Actually, I have seen this photo of a billboard and I just watched the commercial which is available here from abcnews.com.
For those of you who don't want to bother to watch it, I'll give you the rundown:
The scene is a wedding reception, winding down, slow song at the end of the night. You see one young man who is obviously wasted, stumbling around, stumbling up to the stage and banging on the band's drums.
The voiceover says, "It's easy to tell when you've had way too many. But what about when you've had one too many?"
Now you see an apparently sober looking man, drinking a last gulp from his drink before he and his wife head out the door.
Finally, the voiceover says, "Buzzed Driving is Drunk Driving."
First, let me start with the personal and get it out of the way. I don't condone drunk driving, I don't drive drunk. Throughout college, my friends and I always had a designated driver or just walked home. Now, I'm lucky to live in an area where I pretty much never drive anywhere, so it's not much of an issue. But if I go somewhere and I know I'm going to have to drive, say a wedding, I would probably have only one drink, two at the most, depending on how many hours I'm going to be there. It's fair to say that I err on the side of caution when it comes to drinking and driving.
Now the legal. The point of this ad campaign, I believe, is to draw the following line of thought:
Buzzed Driving = Drunk Driving = Illegal...
Therefore, Buzzed Driving = Illegal
Which just simply isn't true. It's a clear misstatement of the law. In fact, as a defense attorney, when we voir dire in drunk driving cases, one of the things that we want to be sure that every juror understands is that it is not illegal to drink and drive, it is only illegal to drive while legally intoxicated.
So, what is the legal definition of intoxicated? Simple. And very objective. A blood alcohol level above .08 is legally intoxicated.
How drunk is .08? Well, that's the part that's kind of subjective. Different people are going to feel and function differently at .08. This BAC calculator is kind of fun to play with and gives you an idea of what your BAC. Even MADD tells us that:
To reach a .08 BAC level, a 170-pound man would have to drink approximately four drinks in one hour on an empty stomach or a 137-pound woman would have to drink approximately three drinks in one hour on an empty stomach.
That's quite a bit. But, I think the question remains, how do you feel at .08? Do you feel, "Whoa, I'm wasted!" or do you feel, "Hey, I've got a little buzz on, but I'm good to drive?"
In speaking to experts on the subject (and I mean actual PhDs, not just people who drink a lot), it really just depends on the person. Experts tell us that people who drink very frequently may be able to function quite well, even at very high BACs. Likewise, ask around and you'll find that many people have been to parties where the drinks were either very watered down or not alcoholic at all, and yet one person who didn't know this stumbled around saying, "I'm getting sooo drunk!" Are they just faking? No, experts say that a large part of how drunk we feel or act is in our heads.
Other factors, besides a person's drinking history, is how much they've had to eat, their size, the types of drinks, the time period during which they had the drinks and the time period since the last drink.
(For example, imagine someone doing four shots of tequila and then immediately getting into a car to drive just a few blocks. Science tells us that they can't yet be intoxicated - the alcohol hasn't had time to enter their bloodstream. But imagine a cat jumps out in the street, they swerve to avoid it, and hit a parked car. When the police come, they're going to smell the alcohol. And by the time you get down to the station and take the test, he's going to blow a BAC much higher that what he had at the time of the accident.)
So, why is this ad campaign driving me nuts? What's so untrue about it? It's a real under-exaggeration of the legal standard for intoxication.
Look again at the "buzzed" guy. There aren't even any other empty glasses on the table! And he didn't even finish that one drink! True, he kind of bumped into the door. Maybe he's just klutzy. Or being gentlemanly and making sure there's enough room for his wife to get through the door. I don't think there's anything to lead us to believe he's had much to drink except that one gulp we saw - and there's certainly nothing to lead us to believe he has had "one drink too many." Unless we're going along with MADD and saying that even one drink is one drink too many.
Finally, what does all of this have to do with driving? Are buzzed drivers causing accidents? In general, the answer is no.
In the cases I've seen where a DWI arrest is made for someone driving with a BAC between .08 and around .12, nearly 100% of those arrests are made as the result of a checkpoint stop. In other words, the drivers with BACs at or near .08 simply aren't drivers that are causing accidents. Instead, in most of the DWI accident cases I've seen, and there's a lot of empirical evidence to support this, the BACs are higher - usually over .12. These are clients that, even when I interview them hours later, still smell like alcohol, still have slurred speech, and often can't remember what happened.
But I understand that a cutoff needs to be set. And I even agree that it should be set on the lower side, again, erring on the side of caution and keeping in mind that alcohol effects each person differently.
My real problem is with the use of the word "buzzed," a very subjective word, that to some people may mean that first warm feeling you get from just a sip of alcohol, and to others it may mean something a lot closer to "drunk."
(Kind of like some people think "hooking up" is something along the lines of making out or fooling around or whatever, and other people think "hooking up" means actual sex. It's all just slang. It's not like you can look it up in the dictionary and see what "buzzed" or "hooking up" means.)
And it seems that maybe this commercial wants you to believe that "buzzed" could mean one drink or less. There certainly is no further explanation as to how much the "buzzed" man in the commercial has had to drink. And yet, it's being equated to drunk and illegal driving.
It's misleading and it's a misstatement of the law. Many people rely on the media to tell them the state of the laws. When a new law goes into effect, or a law is changed, people expect to hear about it on television. I'm concerned that people will mistake this advertisement for a report on the current state of the law. And, I don't want any juror who has seen this commercial or who believes it, for fear that they may substitute this advertisement's misstatement of the law for the actual law, despite the correct instructions from the judge.