Almost since the uniform adoption of the automobile in the early 20th Century, drunk driving has been a vexing problem. After World War II, as the population began to move to the suburbs and the two-car garage become standard, instances of drunk driving increased. A couple decades later, Mothers Against Drunk Driving become one of the strongest, most influential, and most successful political action committees in all the land. Most recently, MADD has begun to champion Breath Alcohol Interlock Devices, or BAIIDs, as the panacea needed to end drunk driving.
History of HR 3011 Proposing to End DUI by 2024
There have been multiple attempts by both parties in the federal government to pass legislation that would require the mandatory use of BAIIDs. The most recent incarnation of these efforts manifests in a bill that would require BAIIDs in motor vehicles by 2024. Prefaced with the desire to “[T]o improve the safety of individuals by taking measures to end drunk driving”, H.R. 3011 is sponsored by Rep. Kathleen Rice, a Democrat from NY and supported by Senators Tom Udall (D-New Mexico) and Rick Scott (R-Florida) and Representative Debbie Dingell (D-Michigan). The Bill, originally submitted in 2019, seeks to force automotive manufacturers to install systems that would prevent a vehicle from being started if the driver was above a .08. These bills represent the latest attempts to force untested and unreliable equipment into our motor vehicles, with little regard for the severe consequences that could potentially follow.
Use of Alcohol Interlocks in Michigan Help Demonstrate the Problem
Michigan DUI law requires the use of BAIID in many different situations, including for multiple DUI offenders and high BAC or super drunk cases. Installation of a BAIID is also required for license restoration such as where the driver has lost their full driving privileges or been found guilty of certain driving crimes. Our experience with BAIIDs has shown that almost every single individual who uses the device will experience malfunction or false report of alcohol consumption.
While it is true that drunk driving leads to many unnecessary accidents and deaths every year, this should not lead people to believe in the BAIID promise. Nor should people blindly trust the government to know what is in our best interests. Every action has a consequence and the Michigan DUI lawyers at the Barone Defense Firm know that these devices represent no panacea to the societal problems posed by drunk drivers. Our experience defending BAIID violations suggests that there are significant limitations in this technology.
The Nature of Alcohol Creates a Legal Morass for both Drivers and Auto Manufacturers
While HR 3011 does not specify what specific manufacturer of BAIIDs is to be utilized, or if car manufacturers are to develop their own, problems with the BAIIDs currently in use does give us insight to the potential problems that will inevitably exist. First off, the idea that the vehicle would not be operable above a .08 leads to many difficult issues. A person’s blood alcohol content is constantly changing. When a person consumes alcohol, it may take more than an hour for that alcohol to reach the bloodstream. That means that if somebody consumes alcohol and starts the car, they may be below the .08 blood alcohol level. However, as their blood alcohol level rises by the absorption of the alcohol in their stomach and intestines, their BAC could rise above a .08. The question would then be if the vehicle would automatically shut itself off while the person was driving or would the vehicle allow them to continue to drive. What happens next? Would the vehicle use OnStar to automatically call the police?
Are Auto Manufacturers Liable for Wrongful Death and Job Loss?
Of key importance to the passage of the bill is the question of liability. There would be major questions about liability for the auto manufacturer if somebody were able to start their car and believed that they were safe to drive, but a subsequent unlawful BAC prevented them from driving safely. If an accident occurs, is the BAIID manufacturer liable? What happens if the BAIID incorrectly measures alcohol, and a DUI death occurs? In such a case a subsequent blood alcohol level could show an unlawful BAC and therefore driving that theoretically could have been prevented by an accurate BAIID. What happens when the BAIID says .06 but an blood test an hour later says .16?
What Happens in Cases of Emergency and Car Won’t Start?
There would be further questions about if a car did not correctly start during a medical emergency or caused someone to lose their job. Could someone sue the auto manufacturers for lost revenue? How about a drunk driving charge if they blew under when the vehicle started? The current ignition interlock systems will not even allow the vehicle to start if the BAC is above a .025. Would the future interlock have to have a lower BAC than .08 for liability purposes? And where should that level be set? Some individuals might be highly impaired at a .05 whereas others not so much at levels as high as .15.
What Happens if There is a False Positive for Alcohol When no Alcohol Has Been Consumed?
One of the things the Michigan DUI lawyers at the Barone Defense Firm know from the current ignition interlock technology is that false positives, where alcohol is mistakenly reported, are quite frequent. While the device is supposed to detect only alcohol, it often detects alcohol from sources other than drinking and from other environmental sources. Specifically, it is suggested that someone does not place anything in their mouth for 15 minutes prior to blowing into the device. This can include food, beverage, gum, mints, smoking, chewing tobacco, medicines, teeth brushing, mouthwash, etc. The proposed devices do not require a blow at all which means that these products pose a risk by simply being present in the vehicle.
Further, environmental chemicals are also notorious for false positives. There are instances of the ethanol vapors from windshield wiper use causing a false positive. Products such as perfumes, air fresheners, vaping, and hand sanitizer all could create enough alcohol in the air to prevent someone from starting the vehicle. The thought that you could not start your vehicle until the hand sanitizer evaporated off your hands and out of your car should give people a moment for pause. It has been shown that working with certain chemicals also can lead to false positives. That means that people in certain employment such as manufacturing or painting, may have a difficult time starting the car to drive home.
BAIIDs Do Not Reliably Predict a Driver’s Actual Alcohol Level
The most important thing to understand is that the technology at present, is not sufficient to provide accurate BAC testing in motor vehicles. In the state of Michigan, it is difficult to get evenly devices used for evidentiary purposes to be tested and maintained properly. The Michigan State Police just had to launch an investigation into their own breath testing devices due to fraudulent testing and calibration. Who is going to ensure the calibration of the new devices when they are in every car on the road? Is it something that is going to have to be checked every four months like breath testing evidentiary devices and current ignition interlock systems? Who is going to pay for that certification?
Legislative Attempts to Require Ignition Interlock Systems in all Vehicles is the Big Brother of Which we Should be Afraid.
While it is unclear as to how much traction these bills will gain, what is clear, is that much more research into this area is necessary before any legislation is established. It would be wise to ensure the technology will be reliable, safe, and affordable before any mandates to the auto manufacturers are made. We must also have a network in place to test and calibrate these devices on a regular basis in every city and town across America. Most importantly, we must be able to answer the question of who is responsible when the machines inevitably fail. If it is the auto manufacturers, then we must be prepared to pay that added cost whenever we purchase our next vehicle. We will already have to pay thousands of extra just for the added “safety” of these undeveloped devices in the first place.