First State Delaware Last on .08 Blood-Alcohol Drunken Driving Law

By Kathleen Murphy | July 5, 2004

Lighting up a cigarette in a bar in Georgetown, Delaware is unlawful, but you can get more drunk in Delaware than anywhere in the nation and still be allowed to get behind the wheel.

“Delaware’s got so many laws that make you think, ‘Why, why, why?’ No smoking, no sales tax,” said Shannon Sehein, bartender at J.W. Pickles Saloon who favors lowering the blood alcohol limit that defines drunken driving to .08 percent from .10 percent.

“People are going to drink, and there are so many drunk drivers out there, so many people dying, so many people underage, drinking. If anything helps, why not?”

Delaware, 1,982 square miles on the Eastern seaboard, was first to ratify the U.S. Constitution but is last in the nation to cling to a more lenient blood-alcohol threshold for determining intoxication. Last month, governors in the other holdout states of Colorado and Minnesota signed into law the stricter “point-oh-eight” standard, as it is commonly called, to crack down on drunken driving. West Virginia and New Jersey adopted .08 in January.

By not adopting the tougher standard, Delaware is jeopardizing about $3.3 million in federal highway construction funds. Congress ordered states to pass a .08 law by Oct. 1, 2003, or face the penalty of having 2 percent of their federal highway funds withheld each year until 2006. Passing the law before Oct. 1, 2007, allows the return of withheld funds to out-of-compliance states.

In Delaware, whose state motto is “Liberty and Independence,” tougher drunken driving rules have hit a roadblock over the issue of state’s rights.

“The argument’s gotten less about what is the right thing to do and more about federal government intervention,” said state Rep. Bill Oberle, R-Beecher’s Lot, sponsor of this year’s bill to comply with the federal blood-alcohol limit. The Delaware Legislature has tried and failed three times in the past seven years to enact a .08 law.

The first states to lower their blood alcohol limits to .08 were Oregon and Utah in 1983. A total of 33 states had .08 thresholds before the federal government’s 1996 mandate. Idaho and Illinois were first to comply with the federal law.

Members of the Illinois General Assembly were convinced to pass a .08 drunken driving bill in 1997 after they drank alcohol, then tested their driving skills under the supervision of the State Police. A subsequent study of Illinois’ .08 law linked it to a 13.7 percent decline in the number of drinking drivers involved in fatal crashes.

An average 170-pound man who has four drinks in one hour on an empty stomach will reach a .08 percent blood alcohol concentration level, and a 137-pound woman would reach .08 percent after three drinks on an empty stomach, according to the National Highway Traffic Safety Administration. To reach .10 blood-alcohol concentration, each could have one more drink in the same time period.

Some states have adopted even lower blood-alcohol levels for convicted drunken drivers, according to Mothers Against Drunk Driving:

• Maine has zero tolerance (.00) for repeat offenders.
• North Carolina’s level is .04 for a second offense, and zero for a third.
• Wisconsin sets a .02 limit for third and subsequent offenses.
• Utah has a .05 level for repeat drunken driving offenses that endanger a child.

In Delaware, 14 of this year’s 50 traffic deaths were alcohol-related, according to the Delaware State Police. Last year drunken drivers killed 33 people on Delaware roads. The average alcohol-related fatality in Delaware costs the public $3.7 million in monetary and quality-of-life costs, according to federal records.

Those opposed to toughening Delaware’s law argue that the federal government is too intrusive by tying transportation dollars to state passage of a drunken driving bill. The federal “hammer,” or threat of punishment, also has been used by Congress to force states to adopt policies on air pollution, seat belts, speed limits, the drinking age, and teens’ access to cigarettes.

Delaware Gov. Ruth Ann Minner (D) listed .08 legislation as a priority in her State of the State address this year. H.B. 111, which passed the Delaware House April 17, is stalled in a Senate Judiciary committee. Senate Judiciary Committee Chairman James Vaughn, D-Clayton, hasn’t indicated whether he will move the bill forward.

Oberle, the House sponsor, rates chances of passage at “50-50.” “I would hate to see Delaware earn that reputation as the last in the nation to take a step forward against those that drink and drive,” he said.

Delaware Senate President Pro Tempore Thurman Adams Jr., D-Bridgeville, who sits on the Judiciary Committee, said he has no problem with .08 but opposes attempts to lower the blood alcohol limit to .04 or .05. MADD advocates lower limits for repeat offenders and for drivers who register low blood-alcohol but are high on drugs. But Adams said too many convicted drivers would lose their licenses, be unable to work, and “then they’re on unemployment or welfare. We’ve got to think about those people, too.”

Dolly Banks, a victim advocate for MADD’s Delaware chapter whose 23-year-old son was killed by a drunken driver in 1997, said, “Until they’re ready to let it out of committee, there’s not a whole lot that can be done. I’m a victim, and I lost someone and I know what it feels like. If we pass this law, it will make a difference.”

So far the Delaware Restaurant Association and the Delaware Package Store Association have not taken official positions on this year’s legislation.

In Minnesota, despite lobbying from liquor interests, the potential loss of highway funds tipped the balance this year.

Colin Minehart, past president of Minnesota Licensed Beverage Association, a group of restaurant, bar and liquor-store owners, said the .08 standard “doesn’t do anything except attack the social drinker and burden our court systems. When the federal government is holding a gun to your head, saying you’re going to lose $100 million in highway funds, it’s pretty easy to figure out what’s going to happen.”

Minnesota Sen. Steve Murphy, DFL-Red Wing, says he’s a recovering alcoholic and doesn’t believe anyone should drink and then get on the road. But he said he opposed Minnesota’s new .08 law because “I don’t believe the U.S. Constitution gives the federal government the right to tell us, and basically hold us hostage with highway dollars, because we want to set our blood-alcohol limit.”

Murphy is a staff writer for

Topics Personal Auto Illinois Minnesota

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