news. Sadly, it's not the case everywhere.

Ignition Failure
More than 40 states require convicted drunk drivers to install ignition interlock devices: The driver breathes into a tube attached to the device, and if his blood alcohol concentration is measurable the vehicle won't start. Considering the high recidivism rate among drunk drivers, the interlock system may be a reasonable preventive measure for those who have proven they pose a danger to others. But what about people who have never been arrested, perhaps never even had a ticket, or who never drink under any circumstances? Can they be trusted to start their cars without taking a breath test?

In 2004 New Mexico state Rep. Ken Martinez (D-Grants) introduced a bill that would have forced every driver in his state to install an ignition interlock device. In addition to the indignity and inconvenience of breathing into a tube every time they start their cars, this requirement would cost drivers about $1,000 each to install the device, according to estimates by the states that require them. Incredibly, the bill breezed through the state's House of Representatives by a 45-to-22 vote. "Honestly, I put forward this bill to start some dialogue," Martinez told "And it became a very thought-provoking process….We want New Mexico to be a leader at using technology to curb some societal ills."

The New Mexico Senate, thankfully, let the bill die. But soon legislators in New York and Oklahoma were making noise about a universal interlock requirement. "If the public wants it and the data support it, it is literally possible that the epidemic of drunk driving could be solved where cars simply could not be operated by drunk drivers," Chuck Hurley, MADD's executive director, told USA Today in 2006. "What a great day that would be."

Pre-emptive War on Drunk Driving
Unfortunately, there is considerable precedent for such pre-emptive measures. In 2005 a Pennsylvania court rejected an appeal from a man whose driver's license was revoked by the state after he told doctors he knocked back more than a six-pack of beer a day. State law requires doctors to report any of a patient's physical or mental impairments if the doctors think it could compromise his ability to drive safely. Keith Emerich hadn't gotten in any legal trouble, related to drinking, driving, or anything else, and his job attendance was as exemplary. Yet a three-judge Commonwealth Court panel said the Pennsylvania Department of Transportation was justified in taking away Emerich's license-not because he had driven while intoxicated but because he might.

Numerous anti-DUI law enforcement tactics now taken for granted are not only unduly invasive but ineffective. Consider roadblocks, a well-intentioned preventive measure that does little more than waste time and create pollution. This form of anticipatory law enforcement intimidates social drinkers and fails to address hardcore drunks, who often simply avoid roadblocks, turning on side streets when they see the flashing sideshow ahead. It targets those who aren't driving recklessly, haven't had a single drink, and have places to go.

According to numerous studies and reports dating back to 1987, the chance of getting picked up at a roadblock for being intoxicated is minuscule. MADD is nonetheless an enthusiastic supporter of sobriety checkpoints. It claims roadblocks reduce fatal alcohol-related crashes by as much as 20 percent. Yet recent fluctuations in such crashes have no correlation with states that do or don't use checkpoints.

During the Christmas season of 2003 in Fairfax County, Virginia, a suburb of Washington not far from the site of Debra Bolton's arrest, local police took pre-emptive law enforcement to an absurd extreme, launching a sting operation that targeted 20 local bars and restaurants. The mission: apprehend "drunk" patrons before they try to drive. These drinkers were far from their cars and in some cases did not even own cars. What type of evidence did the police use to measure intoxication? According to one law enforcement official involved in the sting, the determination could be made based on unflicked cigarette ashes, an excessive number of restroom visits, noisy cursing, or a wobbly walk.

The raids involved 10 cops in SWAT-like outfits. In an interview with The Reston Times, the general manager of one targeted establishment said "they tapped one lady on the shoulder-who was on her first drink and had just eaten dinner-to take her out on the sidewalk and give her a sobriety test. They told her she fit the description of a woman they had complaints about, and that they heard she was dancing topless."

In one raid, of the 18 drinkers tested for sobriety, nine were hauled to jail for public intoxication. When asked to explain the rationale for the raids, then-Fairfax County Police Chief J. Thomas Mange declared that you "can't be drunk in a bar." Where can you be drunk? "At home. Or at someone else's home. And stay there until you're not drunk."

Following the logic of such operations, watching television under the influence in your own home may soon be grounds for paramilitary raids. A Super Bowl party, a wedding shower, or a bachelor party can attract dozens of guests, many of whom will be drinking. Why not target those people as well? They have cars.

It's true that "public intoxication" is illegal. So is jaywalking. Police should use common sense, allocating their resources to protect citizens as efficiently as possible. It's hard to believe the most pressing problem in all of Northern Virginia that night was an inebriated and allegedly topless woman.
The immediate effect of hauling a few boozy bar patrons down to jail is insignificant. But the alcohol nannies are counting on the long-term impact: Once word gets out, people will be less inclined to get sloshed anywhere, anytime.

Such policies sometimes backfire. After the Fairfax County raids, the entire city council of Herndon, Virginia, criticized the practice of targeting law-abiding businesses and drinkers. "It is the unanimous opinion of the council that police overstepped their bounds and overreacted," one member said.

Yet numerous states and municipalities are experimenting with Fairfax-style intimidation. In 2005 the Texas Alcoholic Beverage Commission warned that it would be conducting "Sales to Intoxicated Person Stings" in various parts of the Lone Star State. "We believe responsible adults should drink responsibly," said Heather Hodges, a MADD victims advocate involved in planning the operation, in a MADD press release. "A bar is not intended to be a place to get fall-down drunk." In March 2006, one of the first sting operations was conducted in a Dallas suburb where agents infiltrated 36 bars and arrested 30 people for public intoxication.

"It's killed our business," one Dallas bar owner told a local TV station. "People are scared to come out. I don't even drink, and I'm scared to go out, and it's not right. We don't want to put drunks on the road, but we don't want people to be afraid to do something that's legal. If they don't want people drinking, they should outlaw alcohol."

Bar None
MADD officials say they "strongly support" the right of alcohol-related crash victims to seek "financial recovery from establishments and servers who have irresponsibly provided alcohol to those who are intoxicated or to underage persons, or who serve past the point of intoxication individuals who then cause fatal or injurious crashes."

I'm not sure if any MADD leaders have been to a saloon lately, but the local Cheers-style tavern where everyone knows your name is all but dead. In large cities, working at a bar can mean serving alcohol to hundreds, if not thousands, of patrons each night. Once we train servers to double as psychics, MADD's liability principle will make sense. Until then, we can have mandatory breath tests for patrons. Once again, the neoprohibitionists stand for seemingly sensible policies that in practice make the sale and consumption of alcohol nearly impossible.

Most states have dram shop liability laws, which generally allow lawsuits to be brought by those injured by an inebriated person against the establishment which contributed to that person's intoxication. In Texas minors can sue a drinking establishment for their own injuries should they get their hands on enough alcohol to be intoxicated and hurt themselves. Under Illinois law, plaintiffs don't even have to prove a bartender was aware of the consumer's inebriation. In other states, dram shop liability extends to serving the "habitually intoxicated," who will be a cinch to identify for all those clairvoyant bartenders.

If getting drunk in a bar is to be forbidden, it makes sense to ban happy hour. Back in 1984, the Massachusetts legislature banned the practice of offering cheaper drinks during the traditional "happy hours" of 4 p.m. and 7 p.m.-or any other time. That law kicked off a wave of happy hour restrictions around the country. From Ohio, where bars were compelled to end two-for-the-price-of-one premiums at 9 p.m., to West Virginia, where bars must have food available during happy hours, to Mississippi and Oregon, where happy hours are still allowed but cannot be advertised, happiness is being snatched from law-abiding Americans across the land.

Such laws often have unintended consequences. When a 1990 Illinois law banning "happy hours" took effect, bars came up with a creative solution, changing "happy hours" to the even better "happy days." A "happy day" means reduced prices on drinks for the entire day, since the price of drinks cannot be legally changed during any one business day.

On its website, MADD condemns "Practices Which Encourage Excessive Alcohol Consumption," including happy hours, ladies' nights, and any fluctuations in prices that bring in consumers during what are usually slow hours. The group calls upon the "hospitality industry to voluntarily end all practices associated with excessive alcohol consumption." As a backup, MADD also supports the legal prohibition of such practices in all 50 states.

Sometimes bars want the state to help stop practices consumers love. Bar crawling is common in cities like New York, Chicago, and Los Angeles. Friends, typically in their 20s and 30s, get together and go from bar to bar. To attract such groups, some bars offer unlimited drinks for a fixed price. In 1999 New York Gov. George Pataki signed into law a ban of the practice, asserting that it encourages "irresponsible binge-drinking."

Even if that's true, adult binge drinking is none of Pataki's business, since adults have the right to get smashed as long as they don't hurt anyone else. But bar and nightclub owners didn't mind when Albany prevented them from engaging in this sort of expensive price war. The pubs' chief trade group lobbied strenuously to get the state to stop the practice.

Alcohol nannies also have targeted sporting arenas, blaming alcohol for every brawl or other instance of misconduct by fans. George Hacker, director of alcohol studies at the Center for Science in the Public Interest, suggests several solutions, including a ban on selling beer in the stands, a reduction in the size of a beer serving from 16 to 10 ounces, a 3.2 percent limit on beer alcohol content, the elimination of beer signs, and aggressive police identification of "people who are obviously intoxicated." Although brawls occur at a tiny percentage of sporting events, alcohol nannies latch onto them as an excuse to interfere with the enjoyment of millions of fans.

Drinking may not be a prerequisite for a happy life, but it's a ritual most Americans have enjoyed as long as the nation has existed, and harmlessly so in the overwhelming majority of cases. Although I'm not an exceptionally heavy drinker, I can't, and don't want to, imagine a life without alcohol. As long as I'm not endangering anyone else, I shouldn't have to.

David Harsanyi, a columnist at the Denver Post, is the author of Nanny State: How Food Fascists, Teetotaling Do-Gooders, Priggish Moralists, and Other Boneheaded Bureaucrats Are Turning America Into a Nation of Children, from which this article is adapted. Published by Broadway Books, a division of Random House, Inc. © Copyright 2007 by David Harsanyi.