Far Less Tolerance For Drinking Drivers

THE BALTIMORE SUN

When he went to Capital Centre for hockey games in the 1970s, beer drinkers put on a menacing side show.

"You'd have a lot of fights inside the arena," says Jim Fell, science adviser for drinking-driver programs at the National Highway Traffic Safety Administration in Washington. "And when you were in the parking lot afterward, the guy pulling out in the car next to you might have had 10 beers. No one seemed to care."

Over the past 10 years, a far less tolerant society has emerged with the help of Mr. Fell, Mothers Against Drunk Driving and a widening circle of Americans outraged by drinking drivers.

The best current evidence of the change in Maryland is the "illegal per se" law passed during the recently concluded General Assembly session. As of Oct. 1, anyone driving with a blood alcohol content of .10 or higher will be guilty per se of driving drunk: In this case, per se means the test results alone establish guilt.

A coalition of organizations and private citizens succeeded in pulling the Assembly another step away from its flat-Earth approach to a problem that leaves 17,000 or so Americans dead and many more seriously injured each year.

While it seems obvious that drinking and driving is suicidal or murderous, every inch of progress toward curbing it has required years of struggle.

Government agencies such as Mr. Fell's tried for years to use statistics to generate public pressure and legislative or judicial reforms. Nothing worked before the founding of MADD, a movement of impassioned and tenacious survivors. MADD's message is being heard throughout U.S. society -- including at USAir Arena (formerly Capital Centre) in Landover, Prince George's County.

Under the direction of Jerry Sachs, president of USAir Arena, beer sales end after the second period of hockey games. The price of beer was raised. No more than two containers can be purchased by any single customer at any time. And the management periodically announces free rides home for fans who feel they've had too many.

Mr. Sachs did not stop there. He joined with MADD and others to lobby the Assembly for passage of per se. The change will be in place at the beginning of next year's hockey season. If a fan leaves the parking lot drunk and later "blows" .10 on the machine that measures blood alcohol content, he will have much more difficulty avoiding some sort of penalty. Juries are much more likely to convict with "bright line" proof that the accused was impaired.

Currently, police officers must back the Breathalyzer finding with subjective observations about the defendant's appearance. Probable cause must still be shown with a per se law and the accuracy of the testing device may be challenged, but a lawyer's ability to create "reasonable doubt" will be sharply limited.

In Annapolis this year, advocates observed once again that per se has been upheld by the courts and that .10 is not overly restrictive. Mr. Fell and National Highway Traffic Safety Administration are urging Maryland and other states to adopt a standard of .08 -- and many have.

Scientists say noticeable impairment of driving ability begins at .05 -- half the current standard. At .10, tests show, a driver is 12 times more likely to have an accident than when he is sober. We are not talking wine with dinner: It takes five drinks in an hour for a 160-pound man to reach the .10 level; less for a 120-pound woman.

Many states have had the per se statute for years. Minnesota passed its law in 1971. Its legislature has revisited drunken driving each year since then, tightening and refining its system of sanctions. Alcohol-related fatalities in Minnesota peaked in 1968 at more than 1,000. The toll is still 500 or so a year, but the per capita death rate has often been the nation's lowest. Had the toll continued unabated, another 13,000 Minnesotans would

have died.

Maryland legislators turned away from lives-saved data for years, arguing per se amounted to "trial by Breathalyzer."

So discouraged were advocates of the law after so many years of futility that MADD in Maryland did not make per se a legislative priority this year. It was initially advanced this time by Advocates for Highway and Auto Safety. Passage owes much to the constantly widening sphere of anti-drunken-driving forces, a growth symbolized by the addition of a businessman like Jerry Sachs.

The circle of petitioners also included:

* Del. Donald E. Murphy, a freshman Republican from Catonsville, was converted after drinking four beers in an hour, having himself driven to the lockup and recording .06 on the Breathalyzer.

He'd opposed per se in committee, worrying about the accuracy of the testing device. But he decided to do his own test. If he was still "legal" the way he felt at .06, he said, the .10 standard seemed all too reasonable.

* Students and teachers from Walt Whitman High School in Montgomery County. Two Whitman students were killed last year in a crash that split their BMW in half and pulled the community together in support of tighter sanctions.

* A House Judiciary Committee significantly reconstituted after the 1994 election in which many incumbents were defeated. The committee had fewer lawyers -- and at least one of those who remained dropped his opposition.

* In absentia, a young Baltimore County police officer who was killed shortly after graduating from the police academy. The story of his death was used to make a point: If a police officer, trained in the effects of alcohol, thought he was competent to drive after an evening of drinking, all the more reason to redouble the message for others. A drinker might not look drunk, act drunk or feel too drunk to drive, but the science shows that impairment of reflex and eyesight begins at relatively low levels of consumption.

* Sen. Ida G. Ruben and fellow Montgomery County Democrat Del. Gilbert G. Genn, the bill's sponsors.

"I'd like to think it was something I did, but I think it passed because the media helped make the issue public," Ms. Ruben said.

Ms. Ruben defended her bill successfully against the best that the Senate Judicial Proceedings chairman, Walter M. Baker, could send her way. A lawyer and skilled legislative debater, Mr. Baker attempted to amend it with what was called a "poison pill," an onerous records-checking procedure that would have preserved the sort of game playing that per se is designed to eliminate. There was some doubt at one point that Mr. Baker would permit a vote on the bill.

Ms. Ruben says she is convinced that Mr. Baker was not trying to make life easier for himself or his lawyer colleagues. He opposed it because the per se approach is truly repugnant to his sense of due process, she says.

Her own view: "If they're drunk, they ought to pay the price before they kill somebody."

Mr. Genn says the House Judiciary Committee's resolute opposition to the bill faded finally with the realization that "everyone is a potential victim or perpetrator." Anyone, he said, could be killed or kill if not sufficiently alert to the effect of alcohol. That was not new, of course, but this year it had the needed impact.

Having passed the per se law, Maryland might now qualify for more than $1 million in federal traffic safety funds. But that was not the objective. About 200 people were killed in Maryland last year in crashes involving alcohol.

Mr. Fell says the National Highway Traffic Safety Administration's studies show per se saves lives.

"We studied California, which accounts for 10 percent of the nation's fatalities," he says. "They lowered their [blood alcohol content] to .08 in 1990 and added administrative license revocation, and they saw a 12 percent decrease in alcohol-related deaths that year."

A 12 percent decrease in Maryland's death rate would have meant 24 lives saved last year.

The law might have an impact on attitudes among even the most inveterate drinkers and repeat offenders, the study showed.

The California study showed that "there was a significant decrease in the proportion of drivers who tested at .20 or greater" -- more than twice the legal limit].

Mr. Fell is hoping, no doubt, that the highways will someday resemble the new atmosphere at USAir Arena.

"The difference there is like night and day," he says.

C. Fraser Smith is a reporter for The Baltimore Sun.

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