The infrastructure spending bill now pending before the United States Senate contains a provision requiring that all manufacturers selling cars in the Unites States install technology that will preclude the vehicle from being operated by an intoxicated driver. This provision was sponsored by Michigan’s Rep. Debbie Dingell, D, among others.
According to the 2702-page bill, the Department of Transportation will be charged with the responsibility to determine the safety standards applicable to the technology and are required to do so within three years. Car manufacturers will then be given an additional two years to comply with these standards. However, if the DOT fails to finalize the rules within 10 years, the agency must report to the US Congress why they failed to comply.
There is little guidance in the bill relative to how the DOT should exercise their authority other than to say that whatever technology they settle on should “passively” and “accurately” monitor a driver’s performance and determine whether the driver is impaired. Furthermore, the technology must “passively and accurately detect whether the blood alcohol concentration of the driver of a motor vehicle” is too high.
While well-intentioned, there are a host of potential problems with this provision in the infrastructure bill that could result in the DOT’s failure to meet either the 3- or 10-year deadline. Consider first the word “accurate.” Had Congress consulted with anyone in the science community, the language may have read “accurate, precise and reliable.” All three should be required if in fact the technology will stop a person from driving if/when their bodily alcohol level is above a predetermined legal limit. A measuring device can be accurate but not precise. It can be both accurate and precise but lack reliability. Unless the technology is all three, accurate, reliable and precise, it won’t perform in the proscribed manner.
There is also the ever-present issue of false positives, but little more can be said about this issue until the actual measurement is science is determined. What remains universally true though is that all measurement devices, even the DataMaster breath testing instrument used exclusively by law enforcement throughout the state, are prone to false positives.
Additionally, any technology that measures the presence and amount of alcohol will require calibration. Does this mean that car owners will thereafter be required to periodically bring their cars to a service location and pay the cost of calibration? Which begs the question, why should innocent drivers be required to pay the additional expense of having this technology embedded in their cars as well as the cost of upkeep? And those of us old enough to remember will recall Michigan’s Motor Vehicle Emissions Testing Program Act requiring drivers to have the exhaust from their cars “tested” every time they renewed the car’s registration. The problems with this law were replete, and its enforcement such a debacle, that the law eventually had to be repealed. Does the same fate await this law?
Another issue relates to the inherent limitations of this kind of technology, at least as it currently exists. Some drivers are impaired at very low levels of alcohol, levels well below the legal limit. This is one reason why there are two ways to prove that a driver is intoxicated in violation of Michigan’s OWI laws. One theory available to the prosecution is based solely on the legal limit. Lawyers refer to this as the UBAL theory, which stands for unlawful bodily alcohol level. A person can be convicted of OWI based on UBAL based on a bodily alcohol level alone. However, there is also the OUIL theory of OWI. This theory, operating under the influence of liquor, does not require a breath or blood test, and instead is based only on the behavior of the driver. With this theory a Michigan driver can be convicted of OWI with a breath test well below the legal limit. Will the technology prevent both UBAL and OUIL drivers from operating their motor vehicles?
These are only a few of the questions raised by and myriad potential problems with this new law. If history is a reliable guide, then it’s fair to predict that when this law actually goes into effect, and the technology starts showing up in cars, public opinion will surely turn against it. Just as it did for the equally well intentioned emissions testing law. But by then, Biden will have long since left office. Unpopular or not, Biden is unlikely to live long enough to learn whether the bill lives up to the hype, or fails of its essential purpose. That will be a question for future elections and future administrations.