Austin police chief suggests a new category for impaired driving
By PEGGY FIKAC
Nov. 30, 2010, 5:39AM
AUSTIN — Under a recent proposal floated for a new drinking-and-driving
offense, those who enjoy a glass or two of wine while out at dinner might
find themselves on the wrong side of the law if they decided to drive
home — even if their blood alcohol is below the 0.08 percent legal
The potential effect on moderate imbibers appears to be one big reason
the "driving-while-ability-impaired" idea isn't gaining
steam, despite an initial flurry of attention.
"It created a lot of dialogue, but I don't think will ever be
workable," said state Senate Criminal Justice Committee Chairman
John Whitmire, D-Houston, of the idea submitted to his group by Austin
Police Chief Art Acevedo.
The idea wouldn't lower the legal intoxication limit. Instead, it
would create an offense for those whose blood alcohol concentration is
between 0.05 and 0.07 — below the 0.08 concentration at which people
are presumed to be intoxicated.
"If you're going to write up people for that and test 'em
on the side of the road for that, you'd probably have to shut down
all your bars and restaurants and your sports events. ... Essentially,
wine with dinner would have to go out the window," said Whitmire.
While emphasizing that he takes seriously the offense of drunken driving,
Whitmire said, "I think society has already decided years ago, they
don't want prohibition."
Whitmire is focused on other related issues, including ensuring repeat
drunken-driving offenders acknowledge and receive treatment for alcohol
problems, and pushing for a uniform system of dealing with drunken drivers
across local jurisdictions.
Acevedo wasn't available for an interview on the driving-while-impaired
idea, which he submitted in testimony to Whitmire's committee as part
of a broader list of potential proposals.
Acevedo didn't propose a penalty. A first offense of driving while
intoxicated is a Class B misdemeanor.
Whitmire said Acevedo told him the idea was largely "to give people
an opportunity to plead down to something."
'Makes more sense'
First-time offenders may often agree to a lesser offense in a plea bargain,
and the talking points submitted by Acevedo said, "This makes much
more sense than reducing a charge to reckless driving or obstructing the
But the American Beverage Institute, a restaurant trade association, jumped
on the so-called "DWI Lite" proposal with both feet.
The group said the idea mistakenly places the focus on moderate social
drinkers instead of "hard-core drunk drivers who cause the majority
of alcohol-related fatalities."
"The attempt here is about trying to criminalize what has been considered
perfectly legal behavior. ... The idea is to discourage people from having
anything to drink prior to driving," said Sarah Longwell, managing
director of the institute.
She said a 120-pound woman can reach the 0.08 level by drinking two six-ounce
glasses of wine in two hours.
The idea of creating an offense at a lower level could cost jobs by having
"a chilling effect on moderate and responsible consumption"
of alcohol and thus hurting the hospitality industry, she said
Laws already in place
Longwell and others noted that Texas law already allows for someone to
be considered intoxicated apart from the 0.08 blood alcohol concentration,
defining it as "not having the normal use of mental or physical faculties
by reason of the introduction of alcohol" or drugs.
The institute said every state allows for people to be arrested for impaired
driving, even with a blood alcohol concentration below 0.08. Colorado
and New York have laws in place like the driving-while-ability-impaired
idea floated here, it said.
James McLaughlin, general counsel and executive director of the Texas
Police Chiefs Association, said his group has no objection to the DWAI idea.
"The idea is to get these people off the road," he said. "Whatever
mechanism that can be done legally is what we want to do. They're
The idea isn't part of the legislative agenda for Mothers Against
Drunk Driving, said Bill Lewis, the group's public policy liaison.
He said MADD prefers to focus on priorities that include sobriety checkpoints
and ignition interlock devices for all convicted drunken drivers.
"We do not support that (new DWAI offense). It's too strong to
say we oppose it," Lewis said. "I'm just not sure it's