Abolish Drunk Driving Laws If lawmakers are serious about saving lives, they should focus on impairment, not alcohol.

Last week Austin Police Chief Art Acevedo advocated creating a new criminal offense: "driving while ability impaired." The problem with the current Texas law prohibiting "driving while intoxicated" (DWI), Acevedo explained, is that it doesn't allow him to arrest a driver whose blood-alcohol content (BAC) is below 0.08 percent without additional evidence of impairment.

Once the 0.08 standard took effect nationwide in 2000, a curious thing happened: Alcohol-related traffic fatalities increased, following a 20-year decline. Critics of the 0.08 standard predicted this would happen. The problem is that most people with a BAC between 0.08 and 0.10 don't drive erratically enough to be noticed by police officers in patrol cars. So police began setting up roadblocks to catch them. But every cop manning a roadblock aimed at catching motorists violating the new law is a cop not on the highways looking for more seriously impaired motorists.

The roadblocks are also constitutionally problematic. In the 1990 decision Michigan v. Sitz ,the Supreme Court acknowledged that stops at sobriety checkpoints constitute "seizures" under the Fourth Amendment but ruled that the public safety threat posed by drunk driving made them "reasonable." In the years since, the checkpoints have become little more than revenue generators for local governments.

When local newspapers inquire about specific roadblocks after the fact, they inevitably find lots of citations for seat belt offenses, broken headlights, driving with an expired license, and other minor infractions. But the checkpoints rarely catch seriously impaired drivers. In 2009, according to a recent study by researchers at the University of California at Berkeley, 1,600 sobriety checkpoints in California generated $40 million in fines, $30 million in overtime pay for cops, 24,000 vehicle confiscations, and just 3,200 arrests for drunk driving. A typical checkpoint would consist of 20 or more cops, yield a dozen or more vehicle confiscations, but around three drunk driving arrests.

These ever-expanding enforcement powers miss the point: The threat posed by drunk driving comes not from drinking per se but from the impairment drinking can cause. That fact has been lost in the rush to demonize people who have even a single drink before getting behind the wheel (exemplified by the shift in the government's message from "Don't Drive Drunk" to "Don't Drink and Drive"). Several studies have found that talking on a cell phone, even with a hands-free device, causes more driver impairment than a 0.08 BAC. A 2001 American Automobile Association study found several other in-car distractions that also caused more impairment, including eating, adjusting a radio or CD player, and having kids in the backseat (for more on such studies, see the 2005 paper I wrote on alcohol policy for the Cato Institute).

Doing away with the specific charge of drunk driving sounds radical at first blush, but it would put the focus back on impairment, where it belongs. It might repair some of the civil-liberties damage done by the invasive powers the government says it needs to catch and convict drunk drivers.

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