Thanksgiving morning in 2016, four people’s lives changed forever. 1
Speeding around a curve on a dark Utah road, while under the
influence of alcohol, a 24-year-old man lost control of his vehicle.2 One of his
passengers died after being thrown through the back window.3
Many people would assume a young driver like him must have
consumed a substantial amount of alcohol to cause such a deadly and devasting
crash. But the driver’s alcohol concentration (BAC) in his blood, reached 0.05%–
below Utah’s BAC limit of 0.08% at the time.4
Just shy of four months later, Utah Gov. Gary Herbert signed
House Bill 155 into law, lowering the state’s BAC limit from 0.08% to 0.05% for a
per se DUI offense.
5
Despite recommendations from national organizations and
proposed legislation among other states in recent years, Utah remains the only state
to have lowered its BAC limit for a per se DUI offense to 0.05%.
6 This change
made Utah the first state to follow a May 2013 recommendation from the National
Transportation Safety Board (NTSB), an independent federal agency, urging all
states to lower their BAC limit from 0.08% to 0.05%.
7
Most states have two separate approaches to prosecute general DUI
offenses: a per se offense based on driver’s BAC and an impairment-based offense
that can apply even if the driver’s BAC is below the 0.08%.8
Tennessee follows this two-pronged approach to DUI offenses.9
Even if a person’s BAC is below 0.08%, the person can still be convicted for a
DUI offense if an “intoxicant,” such as alcohol, impairs a person’s ability to safely
operate a motor vehicle by depriving the driver of the “clearness of mind and
control of oneself that the driver would otherwise possess.”10 The Tennessee Court
of Criminal Appeals has a long and clear history of upholding DUI convictions for
defendants where sufficient evidence of intoxication was based on signs of
impairment and the use of an intoxicant, even if no evidence to the quantity of the
intoxicant existed.11
However, well-recognized traffic safety organizations emphasize
the tragic impact of alcohol-impaired driving, including where drivers had BACs
below 0.08%.
In the United States, the National Highway Traffic Safety
Administration (NHTSA) estimates one person is killed every 44 minutes from a
driver impaired by alcohol–amounting to about 32 deaths every day.12 In 2024,
11,094 people were killed from alcohol-impaired driving crashes.
13 Of those
deaths, 2,028 people were killed by crashes where the drunk driver had a BAC of
0.01% to 0.07%.
14
Unfortunately, the problem extends beyond the individual alcohol-
impaired driver. The Centers for Disease Control and Prevention (CDC) describes
alcohol-impaired driving as a danger to drivers and non-drivers both inside and
outside the vehicle. The CDC states drivers themselves account for 59% of deaths
in alcohol-impaired crashes, while passengers (of the alcohol-impaired driver and
other drivers) account for the remaining deaths.15
Alcohol-impaired crashes impose a significant economic burden. In
2022, the annual cost of alcohol-impaired crashes was approximately $143 billion
dollars, according to the CDC.16
Since 1980s to the mid-1990s, alcohol-impaired driving has
gradually decreased because of tougher DUI legislation (e.g., 0.08% BAC) and
enforcement.17 However, alcohol-impaired driving remains a widespread problem
across the nation.
The 2023 National Survey on Drug Use and Health estimated 15.5
million U.S. residents age 16 or older drove under the influence of alcohol in the
previous year.18 Additionally, the Behavior Risk Factor Surveillance found that
1.5% of American adults reported driving after having too much alcohol to drink in
the previous 30 days, amounting to an estimated 125 million alcohol-impaired
driving episodes.19
Several prominent public health organizations, including the
American Medical Association20 and the World Health Organization,
21 have
supported lowering the BAC limit for DUI offenses.
Law enforcement professionals have also expressed support for
lowering the BAC limit to 0.05% for a per se DUI offense. This support stems
from a strong desire to stop alcohol-impaired driving before crashes and deaths
occur.
“There is no difference, in theory, between putting someone drunk
behind the wheel of the vehicle and driving down the road and taking a gun and
shooting it straight up in the air,” said Andrew Farley, a deputy for the King
County Sherriff’s Department in Seattle, Washington.22 Farley argues a lower BAC
limit would help prosecutors who are often, in his experience, hesitant to pursue
DUI convictions solely because the person’s BAC is below 0.08%.23
As a Tennessee native, Farley began his law enforcement career
working for Clay County, Rutherford County, and the State of Tennessee before
moving to Seattle in 2019.24 He has been recognized as a subject matter expert
specializing in impaired driving, taught at impaired driving conferences across the
country, and testified in about 100 pre-trial hearings related to impaired driving
offenses.25
The 0.05% change would acknowledge well-researched evidence
that a BAC of 0.08% is not the threshold for whether a person is impaired by
alcohol or not. Farley said, “There is inherent evidence that shows impairment
starts below a 0.05%, but that people are inherently impaired at a 0.05%.’’26 The
NHTSA states a person with a BAC of 0.05% may experience exaggerated
behaviors, loss of small-muscle control, experience trouble focusing their eyes,
reduced alertness, lowered inhibitions, and impaired judgment.27 While driving, a
person with a BAC of 0.05% might have difficulty tracking moving objects,
steering, and responding to emergency driving situations.28
In Washington State, Senate Bill 5067 proposed lowering the BAC
limit for operating a vehicle or watercraft from 0.08% to 0.05% at the request of
the Washington Traffic Safety Commission.29 The bill passed the Senate in January
2026 but later stalled House Community Safety Committee.30
Utah provides perhaps the clearest and most significant evidence
for supporters of a lower BAC limit.
Comparing to 2016 (one year before the enacted law) to 2019 (one
year after the enacted law), NHTSA found the state’s fatal crash rate decreased by
19.8% and the fatality rate was 18.3%.
3132 That reduction greatly surpassed the
national 5.6 % fatal crash rate reduction and the national 5.9% fatality rate
reduction during the same period.33 Neighboring states, such as Arizona, Colorado,
and Nevada did not show similar rates of reductions.34
Opponents of a 0.05% per se BAC limit argue this change will
wreak havoc on the hospitality and liquor industries, while increasing costs for
taxpayers with additional arrests and incarceration. Evidence from Utah suggests
these well-founded concerns are overstated.
Alcohol sales revenues and per capita alcohol consumption appear
to be relatively unaffected after the new Utah law took effect.35 Moreover, sales tax
revenue for hospitality businesses, such as hotels, restaurants, resorts, or rental
cars, have followed similar patterns.
36 Notably, DUI arrests did not increase
sharply from 2016 and 2019.37
One of the most promising influences of the Utah’s law is its
impact on changes in individual drivers’ behaviors.
Of those reported driving under the influence of alcohol, over
twenty-two percent (22.1%) of persons said they changed their behaviors because
of Utah’s new law.38 The most common of these changed behaviors was
individuals reducing their alcohol consumption while away from home.39
A 2017 NTSB study estimated about 1,800 lives would be saved
each year if all states lowered their BAC limit to 0.05%.40 This study also
estimated such a change could reduce thousands of alcohol-impaired injuries and
decrease alcohol crashes by 11%.41
Farley remains optimistic that future legislation lowering the BAC
to 0.05% in Washington, like SB 5067, will be successful soon. “It will eventually
pass because we keep garnering support, but it’s taken time.”42 Alongside
Washington, Tennessee should consider similar legislation, following Utah’s
example to address alcohol-impaired driving.
1 Robert Gehkre, Here’s a look at 15 years of the fatal accidents involving drivers with a BAC between 0.05 and
0.08, SALT LAKE TRIBUNE (Feb. 13, 2018, at 5:45 AM), https://www.sltrib.com/news/politics/2018/02/13/heres-
look-at-15-years-of-the-fatal-accidents-involving-drivers-with-a-bac-between-005-to-008/. (Last visited Sept. 9,
2026).
2 Id.
3 Id.
4 UTAH CODE ANN. 41-6a-502(1)(c) (2016).
5 Anthony Rivas, Utah set to drop blood alcohol limit to .05, making it the strictest in the country, ABC NEWS (Dec.
15, 2018, at 12:19 PM), https://abcnews.com/US/utah-set-drop-blood-alcohol-limit-05-making/story?id=59837358.
(Last visited on Sept. 16, 2026).
6 Ryan Bittan, Utah’s strict .05 BAC limit has significantly reduced drunk driving deaths, study says, ABC4 UTAH
(Jul. 8, 2026, at 1:27 PM), https://www.abc4.com/news/local-news/utah-bac-law-reduces-deaths/ (Last visited Sept.
20, 2026).
7
Dustin Daniels
7 Thomas, F. Dennis, et al. (2022, February). Evaluation of Utah’s .05 BAC per se law (Report No. DOT HS 813
233). NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION (2022), HTTPS://ROSAP.NTL.BTS.GOV/VIEW/DOT/60428
(Last visited Sept. 20, 2026).
8 DWI vs. DUI: What’s the Difference, MOTHERS AGAINST DRUNK DRIVING, https://madd.org/blogs/dwi-vs-dui-
whats-the-difference/ (Last visited Sept. 20, 2026).
9 TENN. CODE ANN. 55-10-401(1), (2).
10 11 TENN. CODE ANN. 55-10-401(1).
See, e.g., State v. Whaley, No. E2024-00387-CCA-R3-CD, 2025 WL 3541414, at *50-53, (Tenn. Crim. App. Dec.
10, 2025), perm. app. denied (Tenn. May 21, 2026); State v. Hinds, No. 2022-00544-CCA-R3-CD, 2023 WL
5164634, at *15 (Tenn. Crim. App. Aug. 11, 2023), perm. app. denied (Tenn. Jan. 11, 2024); State v. Dye, No.
M2018-01191-CCA-R3-CD, 2019 WL 5172275, at *6 (Tenn. Crim. App. Oct. 15, 2019); State v. Amble, No. E2016-
02495-CCA-R3-CD, 2018 WL 1989632, at *4 (Tenn. Crim. App. Apr. 27, 2018); State v. Carey, No. M2014-02373-
CCA-R3-CD, 2015 WL 8482746, at *11 (Tenn. Crim. App. Dec. 15, 2015); State v. Ford, 725 S.W.2d 689, 691
(Tenn. Crim. App. 1986); State v. Moses, 701 S.W.2d 629, 631 (Tenn. Crim. Ct. App. 1985); State v. Morgan, 692
S.W.2d 428, 429-30 (Tenn. Crim. Ct. App. 1985).
12 Drunk Driving, NATIONAL HIGHWAY AND TRAFFIC SAFETY ADMINISTRATION, https://www.nhtsa.gov/risky-
driving/drunk-driving (Last visited Sept. 20, 2026).
13 Id.
14 Id.
15 Impaired Driving Facts, CENTERS FOR DISEASE CONTROL AND PREVENTION, https://www.cdc.gov/impaired-
driving/facts/index.html (Last visited Sept. 20, 2026).
16 Id.
17 Alcohol-Impaired Driving, NATIONAL HIGHWAY AND TRAFFIC SAFETY ADMINISTRATION,
https://www.nhtsa.gov/book/countermeasures-that-work/alcohol-impaired-driving (Last visited Sept. 20, 2026).
18 Id.
19 Id.
20 Ralph W. Hingson, et al. Preventing impaired driving, NATIONAL LIBRARY OF MEDICINE. Alcohol Res Health.
1999;23(1):31-9. PMID: 10890796; PMCID: PMC6761696.
https://pmc.ncbi.nlm.nih.gov/articles/PMC6761696/#b1-arh-23-1-31 (Last visited Sept. 20, 2026).
21 SAFER: Advance and enforce drink driving counter measures, WORLD HEALTH ORGANIZATION,
https://www.who.int/initiatives/SAFER/drink-driving (Last visited Sept. 20, 2026).
22 Telephone Interview with Andrew Farley, Sheriff’s Deputy, King County Sheriff’s Department (Sept. 13, 2026).
23 Id.
24 Id.
25 Id.
8
Dustin Daniels
26 Id.
27 ABCs of BAC: A Guide to Understanding Blood Alcohol Concentration and Alcohol Impairment, NATIONAL
HIGHWAY AND TRAFFIC SAFETY ADMINISTRATION,
HTTPS://WWW.NHTSA.GOV/SITES/NHTSA.GOV/FILES/DOCUMENTS/809844-
THEABCSOFBAC.PDF?_GA=2.240541251.1950441857.1670896555-1020648412.1670896554
(Last visited Sept. 20, 2026).
28 Id.
29 0.05 BAC Saves Lives, WASHINGTON TRAFFIC SAFETY COMMISSION, https://wtsc.wa.gov/safe-driving/drive-
sober/05-bac/ (last visited Sept. 16, 2026).
30 Jerry Cornfield, Drunk driving limit will not be lowered in Washington this year, WASHINGTON STATE STANDARD
(Feb. 25, 2026, at 5:31 PM), https://washingtonstatestandard.com/2026/02/25/drunk-driving-limit-will-not-be-
lowered-in-washington-this-year/. (Last visited on Sept. 16, 2026).
31
33 Id.
34 Id.
35 Id.
36 Id.
37 Id.
38 Id.
39 Id.
41 Id.
32 Thomas, F. Dennis, et al. (2022, February). Evaluation of Utah’s .05 BAC per se law, supra note 7.
40 NTSB Recommendation of .05 BAC Further Proved NHTSA Study, NATIONAL TRANSPORTATION SAFETY BOARD
(Feb. 11, 2022), https://www.ntsb.gov/news/press-releases/Pages/NR20220211.aspx (Last visited Sept. 20, 2026).
42 Telephone Interview with Andrew Farley, supra note 22.