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Published: Sunday, 3/28/2004

Drunk-driving arrests rise as Ohio, Michigan enforce stricter laws

BY ROBIN ERB
BLADE STAFF WRITER

It's a Thursday night, Garth Brooks wails from the nearby jukebox, and Brooke Griesemer is sipping a pineapple juice and tequila at a West Toledo bar.

Though a change in Ohio's and Michigan's laws last year made drinking a lot more risky - you can be considered legally drunk now with less alcohol content in your blood - the salon receptionist shrugs.

"I didn't know anything about it," she says, taking another sip. "You'd think there'd be signs or something."

Her friend, Matthew Zunk, on his "fourth, maybe fifth" beer this night, agrees.

"I guess you take your chances," he says. "I'm not real concerned."

He should be.

Arrests of drunken drivers in Ohio and Michigan jumped last year after both states dropped their threshold for drunk driving from the long-held 0.10 percent blood alcohol concentration (BAC) to 0.08 percent, according to review of arrest data by The Blade.

In Ohio, where the law took effect July 1, state troopers last year arrested 905 drivers whose BAC was above the new limit of but below the previous limit.

In Michigan, where the law took effect Sept. 30, state police reported 2,970 arrests in the same category in 2003. Unlike Ohio, however, that total includes drunk driving arrests by local law enforcement.

Officers in both states have for years been able to make arrests for impaired driving even if a driver's blood alcohol level did not reach the legal limit. Plenty of drivers found themselves in handcuffs after being stopped for erratic driving, then failing the field sobriety tests.

"Remember, you may not drink much, so a couple of beers will really affect you," says Toledo police Sgt. Paul Kerschbaum. "Maybe you're not falling down drunk yet, but you can't walk in that straight line. You can't do two things at once, like talk to an officer and find your driver's license."

An officer must consider the "totality of circumstances" in an arrest, says John Bobo, director of the American Prosecutors Research Institute's National Traffic Law Center.

"One of the big things is that the law doesn't say you have to be the 'Otis from Mayberry' drunk," Mr. Bobo says, referring to the town drunk on the Andy Griffith Show. "You just have to be impaired."

In 2002, the year before the lower threshold took effect, Ohio troopers made 742 arrests involving drivers whose BAC fell between 0.08 and 0.10 percent; in Michigan, they made 2,654 arrests that year.

The marked difference in the arrest numbers is the difference between the "formal" limit and the "informal" limit, says John Moulden, president of the National Commission Against Drunk Driving.

He says officers are well aware that a single drunk driving arrest can eat up half of their shift. Unless someone is clearly over the legal limit, the officer is reluctant to pursue drunk driving charges, opting instead for a simple traffic violation - crossing the center lane, for example.

"So when [the BAC] was .10, the informal limit was about .12," he says. "Police knew if they arrested you with a .10 or .11, those cases were pleaded out or dismissed anyway."

Mr. Bobo agrees: "I think .08 gives officers confidence to make that call."

In 2002, 42,815 people died in traffic accidents on the nation's road. Of those deaths, nearly 41 percent, or 17,419, were believed to be alcohol-related, according to the National Highway Traffic Safety Administration.

That's one alcohol-related fatality every 30 minutes.

"People have tried to frame [drunk driving laws] as people against drinking," says Mr. Bobo at the National Traffic Law Center. "It's not. It's about people wanting to save lives. We have these human land mines on our roads, and they're taking out entire families with a left turn."

Three years ago, Congress acted. If states did not pass the 0.08 law, they stood to lose millions in federal highway dollars - more and more as time passed. Ohio would have lost $11.9 million if it had not passed its law by Oct. 1, 2003; Michigan would have lost $11.6 million.

Only Colorado, Delaware, and Minnesota still hold to a 0.10 BAC limit, according to Mothers Against Drunk Driving (MADD).

But while the feds maintained the decision to lower the limit was a choice with incentives, others, like Martin VanValkenburg, director of government affairs of the Michigan License Beverage Association, argue it was blackmail.

Research, he says, did not indicate that drunk driving was getting worse or that more people were dying because of it.

MADD acknowledges that alcohol-related traffic fatalities have declined significantly since 1980, the same year the organization was formed. That year, 28,100 people died because of drunk drivers. The 17,419 deaths NHTSA recorded in 2002 represents a 38 percent drop. MADD maintains every life saved is worth the effort.

Lacking an increase in fatality numbers to support the change from 0.10 to 0.08 percent, Mr. ValValkenburg says the feds used their other leverage: the funds.

"If the federal government had come to us and said, 'Hey, Michigan. You have to do this because your fatalities are going up or whatever,' fine," Mr. VanValkenburg says. "But they didn't."

It's not that beverage association members do not worry about drunk drivers, he says. After all, bars or restaurants can be held legally liable for the damage caused by drunk drivers.

"But we also want to make sure we're protected from the federal government coming in and telling us how to run our businesses," Mr. VanValkenburg says.

For LaVerne Hoffman, there's a more tangible dollars-and-cents argument against 0.08.

Clients at Hoffman's Red Horse Inn in Carleton, Mich., she says, are an older and more responsible crowd. It is friendship and the $13.95 prime rib or $2.99 spaghetti that draws them in, she says.

But with established careers, families, and reputations, it is an older crowd who also is terrified of being pulled over for imbibing beyond the lowered legal threshold, Ms. Hoffman says.

"People are scared to death to have a beer now. Between the economy and .08, we're just hanging on," she says.

Look at it this way: A single beer on tap costs a customer $2.35 and nets the tavern $1.48 profit. If an average customer orders two beers with dinner, that's $2.96 profit from the beer, out of which comes payroll tax and other expenses.

With the new law, "we sell a lot of Diet Coke," Ms. Hoffman says.

That's just 68 cents in profit one time. Refills are free.

Others, such as Mr. Moulden, of the National Commission Against Drunk Driving, simply do not buy that argument.

It takes several drinks to reach a 0.08 level, they point out. That's not to say they condone downing several beers and climbing behind the wheel.

"But people need to understand you don't get to .08 by a couple of drinks with dinner," he says. "It's nonsense. To get to .08 you have to drink more than most people do in a social situation."

Comparing the risk, however, sidesteps the bigger issue, says Doug Scoles, executive director of MADD Ohio.

"Yeah, the guy at .23 is blindly drunk and the guy at .08 is in better condition," he says. "But does that mean the guy at .08 can't kill someone? Absolutely not.

"That's like saying, 'What's worse? A machine gun or a bazooka?' Both can kill you."

The statistics back him up.

Of the impaired drivers killed last year on the nation's highways, 3,367 had a blood alcohol content of 0.09 or less.

At least 144 people killed since 2000 in motor vehicle accidents in 18 northwest Ohio counties had BAC levels higher than 0.08 percent, according to the Lucas County coroner's office. In nine of those deaths, the BAC fell between 0.08 and 0.10 percent.

Of the nine dead, six were drivers; two were passengers, another was a pedestrian.

It's enough that coroner Dr. James Patrick is now setting up what he hopes to be a regional toxicology lab. And he has turned to Dr. Robert Forney to lead it.

Dr. Forney knows intoxication. He has studied it for years - as an associate pathology professor for Medical College of Ohio Hospitals and as the former chairman of the National Safety Council's Committee on Alcohol and Other Drugs.

For him, the science is the easy part of the 0.08 issue. It comes down to "divided attention effects."

Imagine yourself in a dark lab with no distractions. You're instructed to press a button when a single light appears. Chances are, even after a couple of drinks, there might not be a noticeable difference in your reaction time to that single stimulus.

Now take the same lab. This time, there is a video screen, a steering wheel, brake pedal. On the screen, a child runs into the road in front of you. There is a pothole you were not expecting. A siren sounds. Imaginary dashboard lights flicker.

Even at 0.02 BAC, subjects begin to show signs of impairment such as a slowed reaction time.

Now take this scenario one step further: real life.

"When you're driving, you have a myriad of things to look at," Dr. Forney says. "There are things happening behind the vehicle, in front of the vehicle, beside it. There's the cell phone, the cup of coffee, and the radio."

Reaction time is no longer about lab measurements. It's life or death.

"Now," Dr. Forney says, "it's hit the brake or kill someone."

What bothers Dr. Forney is that people seem more concerned about whether one more beer could get them arrested.

"Why are we talking about how close we can get to killing somebody without doing it and getting arrested?" he asked. "Why can't we talk about responsibility?"

It's a discussion Ottawa County Municipal Court Judge Frederick "Fritz" Hany II has had often. His court gets a large percentage of its cases from tourists who travel to Lake Erie's shores and islands and drink too much. Last year, the judge saw 478 drunk drivers compared to 325 the previous year.

The question now, Judge Hany says, is whether the new threshold will simply continue to increase court cases or will it save lives.

"Only time will tell the effectiveness of it."

Contact Robin Erb at: robinerb@theblade.com or 419-724-6133.



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