1.3 High-BAC Sanctions

Almost all States increase the penalties for the standard impaired-driving (DWI) offense for repeat offenders. Some States also have increased the penalties for drivers with high BACs, typically .15 to .20 g/dL. In 2018 67% of alcohol-impaired-driving fatalities were in crashes that involved at least one driver with a BAC of .15 g/dL or higher (NCSA, 2019).

High-BAC sanctions are based on the observation that many high-BAC drivers are habitual impaired-driving offenders, even though they may not have records of previous arrests and convictions. Moreover, drivers with high BACs put themselves and other road users at risk; more than half (55%) of drivers with BACs of .01 g/dL or higher involved in fatal crashes in 2018 had BACs of .15 g/dL or greater (NCSA, 2019). Enhanced sanctions for high-BAC drivers vary by State, and may include mandatory assessment and treatment for alcohol abuse problems, close monitoring or home confinement, installation of ignition interlocks, and vehicle or license plate sanctions (see the Alcohol- and Drug-Impaired Driving chapter, Sections 4.1, 4.2, 4.3 and 4.4). NHTSA recommends sanctions for first-time offenders with high BACs be comparable to those for repeat offenders (NHTSA, 2008c).

Use: As of July 2019 there were 47 States and the District of Columbia that had increased penalties for drivers with high BACs (GHSA, 2019). While there is no uniform definition of “high BAC,” these States define drivers with BACs of .10 to .20 g/dL or even greater to be high-BAC offenders.

Effectiveness: In the only evaluation of high-BAC sanctions to date, McCartt and Northrup (2003, 2004) found that Minnesota’s law appears to have increased the severity of case dispositions for high-BAC offenders, although the severity apparently declined somewhat over time. They also found some evidence of an initial decrease in recidivism among high-BAC first offenders, which again dissipated with time. The BAC test refusal rate declined for first offenders and was unchanged for repeat offenders after the high-BAC law was implemented. The authors pointed out that, at the time, Minnesota’s law had a high threshold of .20 g/dL BAC, relatively strong administrative and criminal sanctions, and strong penalties for BAC test refusal. Since the study was conducted, Minnesota changed its threshold for high BAC to .16 g/dL, twice the illegal limit.

Costs: High-BAC sanctions will produce increased costs if the high-BAC penalties are more costly per offender than the lower-BAC penalties. Over a longer period, if high-BAC sanctions reduce recidivism and deter alcohol-impaired driving, then costs will decrease.

Time to implement: High-BAC sanctions can be implemented as soon as appropriate legislation is enacted.

Other issues:

• Test refusal: High-BAC sanctions may encourage some drivers to refuse the BAC test unless the penalties for test refusal are at least as severe as the high-BAC penalties. Alcohol- and Drug-Impaired Driving chapter, Section 1.4.
• Child endangerment laws: Similar to high-BAC laws, child endangerment laws recognize there are certain instances where impaired drivers pose extreme risk to others. In 2018 there were 231 children 14 or younger (22% of all child fatalities) who were killed in alcohol-impaired-driving crashes (NCSA, 2019). Of those, 128 were occupants of vehicles with drivers who had BACs of .08 g/dL or higher. Child endangerment laws create a separate offense or enhance DWI penalties for impaired drivers who carry children. Presently, 46 States and the District of Columbia have separate or higher penalties for impaired drivers who have children in their vehicles (MADD, 2018).

---