New York's legal BAC threshold for DWI charges is 0.08%. Would reducing it save lives?
A car crashed into a Deer Park nail salon June 28, killing four people, injuring nine and destroying the business. The driver has been charged with drunken driving. Credit: Paul Mazza
A motorist who told police he downed 18 beers the night before barreled through the front of a Deer Park nail salon in an out-of-control Chevrolet Traverse last month, killing four people, including an off-duty NYPD officer, while injuring nine others.
The devastation from the latest multi-victim alcohol-involved fatality brought into clear focus a growing calamity for Long Island motorists and pedestrians. Fatal motor vehicle crashes involving drunken drivers are on a precipitous rise across the state and now represent nearly one in three traffic deaths across Long Island, federal statistics show.
But some state lawmakers and safe-driving advocates contend the growing death toll could be slashed by adopting legislation lowering the legal threshold for what constitutes driving while under the influence of alcohol from the current blood alcohol concentration limit of 0.08% down to 0.05%.
The National Transportation Safety Board estimates that enacting lower BAC laws nationwide would result in an 11% decline in fatal alcohol-related crashes and save at least 1,700 lives annually.
Leaders in the state’s hospitality industry, however, fear the measure will hurt their bottom line while preventing few fatal crashes — the bulk of which involve drivers with considerably higher intoxication levels.
The legislation, which has been proposed without success in Albany for more than a decade, received new life last month when State Comptroller Thomas DiNapoli suggested lowering the BAC level for drunken driving arrests to counter New York’s 45% increase in DWI fatalities between 2019 and 2022. That figure is 12% higher than the national average, DiNapoli said.
On Long Island, where 31% of all fatal crashes involve a motorist driving under the influence, 90 people died in alcohol-related crashes in 2022, according to the Institute for Traffic Safety in Albany.
“New York State is in crisis with the number of fatalities,” said Alisa McMorris of Wading River, whose 12-year-old son Andrew was killed in 2018 by a drunken driver while hiking with his Boy Scout troop in Manorville and who has spent years lobbying for lowering the BAC level. “Our legislators must act now before another family has to endure an empty cap and gown for a child who never makes it to his high school graduation.”
Assemb. Jo Anne Simon (D-Brooklyn), who has sponsored bills lowering the BAC level in recent sessions — and plans to reintroduce a bill once again when the legislature returns in January — said the measure will save lives.
“We know that at 0.05 there are cognitive and psychomotor changes that affect driving ability,” Simon said. “If you’re lacking in judgment and lacking in reaction time, you shouldn’t be driving at that level. We think this bill would make a big difference and obviously the need is there.”
Scott Wexler, executive director of the Empire State Restaurant & Tavern Association in Albany, agrees DWI crashes are a growing problem. But he notes the overwhelming majority of fatal crashes involving alcohol are caused by drivers who are well above the legal limit of 0.08%.
Only 4% of drivers tested in fatal crashes in New York had a BAC between 0.06% and 0.08%, according to a 2018 study by the Institute for Traffic Safety Management and Research.
“People who talk about lowering the BAC to 0.05% as a significant and effective measure are just missing the mark,” Wexler said, adding he’s also concerned the law could hurt business at bars and restaurants. “What’s been effective has been laws increasing the penalties on those that are repeat offenders and those that have high BAC levels … What we need is increased enforcement of all traffic safety issues, including speeding, texting while driving and aggressive driving.”
It takes about three drinks in one hour for an average 180-pound man to exceed a 0.05% BAC level, or two drinks for an average 120-pound female. BAC levels would then drop by about .015% for every hour thereafter when an individual is not consuming alcohol.
Intoxication levels, however, generally depend on an individual’s age, gender, weight, as well as the strength of the alcohol, the amount of food eaten and their metabolism rate.
In 2013, the National Transportation Safety Board issued a safety recommendation to all 50 states to establish a BAC of 0.05%, citing the decline in coordination and motor function motorists experience at that impairment level.
While six states introduced bills to lower the BAC level, Utah is the only one to have adopted the measure.
A 2022 National Highway Traffic Safety Administration study found Utah’s fatal crash rate dropped by nearly 20% in 2019, the first year under the new legal limit, despite an increase in the total number of vehicle miles traveled across the state.
Utah Republican state Rep. Norm Thurston, who sponsored the bill, said the impact of the legislation has been measurable, without damaging the state’s hospitality industry.
“It’s not a perfect answer and it will not take you all the way to zero fatalities,” Thurston said. “But I do believe it will reduce the number of people who choose to drive after drinking and that will save lives, all without the loss of any personal freedom. We need people to recognize that you’re free to choose to drink and you’re free to drive. But you’re not free to do both.”
Opposition from the hospitality industry isn't the only hurdle preventing passage of the bill, which has been introduced in Albany in each session dating back to 2013.
A bigger challenge, experts said, is that New York already has a law on the books penalizing drivers with lower BAC levels.
A motorist with a BAC of 0.05% to 0.07% can be hit with a charge of driving while ability impaired if a police officer believes the driver’s ability to operate a motor vehicle has been affected by alcohol to any degree.
But first and second offenses for DWAI are considered traffic offenses, punishable by fines of a few hundred dollars and a maximum jail sentence of 15, and 30 days, respectively — although most cases get pleaded down to no jail time, experts said.
Only on a third DWAI offense within 10 years can a motorist be charged with a misdemeanor, punishable with a maximum sentence of 180 days behind bars.
Tom Louizou of the 05 Saves Lives Coalition, which advocates for lowering the BAC threshold, said the current DWAI threshold is not a sufficient deterrent to prevent drivers from getting behind the wheel after drinking.
“New York could save anywhere from 30 to 35 lives a year by going to 0.05,” said Louizou, a retired National Highway Traffic Safety Administration regional administrator. “Of course, everything depends on enforcement.”
Worldwide, more than 100 countries have adopted laws lowering their BAC limit to 0.05%, including England, France, Germany, Greece, South Africa, Thailand, Spain and Switzerland.
“We need people to understand that this will be the global standard,” said State Sen. John Liu (D-Flushing), the bill’s lead Senate sponsor, and who plans to reintroduce the bill next year. “It’s a question of whether we are going to lead or if we’re going to be dragged along with it.”
Gov. Kathy Hochul will review the legislation if it passes in both legislative houses, said Gordon Tepper, a spokesman for the governor.
“This is not meant to be looked at as a punishment,” said Paige Carbone, regional executive director of Mothers Against Drunk Driving, which supports lowering the BAC level. “It's meant to be looked at as a behavior modification for people to think about their relationship with alcohol and getting behind the wheel before they do it.”
Last month, Alisa and John McMorris, Andrew’s parents, accepted his posthumous diploma at Shoreham-Wading River High School as his name was read along with what would have been his graduating class. Alisa McMorris said adopting a lower BAC level will prevent other families from experiencing similar heartbreak.
“The pain is too difficult to put into words,” she said. “I have a hole the shape and size of Andrew in my heart that will never be filled. My family and I build our world around this gaping wound in hopes of saving others the horror of losing a loved one to something that is 100% preventable.”
With Lorena Mongelli
A motorist who told police he downed 18 beers the night before barreled through the front of a Deer Park nail salon in an out-of-control Chevrolet Traverse last month, killing four people, including an off-duty NYPD officer, while injuring nine others.
The devastation from the latest multi-victim alcohol-involved fatality brought into clear focus a growing calamity for Long Island motorists and pedestrians. Fatal motor vehicle crashes involving drunken drivers are on a precipitous rise across the state and now represent nearly one in three traffic deaths across Long Island, federal statistics show.
But some state lawmakers and safe-driving advocates contend the growing death toll could be slashed by adopting legislation lowering the legal threshold for what constitutes driving while under the influence of alcohol from the current blood alcohol concentration limit of 0.08% down to 0.05%.
The National Transportation Safety Board estimates that enacting lower BAC laws nationwide would result in an 11% decline in fatal alcohol-related crashes and save at least 1,700 lives annually.
WHAT TO KNOW
- Albany lawmakers plan to reintroduce legislation early next year lowering the legal threshold for what constitutes driving while under the influence of alcohol from the current limit of a 0.08% blood alcohol concentration down to 0.05%.
- Utah, which lowered its BAC level for DWI, saw its fatal crash rate drop by nearly 20% in 2019, the first year under the new legal limit.
- Experts said motorists experience a decline in coordination and motor function at a 0.05% BAC, but critics of lowering the legal threshold contend most fatal crashes involve drivers with considerably higher intoxication levels.
Leaders in the state’s hospitality industry, however, fear the measure will hurt their bottom line while preventing few fatal crashes — the bulk of which involve drivers with considerably higher intoxication levels.
Spike in NY's DWI fatalities
The legislation, which has been proposed without success in Albany for more than a decade, received new life last month when State Comptroller Thomas DiNapoli suggested lowering the BAC level for drunken driving arrests to counter New York’s 45% increase in DWI fatalities between 2019 and 2022. That figure is 12% higher than the national average, DiNapoli said.
On Long Island, where 31% of all fatal crashes involve a motorist driving under the influence, 90 people died in alcohol-related crashes in 2022, according to the Institute for Traffic Safety in Albany.
“New York State is in crisis with the number of fatalities,” said Alisa McMorris of Wading River, whose 12-year-old son Andrew was killed in 2018 by a drunken driver while hiking with his Boy Scout troop in Manorville and who has spent years lobbying for lowering the BAC level. “Our legislators must act now before another family has to endure an empty cap and gown for a child who never makes it to his high school graduation.”
Assemb. Jo Anne Simon (D-Brooklyn), who has sponsored bills lowering the BAC level in recent sessions — and plans to reintroduce a bill once again when the legislature returns in January — said the measure will save lives.
“We know that at 0.05 there are cognitive and psychomotor changes that affect driving ability,” Simon said. “If you’re lacking in judgment and lacking in reaction time, you shouldn’t be driving at that level. We think this bill would make a big difference and obviously the need is there.”
Scott Wexler, executive director of the Empire State Restaurant & Tavern Association in Albany, agrees DWI crashes are a growing problem. But he notes the overwhelming majority of fatal crashes involving alcohol are caused by drivers who are well above the legal limit of 0.08%.
Only 4% of drivers tested in fatal crashes in New York had a BAC between 0.06% and 0.08%, according to a 2018 study by the Institute for Traffic Safety Management and Research.
“People who talk about lowering the BAC to 0.05% as a significant and effective measure are just missing the mark,” Wexler said, adding he’s also concerned the law could hurt business at bars and restaurants. “What’s been effective has been laws increasing the penalties on those that are repeat offenders and those that have high BAC levels … What we need is increased enforcement of all traffic safety issues, including speeding, texting while driving and aggressive driving.”
It takes about three drinks in one hour for an average 180-pound man to exceed a 0.05% BAC level, or two drinks for an average 120-pound female. BAC levels would then drop by about .015% for every hour thereafter when an individual is not consuming alcohol.
Intoxication levels, however, generally depend on an individual’s age, gender, weight, as well as the strength of the alcohol, the amount of food eaten and their metabolism rate.
Fatal DWI crashes down in Utah
In 2013, the National Transportation Safety Board issued a safety recommendation to all 50 states to establish a BAC of 0.05%, citing the decline in coordination and motor function motorists experience at that impairment level.
While six states introduced bills to lower the BAC level, Utah is the only one to have adopted the measure.
A 2022 National Highway Traffic Safety Administration study found Utah’s fatal crash rate dropped by nearly 20% in 2019, the first year under the new legal limit, despite an increase in the total number of vehicle miles traveled across the state.
Utah Republican state Rep. Norm Thurston, who sponsored the bill, said the impact of the legislation has been measurable, without damaging the state’s hospitality industry.
“It’s not a perfect answer and it will not take you all the way to zero fatalities,” Thurston said. “But I do believe it will reduce the number of people who choose to drive after drinking and that will save lives, all without the loss of any personal freedom. We need people to recognize that you’re free to choose to drink and you’re free to drive. But you’re not free to do both.”
Opposition from the hospitality industry isn't the only hurdle preventing passage of the bill, which has been introduced in Albany in each session dating back to 2013.
A bigger challenge, experts said, is that New York already has a law on the books penalizing drivers with lower BAC levels.
A motorist with a BAC of 0.05% to 0.07% can be hit with a charge of driving while ability impaired if a police officer believes the driver’s ability to operate a motor vehicle has been affected by alcohol to any degree.
But first and second offenses for DWAI are considered traffic offenses, punishable by fines of a few hundred dollars and a maximum jail sentence of 15, and 30 days, respectively — although most cases get pleaded down to no jail time, experts said.
Only on a third DWAI offense within 10 years can a motorist be charged with a misdemeanor, punishable with a maximum sentence of 180 days behind bars.
Saving lives by lowering BAC?
Tom Louizou of the 05 Saves Lives Coalition, which advocates for lowering the BAC threshold, said the current DWAI threshold is not a sufficient deterrent to prevent drivers from getting behind the wheel after drinking.
“New York could save anywhere from 30 to 35 lives a year by going to 0.05,” said Louizou, a retired National Highway Traffic Safety Administration regional administrator. “Of course, everything depends on enforcement.”
Worldwide, more than 100 countries have adopted laws lowering their BAC limit to 0.05%, including England, France, Germany, Greece, South Africa, Thailand, Spain and Switzerland.
“We need people to understand that this will be the global standard,” said State Sen. John Liu (D-Flushing), the bill’s lead Senate sponsor, and who plans to reintroduce the bill next year. “It’s a question of whether we are going to lead or if we’re going to be dragged along with it.”
Gov. Kathy Hochul will review the legislation if it passes in both legislative houses, said Gordon Tepper, a spokesman for the governor.
“This is not meant to be looked at as a punishment,” said Paige Carbone, regional executive director of Mothers Against Drunk Driving, which supports lowering the BAC level. “It's meant to be looked at as a behavior modification for people to think about their relationship with alcohol and getting behind the wheel before they do it.”
Last month, Alisa and John McMorris, Andrew’s parents, accepted his posthumous diploma at Shoreham-Wading River High School as his name was read along with what would have been his graduating class. Alisa McMorris said adopting a lower BAC level will prevent other families from experiencing similar heartbreak.
“The pain is too difficult to put into words,” she said. “I have a hole the shape and size of Andrew in my heart that will never be filled. My family and I build our world around this gaping wound in hopes of saving others the horror of losing a loved one to something that is 100% preventable.”
With Lorena Mongelli
Robert Brodsky is a breaking news reporter who has worked at Newsday since 2011. He is a Queens College and American University alum.
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