New DUI Bill is “Undercooked,” Utah Restaurants and Lawmakers Say (with AUDIO)

Utah’s newly enrolled law setting blood alcohol liability limit at 0.05 could become the first in the nation.

When the National Transportation Safety Board (NTSB) wanted to try again to pass a lowered blood alcohol content (BAC) bill somewhere in the United States, they found fertile ground this year during Utah’s 45-day legislative session which adjourned on March 9.

Utah and the NTSB share a goal of “Zero Fatalities,” on highways within the state, so it only seemed natural that Bella Dinh-Zarr, the NTSB’s acting chairperson, came to Utah to advocate for a new law the NTSB feels would significantly aid in that goal of getting to “zero fatalities” on the nation’s highways. To many, that goal is impossibly impractical, given risks inherent in automobile use. The response, officials believe, is to single out alcohol use and driving by reducing the legal BAC limit from the current 0.08 to 0.05 – something critics of such legalisation chide by responding that this logic means that BAC should actually be 0.00. Others termed the idea of reducing BAC from 0.08 to 0.05 as a grand social experiment in search of a problem that simply doesn’t exist.

Critics also believe that in Utah,  the dominant culture exerted its influence where almost 90 percent of the lawmakers are Mormons, those who preach abstinence from alcohol use. Utah’s legislators agreed with a measure drastically influencing responsible consumers and the bottom line of independent restaurants. Some Utahns said the rush to get the bill completed and sent to the Governor made it flawed with too many unintended consequences and even some of the legislators agreed.

Once the dust settled, Utah had passed HB 155 “Driving Under the Influence and Public Safety Revisions sponsored by Norm Thurston (Republican – Provo) – a Utah County Republican and an assistant professor of Economics at the Mormon church-owned Brigham Young University. The bill lowers the legal BAC liability to 0.05 effective December 30, 2018.

Due Diligence Incomplete

During the last week of Utah’s 62nd legislature, where over 1,200 bills had been filed, 740 had been introduced, and 525 passed (a record number), there was considerable post-legislative discussion surrounding HB 155 mostly involving whether  Utah Governor Gary Herbert (Republican) should sign or veto the legislation. Herbert, for his part, signaled that the debate over setting the BAC limit to 0.05 should continue through summer while simultaneously endorsing the measure.

Herbert would ultimately sign Thurston’s bill on March 23rd, stating that he is not interested in letting the debate on one bill go to the next legislative session in January of 2018 – instead making a decision to convene a special session of the legislature before September. That would allow for additional voting on amendments introduced by the legislative body, finalized by summer.

Addressing reporters, Governor Gary Herbert denied his endorsement of HB155 was an issue of imposed morality and emphasized his own desire to be sure the matter was grounded in public safety concerns. “The role of government is to make sure we have safety,” Herbert said, “in our neighborhoods, on our streets; in the things we do in life… in my state of the State address, we emphasized public safety and public health.”

Why the Debate Will Continue

Concerned representatives of stakeholders, including the Salt Lake Area Restaurant Association and the Utah Hospitality Association, were accused by conservative lawmakers as pursuing profit more than public safety, giving credence to claims that the entire debate had been built on a moral platform by mostly non-drinkers. Stakeholder testimony  in committee was met with ridicule by legislators, fueling claims by one food and beverage analyst that “witness bashing” had become the order of the day. Given that the state sells all of the liquor and allows for the sale of “heavy beer,” in its own sales outlets, it is significant to note that record alcohol sales have continued in Utah as the state’s population increases and its demographics change. In 2016, sales went to $406 million before the state collected sales taxes on alcohol products in addition to any profit from the state outlets which was recently increased by 2%. 

There were actually two major bills involving alcohol during the most recent session; the other bill, HB 442 – Alcohol Amendments sponsored by Representative Brad Wilson (Republican – Layton, Davis County), dealt with the presentation of sales in commercial dining establishments and entertainment venues. By the time Thurston’s bill had gone to the Senate for an accelerated up or down vote “under suspension of the rules,” Senator Jake Anderegg (Republican – Lehi) said there was no time for adequate deliberation. Anderegg ultimately voted in opposition to the bill and has explained the lack of sufficient information publicly as his reason for doing so. In announcing the plan for more deliberation and the potential for amendments to both laws, Herbert said that there was an opportunity for the laws to be “better for the responsible drinker to access alcohol, and to get a drink at restaurants and in bars as appropriate.”

House Speaker Greg Hughes (Republican – Draper) was said to have serious concerns with the enrolled legislation, and calls to the Governor’s office have registered nearly 10:1 in opposition prior to Thursday’s signature by the governor. Hence, charges are being made about “legislating in advance of process,” and a bill that independent restauranteurs termed “undercooked.”

Hughes has expressed his concern that Utah would be the first state in the nation to reduce the limit which omits opportunities to confer with lawmakers elsewhere. There are implications involving insurance providers as well. 

What to expect next from Utah’s new DUI limit

During his press conference on the matter, Governor Herbert mentioned the existing Colorado DUI laws twice. There, initial penalties are less severe than the way that offenders are processed in Utah’s judicial system, one that is also dominated by members of the Mormon faith. In Colorado, a first-time offender arrested with a BAC between 0.05 and 0.08 (the higher limit previously adopted by Utah as another first-in-the-nation in 1983) a lesser charge of Driving While Ability Impaired, may be imposed. A DWAI charge is a misdemeanor criminal charge, subject to lesser fines and incarceration, but includes “points” on a driver’s safety record.

Given the cost of incarceration to the nation’s municipalities, most often sanctions involving public service are handed-down for first offenders and the overall impact to a citizen convicted of the DWAI offense is less – at least until it becomes a pattern, triggering a felony charge for repeat offenders or those at the upper limits of BAC.

Unintended Consequences

Utah Crash Summary 2015 – Utah Department of Public Safety Highway Safety Office

“Our organization is not anti-safety,” said Michele Corigliani, a spokesperson for the Salt Lake City Restaurant Association, “and we are not attempting to place profit ahead of responsible behavior. Our independent businesses will definitely be negatively affected if this limit is reduced without respect to facts indicating there’s no problem actually being addressed.”

Corigliani refers to the most recent statistics assembled by Utah’s Department of Public Safety where, in 2016, less than half of the drivers involved in fatal car crashes tested positive for any amount of alcohol or drugs. This is significant because when HB 155 was presented in the Senate, the Senate sponsor, Majority Whip Stuart Adams (Republican – Layton), painted the bill as a remedy for the carnage on Utah’s highways.

Most of the Utah driving fatalities in the 2016 numbers involved no measurable alcohol at all and with a wider view, between 2008 and 2015, the total percentage of alcohol-related crashes in the state was under 4 percent – a decreasing trend.

The real hazard to public safety, the new law’s critics say, is speeding and distracted drivers, not imbibers. Post-session discussion has since included the idea that at a BAC of 0.05, visibly demonstrated impairment is difficult for law enforcement officers to detect at all. When the state’s statistics indicate that most who are stopped for probable cause of DUI are at a median BAC of 1.14, critics of the 0.05 limit say this gives too much discretion to law enforcement and too much liability to drivers who metabolize alcohol differently in each case.

“But It’s a Standard in Europe”

Acknowledging the calls his office has received on the issue Herbert said that 85 percent of the world’s population is subject to the 0.05 standard and that he and his staff spend considerable time analyzing the data behind the laws he considers. Herbert also mentioned the efforts by the NTSB to bring the standard to the “of the rest of the world,” and mentioned he’d reviewed data from the Centers for Disease Control and other research institutions on the subject. 

“I have visited at length with representatives on all sides of this issue, including the state’s hospitality industry and I’ve talked with those on the front lines, our law enforcement people… our [Utah] Highway Patrol officials who certainly have a role to play.” Herbert said while adding that he felt it was good policy for Utah and by implication, the nation as well. “I intend to sign HB155 with some caveats,” he said on Thursday.

“I don’t believe that the legislation is finished. There are some areas of improvement I think are warranted and necessary… on how this new standard is applied. We have over a year-and-a half to do that analysis before implementation date and we can look at impaired driving, distracted driving and repeat offenders.” With the announced special session, he wants all alcohol laws reviewed with an eye to so-called unintentional consequences. “We have to get this right,” said Herbert, “and leadership has agreed to this.”

Reservations from legislative leadership have spawned back-channel discussions including a delayed implementation until other states could come on board. Hospitality industry stakeholders lament that the reduced BAC limit has already become part of the national discussion with Utah being perceived as “weird” and “backward” on alcohol policy. They say that even tourism could experience a pause in its emerging dominance as an economic development strength.

Distraction as Impairment

When Senator Anderegg was a representative in Utah’s House, he introduced a bill addressing “distracted driving,” which was meant to address mobile phone use and texting. Virtually all who rose in the House to address Anderegg’s additional restrictions on cellphone use admitted that they had violated the state’s existing law on their way to legislative meetings at the capitol on that day. 

Anderegg’s House bill on distracted driving was also referred to “interim study,” after the normally authorized session is adjourned. Distracted driving was also something Governor Herbert suggested that lawmakers revisit.

In a Town Hall style meeting in his Northern Utah district, Senator Lyle Hillyard (Republican – Logan) stated his preference that all drivers on the road with him be at a BAC of 0.00. This prompted some opponents of Thurston’s law to wonder if the Senator had ever used his cellphone while he was driving. 

“It’s ironic,” Corigliani said, “that the Utah legislature got rid of automobile safety inspections during this session. No one needs to check or test my brakes or lights before I get on the road? But there’s a safety problem at 0.05 BAC? Really?”

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AUDIO on Governor Herbert’s statements about a special session on HB155 HERE::

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