The potential effect on moderate imbibers appears to be one big reason the "driving-while-ability-impaired" idea isn't gaining steam, despite an initial flurry of attention.

"It created a lot of dialogue, but I don't think will ever be workable," said state Senate Criminal Justice Committee Chairman John Whitmire, D-Houston, of the idea submitted to his group by Austin Police Chief Art Acevedo.

The idea wouldn't lower the legal intoxication limit. Instead, it would create an offense for those whose blood alcohol concentration is between 0.05 and 0.07 — below the 0.08 concentration at which people are presumed to be intoxicated.

"If you're going to write up people for that and test 'em on the side of the road for that, you'd probably have to shut down all your bars and restaurants and your sports events. ... Essentially, wine with dinner would have to go out the window," said Whitmire.

No prohibition

While emphasizing that he takes seriously the offense of drunken driving, Whitmire said, "I think society has already decided years ago, they don't want prohibition."

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Whitmire is focused on other related issues, including ensuring repeat drunken-driving offenders acknowledge and receive treatment for alcohol problems, and pushing for a uniform system of dealing with drunken drivers across local jurisdictions.

Acevedo wasn't available for an interview on the driving-while-impaired idea, which he submitted in testimony to Whitmire's committee as part of a broader list of potential proposals.

Acevedo didn't propose a penalty. A first offense of driving while intoxicated is a Class B misdemeanor.

Whitmire said Acevedo told him the idea was largely "to give people an opportunity to plead down to something."

'Makes more sense'

First-time offenders may often agree to a lesser offense in a plea bargain, and the talking points submitted by Acevedo said, "This makes much more sense than reducing a charge to reckless driving or obstructing the roadway."

But the American Beverage Institute, a restaurant trade association, jumped on the so-called "DWI Lite" proposal with both feet.

The group said the idea mistakenly places the focus on moderate social drinkers instead of "hard-core drunk drivers who cause the majority of alcohol-related fatalities."

"The attempt here is about trying to criminalize what has been considered perfectly legal behavior. ... The idea is to discourage people from having anything to drink prior to driving," said Sarah Longwell, managing director of the institute.

She said a 120-pound woman can reach the 0.08 level by drinking two six-ounce glasses of wine in two hours.

The idea of creating an offense at a lower level could cost jobs by having "a chilling effect on moderate and responsible consumption" of alcohol and thus hurting the hospitality industry, she said

Laws already in place

Longwell and others noted that Texas law already allows for someone to be considered intoxicated apart from the 0.08 blood alcohol concentration, defining it as "not having the normal use of mental or physical faculties by reason of the introduction of alcohol" or drugs.

The institute said every state allows for people to be arrested for impaired driving, even with a blood alcohol concentration below 0.08. Colorado and New York have laws in place like the driving-while-ability-impaired idea floated here, it said.

James McLaughlin, general counsel and executive director of the Texas Police Chiefs Association, said his group has no objection to the DWAI idea.

"The idea is to get these people off the road," he said. "Whatever mechanism that can be done legally is what we want to do. They're killing people."

The idea isn't part of the legislative agenda for Mothers Against Drunk Driving, said Bill Lewis, the group's public policy liaison.

He said MADD prefers to focus on priorities that include sobriety checkpoints and ignition interlock devices for all convicted drunken drivers.

"We do not support that (new DWAI offense). It's too strong to say we oppose it," Lewis said. "I'm just not sure it's necessary."

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