• Don’t Hold Your Breath: Furthering the Fight Against Drunken Driving Until Autonomous Vehicles Arrive

    Don’t Hold Your Breath: Furthering the Fight Against Drunken Driving Until Autonomous Vehicles Arrive

    By Russell Spivak, JD ’17[*]

    Interlocking Ignition Devices (IIDs) restrict a driver from turning on a car unless he or she passes a Breathalyzer examination. There is significant reason to think that promoting—if not mandating—the installation of such technologies in all cars, regardless of their drivers’ drinking habits or driving records, would lead to a substantial decline in auto accidents, along with a commensurate recapture of economic value. This Article explicates why this life-saving technology has not been more widely adopted already. It then offers a few potential levers by which federal or state governments can induce or compel the adoption of these life-saving devices within the confines of administrative law and the strictures of federalism. Finally, the Article briefly details a few pragmatic issues associated with inducing the adoption of IIDs, including 4th Amendment concerns and the auto insurance industry’s response.

     

    Introduction

    It is possible that autonomous cars will be ubiquitous by the time today’s tweens get behind the wheel.[1] But to paraphrase Mark Twain, reports of human-operated cars’ death may be exaggerated.[2] Until that day comes, however, we must continue to navigate the roads ourselves, and face the perils of drivers’—including our own—human error. At the forefront of such perils is drunk driving. In spite of the tremendous work done by law enforcement and non-profit organizations—not to mention the unsung heroes that steal their friends’ keys—who try to combat this danger, “[i]n 2015, 10,265 people died in alcohol-impaired driving crashes, accounting for nearly one-third (29%) of all traffic-related deaths in the United States.”[3] In other words, “28 people in the United States die[d] in motor vehicle crashes that involve an alcohol-impaired driver” daily. On average, one such death occurred every 53 minutes.[4] To put this number in perspective, firearms took only 20% more lives than drunk driving the year before.[5] Yet the ongoing and fervent debate regarding gun control far outpaces its drunk driving equivalent.

    The next logical question must be: are we really putting a proportional amount of effort and legislative focus into staving off drunk driving-related deaths? It seems unlikely. This article seeks to begin rectifying that shortfall, bridging the gap between today’s reality and tomorrow’s autonomous protections.

    Luckily, this article is not alone in its pursuit of interim solutions. In 2008, the National Highway Traffic Safety Administration (NHTSA) and the Automotive Coalition for Traffic Safety began researching

    potential in-vehicle approaches to the problem of alcohol-impaired driving. . . . This cooperative research partnership, known as the Driver Alcohol Detection System for Safety (DADSS) Program . . . is developing non-intrusive technologies that could prevent the vehicle from being driven when the device registers that the driver’s blood alcohol concentration (BAC) exceeds the legal limit[.][6]

    After investing $2.25 million to research promising non-intrusive technologies,[7] DADSS zeroed in on “two different technologies for vehicle integration: a breath-based system and a touch-based system.”[8] The former is essentially an ambient breathalyzer: it reads alcohol levels in the driver’s exhaled air without requiring him to blow into a specific tube. The latter measures BAC by detecting alcohol just below the surface of one’s skin via infrared light.[9] “The National Highway Traffic Safety Administration in the U.S. is hoping the new equipment will be ready for roll-out by 2020.”[10] Recent technological advances like the above offer renewed hope for exceptional accuracy as well as more space-efficient machinery.[11] Furthermore, they are designed to be more proactive in avoiding drunk driving and saving lives. Both of these technologies are part of the larger family of Interlocking Ignition Devices (IIDs), which prevent the operator of a car from starting the car if he or she fails a breathalyzer test.

    IIDs are not new: they were developed in the latter half of the 20th century. They have gained near-universal favorability across the country[12]: all 50 states and Washington, D.C. use IIDs in some fashion when convicted DUI drivers seek to return to the roads.[13] Other countries have followed suit.[14]

    It is time to rebrand this technology not as solely punitive, but as preventive. While the NHTSA Report expressed skepticism about the current feasibility of installing IID technology, it nevertheless made clear that the IID is the future of auto safety.[15] What is more, with proper forethought, solutions to compel IIDs’ uptake can stay current with new technology: states need only update their statutes defining IIDs to include the new devices. Scientists who have studied the effects of IID installation have recommended putting such devices in newly manufactured cars.[16]

    So here’s the $64,000 question: how can governments pave the way for the universal adoption of IIDs? This Article explores just that.

    To begin, the Article looks at a history of drunk driving in the United States and early efforts to combat this all-too-preventable killer. Section II zeroes in on drunk driving today: its demographics and, particularly, its costs. Section III explains IIDs in more detail, from their technological underpinnings to their use today. Section IV details strategies for implementation within and without the tax code. Section V denotes certain additional considerations that may come to bear on the debate. Finally, the article concludes by recommending particular strategies to incentivize adoption of IIDs, thereby saving lives.

     

    I. A Brief History of Drunk Driving and Responses Thereto

    In 1906, New Jersey became the first state in the Union to enact legislation outlawing drunk driving.[17] Its violation—which did not articulate a specific blood alcohol content (BAC)[18]—was punishable by $500 or potential jail time.[19] This was typical of early drunk driving laws, which “made it illegal to drive while intoxicated but did not provide a statistical definition of intoxication. As a result, prosecutors normally had to present testimony that the defendant was showing outward signs of intoxication, like imbalance or slurred speech.”[20]

    In the 1930s, as driving’s popularity increased and drunk driving became an increasingly pressing issue, “a number of medical men and other scientists in this country became intensely interested in the problem of the drinking driver upon our highways and the use of chemical tests to determine alcoholic influence as one of the means of coping with it.”[21]

    It was not until 1938, however, that two national institutions sought to better codify what it meant to operate under the influence of alcohol. The American Medical Association teamed up with the National Safety Council to issue a report in an effort to make DUI-related laws more uniform. The report stated that:

    • Below 0.05 percent alcohol in the blood: no influence of alcohol within the meaning of the law.
    • Between 0.05 and 0.15 percent, a liberal, wide zone: alcoholic influence usually is present, but courts of law are advised to consider the behavior of the individual and circumstances leading to the arrest in making their decision.
    • 15 percent [or above]: definite evidence of “under the influence”, since every individual with this concentration would have lost to a measurable extent some of the clearness of intellect and control of himself that he would normally [have].[22]

    Shortly afterwards, “[i]n 1939, Indiana enacted the first law that defined presumptive intoxication based on BAC levels, using the recommended 0.15% standard. Other States soon followed and then, in response to updated guidance from national organizations, lowered the presumption to a BAC level of 0.10%.”[23]

    At the federal level, however, nothing was done to combat drunk driving until Congress passed the Highway Safety Act of 1966.[24] The State Highway Safety Program, commonly referred to as Section 402, was initially authorized by the Act; Section 402 offers grants to states for “[s]tate highway safety programs, designed to reduce traffic crashes and resulting deaths, injuries, and property damage.”[25] However, legislative—and non-legislative—efforts to curb drunk driving only began in earnest “[d]uring the early 1980s, [as] citizens across the country began demanding an end to this waste of human life.”[26] Concerned citizens formed Mothers Against Drunk Driving (MADD) in 1980.[27] MADD was aided in part by its youth counterpart, SADD, or Students Against Drunk Driving, which was founded in 1981. MADD focused much of its efforts on political activism, while SADD rose to prominence via peer-to-peer education, aiming to dovetail with MADD’s successes by attacking the problem from a complementary angle.

    But citizen activists were not alone in the fight: in 1982, Congress created the Traffic Safety Information System Improvement Grant Program, otherwise known as the Section 408 Program.[28]

    To qualify for a basic grant under the Section 408 program, states were required to meet four criteria, including the enactment of a .10 BAC per se law.[29] States that qualified for basic grant funds could qualify for supplemental grants based on additional criteria, including the enactment of a .08 per se law.[30]

    Two years later, it passed the National Minimum Drinking Age Act, which required states to pass individual legislation to raise the drinking age to 21.[31] Four years after that, Congress instituted additional grants with criteria and purpose similar to Section 408.[32]

    Unsurprisingly, “729 changes in laws were made in an effort to reduce fatal crashes involving drunken drivers” from 1981 through 1986: some jurisdictions enacted new laws, while others merely ratcheted up existing ones.[33] In addition, these laws came in all shapes and sizes, ranging from administrative regulations that authorized license suspensions and civil penalties to criminal per se laws that carried severe criminal penalties.[34] These laws showed a marked effect: for example, “[c]riminal per se laws against drunken driving and increased penalties were each accompanied by 6-percent declines in night fatal crashes relative to States that did not pass such laws.”[35]

    The federal government continued to combat drunk driving in the 1990s. It passed a flurry of resolutions to declare a national week[36]—or month[37]—in recognition of the fight against drunk driving as well as multiple substantive laws addressing the problem. The Drunk Driving Victims’ Protection Act prevented bankruptcy courts from discharging debt arising from a DUI-based judgment.[38] The Violent Crime Control and Law Enforcement Act of 1994 subjected drunk drivers to harsher penalties if they committed the act with a child in the car.[39] In 1998, Congress “authorized $500 million in incentive grants to states that adopt .08 BAC laws.”[40] And in 2000, after publicly championing the fight against drunk driving throughout his presidency,[41] President Clinton signed legislation to institute a national minimum standard of .08 BAC for drunk-driving laws.[42] Today, all fifty states criminalize driving with .08 g/dL BAC, though “specific laws and penalties vary substantially from state to state.”[43] Unfortunately, progress appears to have stalled. In 2013, the National Transportation Safety Board recommended that all states lower their legal limit from .08 to .05, [44] but the Bush and Obama Administrations continued to fund the grant programs as is. Furthermore, no state has yielded to the NTSB’s recommendation.[45]

    Interestingly, the private sector has tried to offer solutions, too. After the turn of the century, technology gave rise to one interesting wave of anti-drunk driving strategies: ride sharing. Proponents of ride sharing argued that companies like Uber and Lyft could effectively combat drunk driving by offering more widely-available sober alternatives.[46] One (unpublished) study found that these services have had a statistically significant effect.[47] A more recent study, however, claims otherwise.[48] The authors of the latter study suggested some potential causes for their findings: the supply of drivers may not have been large enough to have a statistically significant effect; ride-sharing’s primary users may not own a vehicle, meaning they would not otherwise drive, drunk or not; or, said primary users would have otherwise called a taxi anyway.[49] The scarier—and more unfortunate—cause may be that despite the existence of ride-sharing programs, individuals nevertheless believe the risk of getting caught or getting into an accident while driving drunk is so low that they remain undeterred and pick up their keys after their bar tab.[50] Discussing the study’s findings, a Washington Post reporter summed it up best: “Drunks, after all, are just not rational.”[51]

    As a result of this progression, DUI-related deaths decreased dramatically through the end of the 20th century. In 1982, drunk driving deaths hit 21,113, steadily declining until 1999 at 12,555. After a few years hovering around that mark, the fatalities dropped again through 2011 to its lowest mark, 9,865. Since then, however, that figure has plateaued. The universal installation of IIDs can resume the decline towards zero drunk driving deaths.

     

    II. Drunk Driving’s Effects Today

    A. Demographics

    “In 2014, there were 9,967 fatalities in motor vehicle traffic crashes involving a driver with a BAC of .08 g/dL or higher; this was 31 percent of total traffic fatalities for the year.”[52] Unsurprisingly, the demographics of those behind the wheel in alcohol-impaired crashes trend towards younger drivers, particularly males:

    In fatal crashes in 2014, the highest percentage of drivers with BACs of .08 g/dL or higher was for 21- to 24-year-old drivers (30%), followed by 25- to 34-year-old drivers (29%). The percentage of drivers with BACs of .08 g/dL or higher involved in fatal crashes was 23 percent among males and 15 percent among females. In 2014, there were 4.5 male alcohol-impaired drivers for every female alcohol-impaired driver (7,574 versus 1,671).[53]

    Unfortunately, the NHTSA does not give a detailed breakdown of the demographic information of drunk-driving victims. But it does leave us with one particularly chilling thought:

    In 2014, a total of 1,070 children 14 and younger were killed in motor vehicle traffic crashes. Of these 1,070 fatalities, 209 children (19%) died in alcohol-impaired-driving crashes. Of these 209 child deaths: 116 (56%) were occupants of vehicles with drivers who had BACs of .08 g/dL or higher; 61 (29%) were occupants of other vehicles; 30 (14%) were nonoccupants (pedestrians, pedalcyclists, or other nonoccupants)[.][54]

    This stark reality alone should be enough to prompt significant action to curb drunk driving.

     

    B. Costs

    In its most recent study of the costs of alcohol-involved crashes in the United States, the Department of Transportation’s National Highway Transportation Safety Administration concluded that, “[o]verall, alcohol involved crashes cost $52 billion in economic costs in 2010[.]”[55] Even though “not all crashes in which alcohol was present were caused by alcohol,”[56] it is still true that:

    Crashes in which alcohol was the cause resulted in 11,226 fatalities, 326,000 nonfatal injuries, and $43.2 billion in economic costs. This is approximately 84 percent of the alcohol-related fatalities and 82 percent of alcohol-related economic costs. It represents 34 percent of all fatalities and 18 percent of all costs from motor vehicle crashes.[57]

    The report also found that crashes involving alcohol account for a disproportionate percentage of fatalities in automobile incidents.[58] Additionally, the report’s cost estimates reflect the gender disparities in perpetrators of drunk driving accidents mentioned above[59] as well as the fact that most victims tend to be younger, meaning the cost of death—or even lost productivity—is higher.[60] But these costs are only the “economic costs,” defined as:

    The monetary impact of traffic crashes resulting from goods and services expended to respond to the crash, treat injuries, repair or replace damaged property, litigate restitution, administer insurance programs, and retrain or replace injured employees. Economic costs also include the health and environmental impacts that result from congestion, the value of workplace and household productivity that is lost due to death and injury, and the value of productivity and added travel time that is incurred by uninvolved motorists due to congestion from traffic crashes.[61]

    That means that these estimates do not include the value of a statistical life! When factoring in values associated with quality of life as well as the statistical value of life,[62] the total value of societal harm from alcohol-induced motor vehicle incidents is $236 billion,[63] while “[c]rashes in which alcohol was the cause resulted in $194 billion in societal harm in 2010.”[64]

     

    III. Interlocking Ignition Devices

    Because IIDs are traditionally only required for people who have already been convicted of a drunk driving offense, readers who do not have a direct connection with drunk driving may be unfamiliar with them. Therefore, this section of the Note first aims to inform readers about how IIDs work, their current usage across the country, how Congress has previously toyed with their adoption, and how deploying them more broadly would affect our country.

     

    A. How IIDs Work and Where They Are Currently Deployed

    As stated earlier, all 50 states implement IIDs in some way, shape or form in drunk-driving punishments.

    Broadly speaking, these laws fall into three categories. “Permissive” interlock laws allow judges or other sentencing authorities, at their discretion, to require individuals convicted of DUI offense to use an interlock. “Partial” laws mandate interlock use for specific categories of offenders, such as repeat DUI offenders. “Mandatory/all” laws require all individuals convicted of a DUI offense to use an interlock in order to drive legally. As of March 2016, two states have permissive interlock laws, 22 states have partial interlock laws, and 26 states have mandatory/all interlock laws. Adoption of interlock laws was partly prompted by enactment of a 2000 federal law that provided financial incentives for states to enact interlock laws.[65]

    But how do they work?

    For all intents and purposes, IIDs are in-car breathalyzers. “First, the device is installed in the vehicle (typically in the glove compartment on the passenger’s side). It is then hardwired to the engine’s ignition system.”[66] Then, “[t]he driver must provide a breath sample below a State-established calibration setting (called a set point) to start the vehicle. Most States use a calibration setting of .02 blood alcohol concentration.”[67] Additionally, the devices are equipped with pressure and temperature gauges to prevent cheating the test by spraying compressed air from an outside source instead of breathing into the device.[68] Finally, all IIDs are required to pass NHTSA’s standards,[69] regulating their accuracy and thus efficacy.

    To be fair, there is an inherent flaw in the product: the device cannot know who is performing the test.[70] Unfortunately, this means a sober passenger could perform the test in lieu of a drunken driver. Technically speaking, there is not yet a perfect solution for this problem,[71] but attaching camera systems to IIDs is a good start that is currently underway.[72] States criminalize cheating IIDs, either via tampering with the device or otherwise circumventing it.[73] More practically, logic dictates that individuals sober enough to pass the test have little incentive to cheat a breathalyzer on behalf of a drunk driver, thereby risking their own safety in the process. Though this is a problem, perfection should not prohibit progress.

     

    B. A Brief History of the Federal Government’s Interest in IIDs

    IIDs are not new to Congress. In 1970, the

    National Highway and Traffic Safety Administration issued a prospectus entitled ‘Some Considerations Related to the Development of an Alcohol Safety Interlock System (ASIS)’ . . . to organizations who have previously expressed an interest in this subject. . . . A letter accompanying the prospectus, requested (1) descriptions of potential ASIS, (2) a discussion of the possible solutions to problems mentioned, and (3) a description of the responding firms experience and capabilities in the area of interest.[74]

    Studies throughout the 1970s repeatedly demonstrated technological insufficiency: early versions of the IID were too inaccurate for viability.[75] Yet by 1988, the Department of Transportation reported to Congress that breathalyzer technology for IIDs was “feasible” for large-scale implementation and deployment.[76]

    Since that time, Congress has repeatedly looked to IIDs, particularly to deter repeat offenders in drunk driving cases.[77] But, to be certain, Congress is well aware of the role IIDs can play in combatting drunk driving more broadly.

     

    C. Cost Savings Via Installation

    Many scientific studies have discussed the role IIDs can—and do—play when states mandate their use. These studies universally concluded that, as one commentator summarized, “[w]hen installed, interlocks can reduce DUI recidivism.”[78] One study found that introduction of IID laws was “effective in reducing recidivism by a median of 67 percent.”[79]

    But in 2014, scientists looked beyond the scope of punitive IID use to estimate the effects associated with installing IIDs in all new vehicles purchased in the United States, regardless of the driver’s past actions.[80] In particular, the study endeavored to assess the injury prevention impact and the subsequent cost savings in such a scenario. It first looked to states that enacted punitive IID laws for DUI convictions during a 15-year time period, measuring the natural experiment’s impact on fatalities in alcohol-related motor vehicle crashes.[81] Given the measured changes, the study concluded that installing IIDs in all new cars “would result in a total of 59,554 lives saved and 1.25 million nonfatal injuries prevented over 15 years.”[82] Putting that in economic terms, IID’s universal usage would “decrease the economic cost of fatal injuries by $260 billion and nonfatal injuries by $83 billion, totaling almost $343 billion in savings.”[83] Said another way, for every $1.00 spent in enforcement, $6.60 would be saved in medical and life costs.[84]

    Even more impressive were the projected cost-savings over time:

    Assuming the cost of a device is $400/vehicle and the interlocks function correctly 100% of the time, the injury cost benefit outweighs the device per vehicle cost after 3 years. As device effectiveness decays . . . a greater number of years is required to achieve the same level of cost savings; however, universal implementation remains cost effective within the 15-year implementation time period until the effectiveness passes below 25%.[85]

    Recognizing the cost-benefit favorability of universal installation, the scientists also identified “[s]everal barriers to . . . wider implementation”: technological deficiencies—although improved IIDs are currently being developed—and insufficient public awareness of IIDs’ existence.[86] Below are strategies to cure both of these problems.

     

    IV. Strategies to Incentivize IID Usage

    This section expounds on the strategies that can be taken to induce IID usage, breaking strategies up by whether they are specific to the federal government, state governments, or could be undertaken by either.

     

    A. Federal-Specific Strategies to Induce IID Uptake

    There are a few strategies that can realistically only be taken up at the national level: specifically, regulating the installation and usage of IIDs in automobile manufacturing.[87] Three strategies stand out: mandating breathalyzers generally while encouraging IIDs, mandating IIDs, and leveraging highway financing to induce states. As demonstrated below, either strategy involving regulating breathalyzers or IIDs is plainly within the National Highway Transportation Safety Agency’s jurisdiction.[88] All three measures are ultimately recommended, as any could help achieve the policy goal of increasing usage and thus reducing drunk-driving accidents.

    i. Mandate Breathalyzers While Permitting IIDs in Automobiles

    Short of mandating IIDs in every car, the Secretary of Transportation can mandate installing breathalyzers in cars to encourage their use, even if they are unconnected to the ignition system, while permitting IIDs to satisfy this requirement. As Justice Byron White explained,

    [i]n 1966, Congress decided that [part of preventing car accidents] lies in improving the design and safety features of the vehicle itself. But much of the technology for building safer cars was undeveloped or untested. Before changes in automobile design could be mandated, the effectiveness of these changes had to be studied, their costs examined, and public acceptance considered. This task called for considerable expertise and Congress responded by enacting the National Traffic and Motor Vehicle Safety Act of 1966 (Act). The Act, created for the purpose of “reduc[ing] traffic accidents and deaths and injuries to persons resulting from traffic accidents,” directs the Secretary of Transportation or his delegate to issue motor vehicle safety standards that “shall be practicable, shall meet the need for motor vehicle safety, and shall be stated in objective terms.” In issuing these standards, the Secretary is directed to consider “relevant available motor vehicle safety data,” whether the proposed standard “is reasonable, practicable and appropriate” for the particular type of motor vehicle, and the “extent to which such standards will contribute to carrying out the purposes” of the Act.[89]

    Motor vehicle safety standards, officially known as Federal Motor Vehicle Safety Standards (FMVSS),[90] are designed under three overarching themes: crash avoidance, crashworthiness, and post-crash standards.[91] They are written

    in such a manner that the public is protected against unreasonable risk of accidents occurring as a result of the design, construction or performance of motor vehicles and is also protected against unreasonable risk of death or injury to persons in the event accidents do occur, and includes nonoperational safety of such vehicles.[92]

    “[A] person may not manufacture for sale, sell, offer for sale, introduce or deliver for introduction in interstate commerce, or import into the United States, any motor vehicle or motor vehicle equipment . . . unless the vehicle or equipment complies with the standard.”[93] An FMVSS can mandate a technology’s inclusion in a car, even if its usage is not required to drive the car.

    Seatbelts provide a perfect example. FMVSS 208, entitled Occupant Crash Protection,

    specified the type of occupant restraints (i.e., seat belts) required. It was amended to specify performance requirements for anthropomorphic test dummies seated in the front outboard seats of passenger cars and of certain multipurpose passenger vehicles, trucks, and buses, including the active and passive restraint systems identified below. The purpose of the standard is to reduce the number of fatalities and the number and severity of injuries to occupants involved in frontal crashes.[94]

    Despite the fact that seatbelts must be placed in automobiles pursuant to Standard 208 and that manufacturers must include reminders to use them,[95] states decide whether their use is mandatory.[96] In practice, however, because of the ubiquity of seatbelts in motor vehicles, seatbelt use is second nature to many Americans.

    By mandating breathalyzers in all new cars, the federal government could take a big step toward informing drivers when they have had too much to drink, even if it would not mechanically inhibit drivers from starting their cars while intoxicated. A breathalyzer forces potential drunk drivers to directly confront the fact that they are, in fact, too intoxicated to safely drive. Knowledge is power.

    And should states or manufacturers not place IIDs in cars, courts could use the data collected—or not—from breathalyzers in DUI sentencing. For example, if a driver self-administered a breathalyzer and it warned him that he was over the limit, his decision to forge onwards is unquestionably relevant to the sentencing judge. The same could be said for someone whose BAC was borderline: if she had self-administered a test and the result came back negative, her sentence could reasonably be lowered in light of her reliance on the device’s readings.

    Even if states do not directly limit drunk drivers’ ability to start the engine, such a measure would serve as an ever-present reminder for those who think that, despite having a few drinks socially, they are nevertheless fit to drive.

    Finally, as stated outright, this regulatory scheme would also permit manufacturers to go above the (new) FMVSS by placing IIDs in their cars. While a permissive scheme may itself be a relative half-measure in terms of inducing IID uptake, it will certainly bypass one of the main barriers to IID usage: public awareness of their existence.[97] Additionally, there is reason to think that auto manufacturers will avail themselves of that option in order to tout their safety records in advertising.[98]

    Therefore, this measure should be endorsed.

    ii. Federally Mandate IIDs in Automobiles

    The Secretary of Transportation could take a more direct, active, and dramatically effective role in combatting drunk driving by mandating IIDs in all cars. The statistics have been listed earlier—and will be reused later—but are worth repeating: 59,554 lives saved, 1.25 million nonfatal injuries prevented, and $260 billion saved in the process.[99]

    There is also precedent for mandating the technology’s usage within the current FMVSS regime. For example, the federal government imposes requirements on “the location, identification, and illumination of motor vehicle controls and displays . . . to ensure the accessibility and visibility of motor vehicle controls . . . in order to reduce the safety hazards caused by the diversion of the driver’s attention[.]”[100] Other FMVSS geared at crash avoidance require specific systems on window defrosting,[101] windshield wipers,[102] headlights,[103] tires,[104] and mirrors.[105] Most relevantly, FMVSS No. 114 mandates mechanical protections on the ignition system itself as well as the transmission to protect against theft and crashes resulting from unauthorized driving.[106] Policy precedent therefore reaches not only federal mandatory safety features in motor vehicles, but even the engine ignition process itself. IIDs should be no different.

    Though such a course of action is unlikely to happen immediately—if only because of a potential shortage of available hardware currently available—the federal government could nevertheless set a reasonable timeline to first make the device’s use optional and/or mandatory.[107] This solution would also require state compliance in regularly inspecting the device to ensure its viability. Given that all 50 states already utilize IIDs in their penal code in some fashion,[108] the states are unlikely to threaten the implementation of mandated IID use.

    Finally, critics could take legal issue with this solution. States choosing to enact such a provision are undoubtedly within their rights to do so as sovereign entities; however, should Congress choose to do so, some may question whether Congress has the right to delegate that authority to the Secretary of Transportation at all. Congress’ interstate commerce powers, however, likely provide sufficient legal foundation to enact such a law.

    The Interstate Commerce Clause of the Constitution affords Congress the right “[t]o regulate Commerce . . . among the several States[.]”[109] Under United States v. Lopez,[110] the Supreme Court

    identified three broad categories of activity that Congress may regulate under its commerce power. First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.[111]

    The first category, that Congress can regulate the use of the channels of interstate commerce, unquestionably supports the permissibility of a mandatory IID law. As far back as 1913, the Court held that commerce

    consists of intercourse and traffic between their citizens, and includes the transportation of persons and property. There may be, therefore, a movement of persons as well as of property; that is, a person may move or be moved in interstate commerce.[112]

    The Court has repeatedly upheld this principle,[113] and has thus recognized “the authority of Congress to keep the channels of interstate commerce free from immoral and injurious uses.”[114]

    Given the risk to oneself and others on the road, what could be a more “injurious” use of our interstate[115] channels than drunk driving?[116] Therefore, any such laws should easily clear Commerce Clause challenges.[117] What is more, when an analogous FMVSS was under scrutiny by the Supreme Court, the authorizing act was presumed to be constitutional[118]: the Court only considered whether a particular regulation[119] was reasonable.[120]

    There is also significant reason to believe that mandating its use will be effective. As stated earlier, while not perfect, IIDs have proven to prevent up to 67 percent of drunk driving for those driving automobiles with the IIDs installed.[121] There’s no reason it cannot therefore stop would-be first time offenders, too! With broader laws to mandate its use, there is certainly hope that drunk driving will approach eradication entirely.[122] What’s more, this solution goes a long way to addressing one of the main barriers to adoption named above: familiarity with the technology.[123]

    Therefore, this solution should also be endorsed and adopted by the federal government.

    iii. Leverage States to Incentivize Adoption

    Short of federally mandating IID installation and putting the onus on the manufacturer, Congress can compel states to incentivize the device’s after-market adoption. Specifically, one solution calls for conditioning federal aid on states’ imposing taxes on those who choose not to install a device—or tax breaks for those who install one—and/or on advertising campaigns sponsoring the device.

    Federalism prevents the federal government from dictating exactly what a state can and cannot do, but there are other tools in the federal toolbox. One of the strongest has already been mentioned and is used regularly relating to automobile safety—conditional aid. Conditional aid need only satisfy three substantive criteria:

    The first of these limitations is . . . the exercise of the spending power must be in pursuit of “the general welfare.” In considering whether a particular expenditure is intended to serve general public purposes, courts should defer substantially to the judgment of Congress. Second, we have required that, if Congress desires to condition the States’ receipt of federal funds, it “must do so unambiguously . . . enabl[ing] the States to exercise their choice knowingly, cognizant of the consequences of their participation.” Third, . . . conditions on federal grants might be illegitimate if they are unrelated “to the federal interest in particular national projects or programs.”

    Beyond these three substantive conditions, the Supreme Court has incorporated a fourth criterion: The federal government must not provide the states with a false choice that moves beyond condition and into compulsion.[125] Only once has a conditional federal aid grant been found to overreach the Spending Power.[126] In National Federation of Independent Business v. Sebelius (NFIB), which explicated this additional criterion in depth,[127] the Court struck down provisions of the Affordable Care Act that gave states a choice between expanding Medicaid coverage or losing all federal Medicaid funds.[128] Though the provision may have met Dole’s three criteria, the choice presented to states was nevertheless not a fair one. “[T]he financial ‘inducement’ Congress ha[d] chosen [was] much more than ‘relatively mild encouragement’—it [was] a gun to the head.”[129]

    These four threshold concerns, however, are unlikely to be implicated by conditioning further funding on IIDs, based on legal and statutory precedent. As an initial note, if the condition is crafted properly, NFIB will be inapposite. More relevantly, the case that spelled out the first three criteria, South Dakota v. Dole, implicated the aforementioned National Minimum Drinking Age Act,[130] which withheld five percent of federal highway funding from states that did not maintain a minimum legal drinking age of 21. The Court upheld the law, finding the five percent figure non-coercive. A judge could not ask for a more on-point precedent. Enacting a law that mandates IID installation—not even IID use—using analogous methods, and to accomplish the same purposes, would likely also pass the test. Thus, the policy objective of reducing drunk driving could be “attained through the use of the spending power and the conditional grant of federal funds.”[131]

    Additionally, this solution has statutory precedent. Interlocks have been part of conditional highway funds for nearly two decades. In 1998, federal aid for highways became conditional on ignition interlocks as punitive measures for DUI convictions. Currently, state highway aid can be conditioned on ignition interlocks in two ways. First, states without a “repeat intoxicated driver law” are subject to losing two and a half percent of highway aid.[132] Such a law can be satisfied by mandating ignition interlock systems for those convicted of DUI, but, importantly, does not actually need to: states can meet this requirement with non-interlock, alcohol-driven laws.[133] Second, separate grants are available “to each State that adopts and is enforcing a mandatory alcohol-ignition interlock law for all individuals convicted of driving under the influence of alcohol or of driving while intoxicated.”[134] Therefore, the solution of conditioning funding on IID installation more broadly has statutory precedent.

    There are significant advantages to this strategy. First and foremost, many hands make light work. By bringing state governments into the fold, Congress increases the number of people and institutions pushing for this change, which, theoretically, should increase consumer uptake. What is more, state encouragement undermines any claims of an overreaching federal administrative state. This solution also has practical appeal, because the states are best positioned to implement an IID program. Each state already maintains a database of cars. The registration of each car could, and in certain cases already does, also track which cars have IIDs installed, and therefore whether the state qualifies for that aid. Finally, there is the idea that if the program does not take, no harm, no foul. If a state is unsuccessful in getting its citizens to adopt the technology, then the federal government should not dole out the money appropriated, thereby reducing wasted expenditures.

    Having seen this strategy effectively undertaken for drunk driving and other automobile safety measures, there is little reason to believe that this methodology cannot be expanded to further the implementation of IIDs.

     

    B. State-Specific Strategies to Induce IID Uptake

    States have a large role to play in the installation and usage of IIDs across the country. As noted above, arguably the largest role states play is the sanctions placed on drivers convicted of DUI.[135] Given the anemic statistics regarding enforcement—“only 20% of eligible offenders were actually enrolled in a program requiring [IID] installation”[136]—states undoubtedly have a lot of work to do to improve IID usage broadly.

    But even without the federal government, states can utilize a number of strategies to incentivize voluntary IID uptake in their respective constituencies. States can certainly implement some of the federal-state strategies contemplated below, namely purchasing and distributing the devices themselves or offering tax incentives to implement the program.[137] But states also have another weapon at their disposal: regulatory control over automobile insurance. Thirty-four states as well as the District of Columbia mandate a discount for safe-driving classes.[138] Additionally, states can mandate insurance companies consider the completion of such a course when calculating drivers’ insurance premiums, just as Michigan does.[139]

    States have the ability to institute such proposals because they regulate their own insurance markets. As such, there is absolutely no reason that states could not enact similar laws mandating insurance deductions for drivers who purchase or lease an IID. If such a law deducted a similar percentage as its insurance analogue, the savings on insurance payments could quite quickly pay for itself![140] What’s more, many of the aforementioned defensive driving classes come with the incentive of a driver’s license points deduction.[141] Such a strategy could definitely incentivize further uptake at no direct monetary cost to the state and therefore should be undertaken.

     

    C. Dual State and Federal Strategies

    There are two strategies that either the state or federal government could enact: government purchasing and direct distribution, or tax deductions for consumer purchasing. This subsection explains why, on the merits, the latter should be adopted and the former rejected.

    i. Government Purchasing and Distribution of IIDs

    In the most direct of the available possibilities, a government could purchase the devices for each individual, distribute them to every registered car and pay for their installation and monitoring. The legislature could appropriate the estimated funds and the executive, through an administrative agency, negotiate with the private sector to purchase millions of these devices and manage the distribution process by monitoring who has received it and or had the device installed.

    Doing so certainly has its benefits by removing all barriers to the consumer, who would need nothing more than proof of title to have a government official coordinate all of his or her needs. Theoretically, this should significantly improve uptake: the individual need not lay out a dime and the work will be mostly done for her, leading to further adoption and therefore a greater benefit extracted by society. But not all that glitters is gold. The administrability of such a program would require significant coordination. In particular, if the federal government were to take on this responsibility, it could accomplish this task by asking individuals to submit their personal identities—including their names, addresses, and car registrations—which may be politically unpalatable. Otherwise, it would need to work with local authorities without any enforcement mechanism should they choose not to cooperate. As such, government purchasing and distribution is rarely, if ever, used for purely individualized benefits, or benefits that can be parceled out on an individual level.

    While IID uptake would likely benefit from individualized purchasing and distribution, the prospect of a government agency running the entire process may present huge supply chain and database problems. Thus, government purchase and distribution, while well-intentioned, should be rejected.

    ii. Tax Deductions

    Alternatively, the federal or state government may consider a tax deduction for the cost of the IID and or its installation. Instead of simply doling out the device and hiring trained technicians to oversee installation and maintenance, the government can create a tax deduction for the devices and their associated costs. Consumers would pay for the device and maintenance directly, but would obtain a deduction to offset these costs. Doing so shifts the burden of uptake to individuals, but imposes fewer logistical demands on federal agencies.

    This strategy can also be deployed for the installation and maintenance—the government can pick and choose. Undoubtedly, the decision to include ancillary costs in deduction strategies ought be determined by estimates of their inclusion’s impact on IID uptake, which in turn affects the value—as measured by cost-benefit analysis—of the incentive itself. Importantly, even if deducting all of the costs associated with IIDs maximizes their uptake, maximizing the cost-benefit may involve deducting less than the full costs; for example, if deducting just the device and installation costs will achieve ninety-nine percent uptake, this less-than-full deduction may maximize its cost-benefit.

    Deductions can largely be categorized in two broad methods, each with their own pros and cons: deductions at cost or capped deductions. Both of these strategies are viable government strategies for IID uptake.

    a) Deductions at Cost

    The government can offer a variable deduction for the driver’s costs. This means that the individual can deduct the total amount paid for the device, regardless of what the individual pays.

    Providing deductions at cost has tremendous potential. By ensuring the entire cost is covered, an at-cost deduction significantly diminishes barriers to adoption, especially among the poor, because there is zero net cost. More, the consumer will have few, if any, barriers to purchasing a top-of-the-line product, which may be more precise, incur fewer maintenance costs, or enjoy a longer life span. Therefore, indirectly, deductions at cost produce incentive for industry to put forward a better product.

    Admittedly, this plan does have a hidden cost—by incentivizing purchases of the very best products, it disincentivizes cost-effective purchasing. If the government is paying for the device so long as it performs the basic task of an IID, companies may want to throw in added features that truly are not worth the added cost, knowing that the consumers will gravitate towards expensive machines with the extra bells and whistles because it costs them nothing. The same is true on the flipside; manufacturers will not be incentivized to minimize their own manufacturing and production costs. Because consumers do not, strictly speaking, consider the societal effect of purchasing the more expensive IID, they may go with the most expensive one without thinking twice, conflating price with quality. This may ultimately raise the total amount of the tax expenditure for funding IID purchases beyond what is cost-justified.

    Though offering a flexible tax deduction for all IID costs may lead to some wasted spending, its promise to maximize uptake outweighs extra spending. As such, its worthiness should be evaluated with more granular information on uptake. Depending on the uptake evaluation, this strategy should be deployed.

    b) Capped Deduction

    The other type of deduction is a capped deduction, meaning the deduction—be it for the device, the installation or the recurring maintenance costs—is capped. (There may be deduction caps on each of these three facets.) As such, individuals may only be granted a deduction up to that cap for the appropriate IID expense. If they pay any less, that difference is lost; any extra, and the additional expense cannot be written off as a deduction.

    Like an at-cost deduction, the amount of the cap will have a distinct impact on consumer uptake. But—also like an at-cost deduction—there are some secondary factors to consider if a government were to implement a capped deduction.

    The market will respond to a cap. Manufacturers will likely do what they can to maximize their profitability, which suggests that they will both sell the product or perform the service at the cost of the cap and minimize their own costs. As such, capping costs may well impose a limit on innovation. For example, consider a cap of $100 to purchase an IID. If the cost of production is $75, and a company must invest $24 in overhead and advertising to sell its product, it takes a 1% margin, or $1 profit per IID. It is the rare for-profit company that will use such a meager gain to expand market share by investing in R&D, whose success is not guaranteed, to improve the quality and or features of the product, as opposed to just researching further cost-cutting and thereby maximizing profits per unit.

    What is more, this innovation may come at the cost of additional features that could be genuinely beneficial. For example, consider the growing number of states and municipalities that have legalized marijuana,[142] each imposing a THC-blood ratio limit for driving. (THC is the principal psychoactive component of the cannabis plant.) Imagine a new technology that enables IIDs to test THC and BAC levels at the same time. Notably, marijuana consumption does not have alcohol’s easily identifiable numerical benchmarks,[143] such as proof and the rule of thumb that one beer is roughly equivalent to one shot is roughly equivalent to one glass of wine.[144] Thus, if such an innovative technology were to be invented by a profit-minded inventor, its installation  would provide a huge windfall for everyone else on the roads. If this feature—or even one that uses blood to measure THC but could be incorporated into the device—costs more than the cap, there is reason to think that many would not be willing to spend the extra money to add the feature.

    Undoubtedly, much more investigation must be done regarding the device’s costs, probability of uptake, and subsequent money saved (via the value of life and of quality of life) to ensure uptake is financially reasonable for individuals and states alike. However, despite potential drawbacks, capped tax deductions are also a viable and thus recommended solution to induce the adoption of IIDs.

     

    V. Additional Considerations

    There are additional considerations when asking whether the government should encourage or mandate—and, if the former, by a taxing or non-taxing strategy—IIDs. Most notably, are there other constitutional issues at play? As with the above, these solutions necessarily bear on the insurance and automobile manufacturing industries; they are economic interventions that would require the market to adjust accordingly. Therefore, it is important to at least speculate how these two necessary industries would respond to either such strategy, particularly through legal processes.

     

    A. Constitutional Freedom of Movement and Due Process Concerns

    The Fourteenth Amendment to the Constitution provides that a State shall not “deprive any person of life, liberty, or property, without due process of law.”[145] Certainly, restricting the right to drive based on intoxication is not a deprivation of life. Thus, we need to ask whether such a restriction impinges one’s liberty or property interests.

    i. Liberty

    In 1958, Justice William O. Douglas was quite clear in declaring, “The right to travel is a part of the ‘liberty’ of which the citizen cannot be deprived without the due process of law under the Fifth Amendment.”[146] Justice John Paul Stevens later reaffirmed this idea: “The word ‘travel’ is not found in the text of the Constitution. Yet the ‘constitutional right to travel from one State to another’ is firmly embedded in our jurisprudence.”[147] Indeed, beyond Supreme Court jurisprudence, American citizens’ freedom of movement dates back to Article Four of the Articles of Confederation: “[T]he people of each State shall have free ingress and regress to and from any other state . . . .”[148] One of the three pillars of the “right to travel . . . protects the right of a citizen of one State to enter and to leave another State[.]”[149]

    While the historical underpinnings may suggest the right to travel is coterminous with the right to travel by one’s preferred means, as the automobile’s prevalence grew in the 20th century, the “constitutional right to travel became increasingly interpreted not as a right to locomotion by the means of one’s choice, but as a mere right to emigrate between states.”[150]

    The functional test for whether a statute infringes on that right is if the law “directly impair[s] the exercise of the right to free interstate movement”[151]; such direct impairment is not present in mandating breathalyzers or IIDs, let alone financially incentivizing them. Analogous cases provide meaningful signposts. For example, in Edwards v. California,[152] the Court struck down a law that would charge “[e]very person, firm or corporation or officer or agent thereof that brings or assists in bringing into the State any indigent person who is not a resident of the State, knowing him to be an indigent person” with a misdemeanor.[153] The Court reasoned that the statute in question evinced the “express purpose and inevitable effect [of] prohibit[ing] the transportation of indigent persons across the California border.”[154] Twenty-five years later, the Court overruled a dismissal of an indictment against private citizens who conspired to restrict another individual from traveling.[155] Specifically, the Court held that Congress had indeed intended the Fourteenth Amendment’s Equal Protection rights to apply to citizens deprived of the use of public facilities—in this case, public roads and bridges.[156]

    Legislating mandatory breathalyzers or IIDs does not at all directly impair one’s right to move among the fifty states. Rather, it only affects the method by which the individual ventures within and without state lines. If it were otherwise, every federal auto safety law would be unconstitutional. So while the right to travel is present in our constitutional ethos as well as our constitutional jurisprudence, the right to drive oneself in travel is most certainly not, meaning one cannot claim to have been unconstitutionally deprived of it.

    ii. Property

    Despite the fact that the driving is not itself a right, it is indeed a significant and weighty benefit.

    The procedural component of the Due Process Clause does not protect everything that might be described as a “benefit”: “To have a property interest in a benefit, a person clearly must have more than an abstract need or desire” and “more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.”[157]

    If entitlements “‘are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law,’”[158] state regimes curtailing driving are more than enough to demonstrate that individuals are not entitled to drive. Rather, individuals must demonstrate sufficient competency to get behind the wheel, via both on-road and written exams. More, when licensed individuals take actions that jeopardize public safety, they can have their licenses revoked,[159] and may even be banned for life from driving.[160] Because individuals cannot claim to have “more than an abstract need or desire for [the right to drive, nor] more than a unilateral expectation of it,”[161] they cannot assert a property right, let alone claim it was deprived without due process.

    Without either a liberty or property interest, the government need not show “a compelling governmental interest” to substantiate such a law.[162] Instead, as was the case in prior FMVSS litigation, the regulation need only be “rational, based on consideration of the relevant factors and within the scope of the authority delegated to the agency by the statute.”[163] (If mandated explicitly by statute, the same rational basis test would apply.) The ease with which the government can clear this bar cannot be overstated:

    The rational basis test in its traditional form is extremely deferential to any proffered governmental interest. . . . Under rational basis review, courts are constrained to accept a legislature’s generalizations even in the presence of an imperfect fit between means and ends. Rational basis review “is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.” Moreover, the party challenging the legislation bears the burden of negating every conceivable rational basis for the classification, regardless of whether or not such a rationale—or any at all—was actually relied upon by the relevant authority.[164]

    Therefore, the government should be able to easily meet its burden of demonstrating a law aimed at stopping drunk driving is rationally related to preventing drunks from driving.

     

    B. Drunk Drivers as a Suspect Class?

    An enterprising violator may claim that the law discriminates against those suffering from alcoholism. When a plaintiff states a claim for an equal protection violation, the Court first asks whether the law discriminates against a “suspect” class of individuals,[165] or a “discrete and insular minorit[y]” group,[166] triggering strict scrutiny of the law in question.[167] Alcoholics can certainly face stigma and stereotyping, but they present a different legal issue than the groups that traditionally trigger the strongest form of judicial review. “Such groups are typically associated with immutable physical characteristics (i.e., races or ethnicities) political powerlessness, a history of purposeful discrimination, or a general subjugation to stigma and stereotype.”[168]

    The best case to demonstrate that discrimination against alcoholics would fall under rational basis review rather than strict scrutiny is New York City Transit Authority v. Beazer.[169] In Beazer, the Court decided whether the Transit Authority’s policy to fire or restrict the hiring of all individuals using narcotic drugs (particularly methadone) taken to curb heroin addiction violated the Equal Protection Clause. Six Justices voted to uphold the policy, concluding that the policy was rational and that there was no invidious motivation behind the Transit Authority’s position.[170]

    The case against strict scrutiny for alcoholics is even stronger: in Beazer, no one disputed “that substantial numbers of methadone users [were] capable of performing many of the jobs at TA,” without jeopardizing public safety, and yet the employer was allowed to keep the per se policy barring users from employment.[171] In this hypothetical challenge, however, anyone getting behind the wheel while sufficiently inebriated by definition creates a risk to the entire population, making a blanket rule all the more appealing. Therefore, it is exceedingly unlikely that courts would view such a law as discriminatory against alcoholics, and thus we would revert to the rational basis test.

    An alcoholic claimant may also turn to an alternative test: “rational basis with bite.”[172] This test emanates primarily from two cases: City of Cleburne v. Cleburne Living Ctr., Inc.,[173] and Department of Agriculture v. Moreno.[174] The former struck down an ordinance requiring the mentally retarded to acquire special permit for a group home based on irrational prejudice, and the latter struck down a provision aimed at prevent participation in the program by “hippies” on similar grounds.

    “Hippies” and the mentally retarded may not be discrete and insular minorities to be afforded strict scrutiny under Bowen v. Gilliard,[175] but they are nevertheless targetable victims of discrimination. For that reason, it makes sense that, in the words of Justice Sandra Day O’Connor, “[w]hen a law exhibits such a desire to harm a politically unpopular group, [the Court has] applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause.”[176] Said another way, “[r]ational basis with bite has been applied primarily, if not exclusively, in cases where the classification at issue inappropriately discriminated against a particular minority and the government’s asserted interests had no rational relationship to that discrimination.”[177]

    No one disputes that alcoholics have been discriminated against historically,[178] but rational basis with bite is likely still inappropriate because of the prevalence of alcohol-related problems. For example, a 2007 government study found that “[m]ore than 30 percent of American adults have abused alcohol or suffered from alcoholism at some point in their lives, and few have received treatment . . . .”[179] Such pervasiveness undermines the argument that it is a minority in the first place. Second, even if the law is deemed discriminatory, a hallmark of rational basis with bite is the law’s disconnectedness to its discriminated class. Here, however, such a law is directly related to the putative class, aiming not to look down on alcoholics, but rather to prevent the victims of alcoholism from harming others. If anything, an IID program stands to benefit alcoholics more by ensuring their disorder cannot be destructive—morally, legally, or financially—behind the wheel. Therefore, under an Equal Protection challenge against alcoholics, courts would still probably revert back to a rational basis test.

    IID legislation would likely satisfy the standard for rational basis review under the Equal Protection Clause, as with the Due Process Clause. The law, aimed at preventing deaths caused by intoxicated drivers, prevents the intoxicated from getting behind a wheel, which enables them to cause death in the first place. Put simply, nothing could be more rationally related. What’s more, the standard is sufficiently deferential that even a tenuous connection would work. In the words of Professor Cass Sunstein, “rationality review under the equal protection clause, as elsewhere, is highly deferential and almost always results in the validation of statutory classifications.”[180] Given the overwhelming evidence mentioned above of drunk driving’s death toll and financial detriment and the fact that drunk driver IID laws directly aim to address these heinous realities, the legislation very likely clears that low standard.

     

    C. Fourth Amendment Considerations

    The Fourth Amendment provides:

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.[181]

    Is there a reasonable argument that any such technology “searches” or “seizes” one’s breath in such a way that infringes on the driver’s Fourth Amendment protections? It is very unlikely for multiple reasons.

    First, the state has not encroached or mandated any action. Instead, the individual has chosen to avail himself of the privilege of driving.[182] In this way, it is only a private actor—the manufacturer—who is dictating the search. However:

    The Fourth Amendment gives protection against unlawful searches and seizures, and, as shown in the previous cases, its protection applies to governmental action. Its origin and history clearly show that it was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies.[183]

    Thus, the Fourth Amendment concerns would not be implicated, let alone violated.

    Second, even, arguendo, if the Fourth Amendment applies, the driver has no possessory interest in his or her breath. In Birchfield v. North Dakota,[184] a 2016 case adjudicating the constitutionality warrantless breath and blood tests incident to arrests for drunk driving, Justice Samuel Alito, joined by five of his colleagues, stated: “Humans have never been known to assert a possessory interest in or any emotional attachment to any of the air in their lungs. The air that humans exhale is not part of their bodies. Exhalation is a natural process—indeed, one that is necessary for life.”[185] Without possessory interest in the air, the government cannot by definition unlawfully search or seize it.

    Finally, putting all of these considerations aside, “[t]he touchstone of the Fourth Amendment is reasonableness.”[186] If we are simply asked whether it is reasonable to ask all motorists to take one breath before they put their car on the road so as to ensure all drivers’ safety—theirs included, such a minimal intrusion for such a maximal prevention of lost life appears reasonable on its face.

     

    D. Federal Preemption for Mandatory IIDs

    In the event that the federal government opts to enact a strategy not based on funding—i.e. mandating breathalyzers in cars or IIDs usage before driving—the question of federal preemption is worth discussing. Federal law preempts state law where the federal law explicitly states its intent to do so,[187] or where that intent is implied. Even without any draft language for either solution, there are a few firm rules we can flesh out.

    There is an assumption against a federal statute’s preemption of state statutes, and particularly so in the area of police powers[188] or areas that are typically left to state regulation.[189] But “when Congress has made its intent known through explicit statutory language, the courts’ task is an easy one.”[190] So long as “the text of a pre-emption clause is [not] susceptible of more than one plausible reading,”[191] it is likely that a law or regulation mandating the installation and usage of IIDs that includes language explicitly preempting state law will be upheld.

    That brings us to implied preemption. Implied preemption can be found in two ways: “where compliance with both federal and state regulations is a physical impossibility”[192]—that is, conflict preemption—or where “[t]he scheme of federal regulation may be so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it”[193]—that is, field preemption.

    The degree of implied preemption (or not) over a hypothetical law or regulation is difficult to ascertain: the devil will almost surely be in the details. Even if the legislation or regulation does not include an explicit passage regarding preemption, it is likely impossible to abide by both the federal law that mandates IIDs usage and a state law that exempts usage. But “Congress’s purpose is the ‘ultimate touchstone’ of any preemption analysis.”[194] Enacting a law to ensure these devices are installed in all cars has a fairly self-evident purpose; state schemes designed to undermine such a law will likely be met with a discerning judicial eye.

     

    E. The Auto Insurance Industry’s Potential Response to IID Legislation

    In the United States, all but one state mandate automotive insurance covering liability for injuries and damages.[195] Only New Hampshire, the “Live Free or Die” state,[196] does not require it, but it does require that drivers demonstrate their ability to pay for the harm caused if an accident occurs.[197] Thus, save for a select few New Hampshirites,[198] having legislation increasing IID usage will undoubtedly affect risk pools and payout needs. So how is the automobile insurance industry likely to react?

    In theory, insurers will support IID legislation. In keeping with their support of previous legislation that drives down drunk driving,[199] the auto insurance lobby stands to come out financially neutral if not positive: insurers do not bear the cost of technology, but benefit from decreased payouts due to the technology’s use. If insurers adjust premiums to match this decreased cost proportionately, they are no better off; but if they do so to a lesser degree than that by which costs fall, their margins should increase. It is no wonder that other anti-drunk driving measures have earned the support of insurance companies.

     

    F. The Auto Manufacturing Industry’s Potential Response to IID Legislation

    Should any of the above proposals pass, automobile manufacturers are likely to rejoice, recognizing a new source of profitability. First, they may do nothing: Their business is the automobile and not the aftermarket addition. But capitalism suggests this may not be true. If IIDs are highlighted on the national stage, manufacturers may want to break into the business in one way, shape, or form. What is more, because they are putting the car together, there is reason to believe they would be able to achieve the greatest cost savings by installing it during design and production as opposed to after the vehicle has already been built. As such, they stand to gain against their after-market competitors.

    There is also an economy of scale argument. In addition to relatively centralized design and production facilities, auto companies can access business synergies through their distribution systems. Car dealerships commonly have a service department, or at least an affiliated garage. In addition to regular mechanic services that the dealership could—or already does—provide, the dealer would be able to service the car’s IID.[200] Thus, the dealership becomes a one-stop-shop for the consumer, further incentivizing the manufacturer to keep everything internal.

    Finally, manufacturers may choose to advertise the IID’s availability, whether as an a la carte option or a standard feature. Automobile advertisements often tout their safety credentials and their efforts to improve safety.[201] Additionally, auto manufacturers whose products take advantage of tax breaks, most notably the solar power tax break,[202] also tout their favorable tax treatment as a way to entice potential consumers.[203] Car companies may even decide that it is financially worthwhile to include the device as a standard feature so as to highlight it in their advertisements and capture increased market share.

    Overall, if IIDs are brought to the forefront of automobile safety legislation, manufacturers may respond by making this either an add-on available a la carte or even standard in new cars, thereby promoting the adoption of IIDs and the overall goal of automobile safety.

     

    VII. Conclusion

    According to the Centers for Disease Control and Prevention, “[e]very day, 28 people in the United States die in motor vehicle crashes that involve an alcohol-impaired driver. This amounts to one death every 53 minutes.”[204] While self-driving cars may eventually eliminate the possibility of human driving error, we need to do more to bridge the gap to autonomous vehicles. That is where ignition interlocks come in. These devices prohibit a car from starting unless the driver passes what amounts to an in-car breathalyzer exam. IIDs are—and have been—used in criminal law for decades, as states either mandate or permit drivers convicted of driving under the influence to install them as a precaution against recidivism. While IIDs have proved effective in the fight against repeat offenses, both federal and state governments ought be deploying this technology to prevent someone’s first offense. Doing so, studies estimate, would save thousands of lives and billions of dollars.

    This article has outlined a number of potential strategies to motivate people to install IIDs outside of just altruism. Having explicated a diverse set of potential solutions, the article offers recommendations on each. However the federal government or individual states choose to proceed, each ought to seriously consider every acceptable proposal and implement it as soon as they can to protect their constituents. Lives quite literally hang in the balance with every passing moment.

     


    [*] J.D. 2017, Harvard Law School; B.S. 2013, Massachusetts Institute of Technology.

    [1] Self-driving car technology appears to be on the precipice of a breakthrough in popularity, but legal issues unquestionably remain to be hashed out regarding automobile insurance and liability, see generally, e.g., Sophia H. Duffy & Jamie Patrick Hopkins, Sit, Stay, Drive: The Future of Autonomous Car Liability, 16 SMU Sci. & Tech. L. Rev. 453 (2013); Dorothy J. Glancy, Autonomous and Automated and Connected Cars-Oh My! First Generation Autonomous Cars in the Legal Ecosystem, 16 Minn. J.L. Sci. & Tech. 619 (2015), as well as questions of critical mass need, see Peter Suciu, The Road Ahead for Self-Driving Cars, Tech News World (Mar. 19, 2015), http://www.technewsworld.com/story/81840.html [https://perma.cc/2CBL-NSPH], as well as environmental challenges, see Alex Davies, So, Nobody Knows How Much Self-Driving Cars Will Pollute, Wired (Nov. 18, 2016), https://www.wired.com/2016/11/nobody-knows-much-self-driving-cars-will-pollute/ [https://perma.cc/33JC-DC6K]. However, these important questions are outside the limited scope of this article.

    [2] See Shelley Fisher Fishkin, Lighting Out For the Territory: Reflections on Mark Twain and American Culture 134 (1996).

    [3] See Impaired Driving: Get the Facts, Ctrs. for Disease Control & Prevention, U.S. Dep’t of Health & Human Servs., http://www.cdc.gov/motorvehiclesafety/impaired_driving/impaired-drv_factsheet.html [https://perma.cc/9JTE-NWQQ].

    [4] Id.

    [5] Compare id. with Kenneth D. Kochanek et al., Deaths: Final Data for 2014, 65 Nat’l Vital

    Stat. Reports 1, 44 tbl. 10 (2016). Admittedly, ensuring drivers do not get behind the wheel when drunk would not solve all alcohol-related motor vehicle deaths: “An analysis of NHTSA’s Fatality Analysis Reporting System (FARS) estimates that if driver BACs were no greater than 0.08 percent, 7,082 of the 10,228 alcohol-impaired road user fatalities occurring in 2010 would have been prevented.” Abdullatif K. Zaouk et al., Driver Alcohol Detection System for Safety (DADSS) – A Status Update 2, (24th Int’l Tech. Conference on the Enhanced Safety of Vehicles (ESV) Working Paper No. 15-0276) (2015), https://www-esv.nhtsa.dot.gov/proceedings/24/files/24ESV-000276.PDF [https://perma.cc/V43E-V48M] [hereinafter NHTSA Update]. However, it would eliminate seventy percent of them, which would be a titanic improvement.

    [6] Id. at 1.

    [7] See Jonathan Zhou, Steering Wheels That Test Blood-Alcohol Are Coming, Epoch Times (June 9, 2015), http://www.theepochtimes.com/n3/1385916-steering-wheels-that-test-blood-alcohol-are-coming/ [https://perma.cc/Q9GZ-W65Q].

    [8] Driver Alcohol Detection System for Safety (DADSS), http://www.dadss.org/ [https://perma.cc/ZCX2-K5CF].

    [9] Id.

    [10] Sarah Knapton, Alcohol-detecting steering wheels could stop drink driving, Telegraph (June 12, 2015), http://www.telegraph.co.uk/news/uknews/road-and-rail-transport/11671196/Alcohol-detecting-steering-wheels-could-stop-drink-driving.html [https://perma.cc/NJ7L-F5YY].

    [11] My sincere thanks to Andrew Sullivan for masterfully compiling and explaining the science of Near Infrared Spectroscopy as well as its applicability to IIDs. Andrew Sullivan, Note, Ending Drunk Driving with A Flash of Light, 21 Rich. J.L. & Tech. 15, 33–51 (2015).

    [12] See infra notes 15, 16 and accompanying text.

    [13] See Ala. Code § 32-5A-191 (2017); Alaska Stat. Ann. § 12.55.102 1)West 2017); Ariz. Rev. Stat. Ann. § 28-1401 (2017); Ark. Code Ann. § 5-65-118 (West 2017); Cal. Veh. Code § 23700 (West 2017); Colo. Rev. Stat. Ann. § 42-2-132.5 (West 2017); Conn. Gen. Stat. Ann. § 14-227a (West 2017); Del. Code Ann. tit. 21 § 4177C (West 2017); D.C. Code Ann. § 50-2201.05a (West 2017); Fla. Stat. Ann. § 322.2715 (West 2017); Ga. Code Ann. § 42-8-111 (West 2017); Haw. Rev. Stat. Ann. § 291E-61 (West 2017); Idaho Code Ann. § 18-8005 (West 2017); Ill. Comp. Stat. Ann. 730 § 5/5-6-3.1 (West 2017); Ind. Code Ann. 9-30-5-16 (West 2017); Iowa Code Ann. § 321J.17 (West 2017); Kan. Stat. Ann. 8-1015 (West 2017); Ky. Rev. Stat. Ann. § 189A.340 (West 2017); La. Stat. Ann. 32:378.2 (2017); Me. Rev. Stat. tit. 29-A § 2508 (2017); Md. Code Ann., Transp. § 27-107.1 (West 2017); Mass. Gen. Laws Ann. ch. 90 § 24 (West 2017); Mich. Comp. Laws Ann. 257.319 (West 2017); Minn. Stat. Ann. § 169A.55 (West 2017); Miss. Code. Ann. § 63-11-31 (West 2017); Mo. Ann. Stat. 302.440 (West 2017); Mont. Code. Ann. 61-8-442 (West 2017); Neb. Rev. Stat. Ann. § 60-6,211.05 (West 2017); Nev. Rev. Stat. Ann. §§ 483.490, 484C.460 (West 2017); N.H. Rev. Stat. Ann. § 265-A:36 (2017); N.J. Stat. Ann. 39:4-50.17 (West 2017); N.M. Stat. Ann. § 66-5-33.1 (West 2017); N.Y. Veh. & Traf. § 1193 (McKinney 2017); N.C. Gen. Stat. Ann. § 20-179.3 (West 2017); N.D. Cent. Code Ann. 39-06.1-11 (West 2017); Ohio Rev. Code Ann. § 4511.19 (West 2017); Okla. Stat. Ann. tit. 57 § 612 (West 2017); Or. Rev. Stat. Ann. § 813.602 (West 2017); 75 Pa. Stat. and Cons. Stat. Ann. § 3805 (West 2017); R.I. Gen. Laws Ann. § 31-27-2.8 (West 2017); S.C. Code. Ann. § 56-5-2941 (2017); S.D. Codified Laws §§ 1-11-20, 25 (2017); Tenn. Code Ann. §§ 55-10-409, 417 (West 2017; Tex. Transp. Code Ann. § 521.246 (West 2017); Utah Code Ann. § 41-6a-518 (West 2017); Vt. Stat. Ann. tit. 23 § 1213 (West 2017); Va. Code Ann. § 18.2-270.1 (West 2017); Wash. Rev. Code Ann. 10.21.055 (West 2017); W. Va. Code Ann. § 17C-5A-3a (West 2017); Wis. Stat. Ann. 343.13 (West 2017); Wyo. Stat. Ann. § 31-7-402 (West 2017). See also Emma E. McGinty et al., Ignition Interlock Laws: Effects on Fatal Motor Vehicle Crashes, 1982–2013, 52 Am. J. Preventive Med. 417, 418 (2017); Alcohol Impaired Driving, Governors Highway Safety Ass’n, http://www.ghsa.org/state-laws/issues/Alcohol-Impaired-Driving [https://perma.cc/5UZ8-L96K].

    [14] See Amy Maas, Six beer habit earns first interlock, The Press (Dec. 29, 2012),

    http://www.stuff.co.nz/the-press/news/8129601/Six-beer-habit-earns-first-interlock [https://perma.cc/K2YX-5V28] (New Zealand); Knapton, supra note 10 (United Kingdom).

    [15] NHTSA Update, supra note 5, at 8 (“The 2nd generation [breathalyzer] is too bulky and not suitable for vehicle integration.”).

    [16] See, e.g., Julie A. Lahausse & Brian N. Fildes, Cost-Benefit Analysis of an Alcohol Ignition Interlock for Installation in all Newly Registered Vehicles, 10 Traffic Injury Prevention 528 (2009). But see Igor Radun et al., Alcohol Ignition Interlocks in All New Vehicles: A Broader Perspective, 15 Traffic Injury Prevention 335 (2014). It is also worth noting that MADD, the influential anti-drunk driving group, does not endorse the universal installation of IIDs, though the organization does not justify its position on its website. See Sober to Start, Mothers Against Drunk Driving, https://www.madd.org/the-solution/drunk-driving/ignition-interlocks/ [https://perma.cc/5B8C-DB7F].

    [17] Act of Apr. 12, 1906, ch. 113, §§ 19, 35, 1906 N.J. Laws 177, 186, 195–97.

    [18] A person’s blood alcohol content (BAC) is the standard objective metric of one’s drunkenness, measuring the mass of alcohol per volume of blood. BAC is typically expressed in a percentage or grams per deciliter (g/dL).

    [19] An Act Defining Motor Vehicles and Providing for the Registration of Same, supra note 17.

    [20] Birchfield v. North Dakota, 136 S. Ct. 2160, 2167 (2016) (citing Robert L. Donigan, Chemical Tests and the Law 2 (1966)).

    [21] Robert L. Donigan, Chemical Test Law in the United States 123 (4th Conference of the Int’l Council on Alcohol, Drugs & Traffic Safety, Working Paper) (1965), http://www.icadtsinternational.com/files/documents/1965_017.pdf [https://perma.cc/255E-9B2Z].

    [22] Nat’l Safety Council, A History of The Committee On Alcohol And Other Drugs 8 (1989). More modern, detailed descriptions offer a more explicit window into the effects of alcohol at different levels of BAC:

    0.02-0.03 BAC: No loss of coordination, slight euphoria and loss of shyness. Depressant effects are not apparent. Mildly relaxed and maybe a little lightheaded.
    0.04-0.06 BAC: Feeling of well-being, relaxation, lower inhibitions, sensation of warmth. Euphoria. Some minor impairment of reasoning and memory, lowering of caution. Your behavior may become exaggerated and emotions intensified (Good emotions are better, bad emotions are worse)
    0.07-0.09 BAC: Slight impairment of balance, speech, vision, reaction time, and hearing. Euphoria. Judgment and self-control are reduced, and caution, reason and memory are impaired, .08 is legally impaired and it is illegal to drive at this level. You will probably believe that you are functioning better than you really are.
    0.10-0.125 BAC: Significant impairment of motor coordination and loss of good judgment. Speech may be slurred; balance, vision, reaction time and hearing will be impaired. Euphoria.
    0.13-0.15 BAC: Gross motor impairment and lack of physical control. Blurred vision and major loss of balance. Euphoria is reduced and dysphoria (anxiety, restlessness) is beginning to appear. Judgment and perception are severely impaired.
    0.16-0.19 BAC: Dysphoria predominates, nausea may appear. The drinker has the appearance of a “sloppy drunk.”
    0.20 BAC: Felling dazed, confused or otherwise disoriented. May need help to stand or walk. If you injure yourself you may not feel the pain. Some people experience nausea and vomiting at this level. The gag reflex is impaired and you can choke if you do vomit. Blackouts are likely at this level so you may not remember what has happened.
    0.25 BAC: All mental, physical and sensory functions are severely impaired. Increased risk of asphyxiation from choking on vomit and of seriously injuring yourself by falls or other accidents.
    0.30 BAC: STUPOR. You have little comprehension of where you are. You may pass out suddenly and be difficult to awaken.
    0.35 BAC: Coma is possible. This is the level of surgical anesthesia.
    0.40 BAC and up: Onset of coma, and possible death due to respiratory arrest.

    Effects At Specific B.A.C. Levels, Be Responsible About Drinking 21, http://www.brad21.org/effects_at_specific_bac.html [https://perma.cc/JD8N-DS2V].

    [23] Birchfield, 136 S. Ct. at 2167 (citations omitted).

    [24] Section 402: State Highway Safety Programs, Fed. Highway Admin., U.S. Dep’t of Transp., http://safety.fhwa.dot.gov/legislationandpolicy/policy/section402/ [https://perma.cc/QF4A-8XUW].

    [25] Id.

    [26] Ralph E. Hingson, Jonathan Howland & Suzette Levenson, Effects of legislative reform to reduce drunken driving and alcohol-related traffic fatalities, 103 Pub. Health Reports 659, 659 (1988).

    [27] See History, Mothers Against Drunk Driving, http://www.madd.org/drunk-driving/about/history.html [https://perma.cc/LB7X-6PX3].

    [28] Originally at 23 U.S.C. § 408, the language creating the program has since been moved to 23 U.S.C.A. § 405(c) (West 2016).

    [29] A per se law criminalizes driving at a certain BAC, regardless of whether the alcohol had or could have had any actual effect on the driver’s motor skills.

    [30] Nat’l Highway Traffic Safety Administration, U.S. Dep’t of Transp., Legislative history of .08 Per Se Laws (2001), https://one.nhtsa.gov/people/injury/research/pub/alcohol-laws/08History/index.htm.

    [31] 23 U.S.C. § 158 (2012).

    [32] Id.

    [33] Hingson, supra note 26, at 659–60.

    [34] Id.

    [35] Id. at 660 (“An analysis of national traffic data from 1978-85 by the Insurance Institute for Highway Safety indicated that administrative per se laws, on average, reduced night crashes 9 percent relative to States that did not pass such legislation. Criminal per se laws against drunken driving and increased penalties were each accompanied by 6-percent declines in night fatal crashes relative to States that did not pass such laws.”).

    [36] See, e.g., Joint Resolution To designate the period commencing December 11, 1988, and ending December 17, 1988, as “National Drunk and Drugged Driving Awareness Week,” Pub. L. No. 100-682, 102 Stat. 4079 (1988).

    [37] See, e.g., H.R.J. Res. 472, 100th Cong. (1988).

    [38] Criminal Victims Protection Act of 1990, Pub. L. No. 101-581, § 2, 104 Stat. 2865, 2865 (codified as amended in scattered sections of 18 U.S.C.).

    [39] Drunk Driving Child Protection Act of 1994, Pub. L. No. 103-322, §100002, 108 Stat. 1996, 1996 (codified as amended in scattered sections of 18 U.S.C.).

    [40] Transportation, Loyola U. Chi. Health Sys., http://www.stritch.luc.edu/depts/injprev/transprt/tran1-06.htm [https://perma.cc/6P2P-N6VH] (referring to the Transp. Equity Act for the 21st Century, Pub. L. No. 105-178, 112 Stat. 107 (1998)).

    [41] Elizabeth Shogren, Clinton Seeks Strict Drunk Driving Laws, L.A. Times (June 11, 1995), http://articles.latimes.com/1995-06-11/news/mn-12121_1_drunk-driving-laws [https://perma.cc/6XV4-EALA].

    [42] Press Release, White House, President Clinton Helps Make Our Roads Safer for American Families (Oct. 23, 2000), https://clinton4.nara.gov/textonly/WH/new/html/Mon_Oct_23_085542_2000.html [https://perma.cc/TM7L-YR4P].

    [43] Alcohol Impaired Driving, supra note 13.

    [44] Nat’l Transp. Safety Board, Reaching Zero: Actions to Eliminate Alcohol-Impaired Driving 23 (2013).

    [45] See, e.g., Alcohol Impaired Driving, supra note 13.

    [46] Uber itself made this argument. See Press Release, Uber, DUI Rates Decline in Uber Cities (May 5, 2014), https://newsroom.uber.com/us-illinois/dui-rates-decline-in-uber-cities/ [https://perma.cc/K2N2-KRE4] (“estimat[ing] that the entrance of Uber in Seattle caused the number of arrests for DUI to decrease by more than 10%”).

    [47] Angela K. Dills & Sean E. Mulholland, Ride-Sharing, Fatal Crashes, and Crime 13 (Feb. 13, 2016) (unpublished article), https://ssrn.com/abstract=2783797 [https://perma.cc/Z5BE-GKRH].

    [48] Noli Brazil & David S. Kirk, Uber and Metropolitan Traffic Fatalities in the United States, 184 Am. J. Epidemiology 192, 192 (2016) (finding that “the deployment of Uber services in a given metropolitan county had no association with the number of subsequent traffic fatalities, whether measured in aggregate or specific to drunk-driving fatalities or fatalities during weekends and holidays”).

    [49] Id. at 196–97.

    [50] Id. at 197.

    [51] Frederick Kunkle, Is Uber reducing drunk driving? New study says no, Wash. Post (Jul. 27, 2016), https://www.washingtonpost.com/news/tripping/wp/2016/07/27/is-uber-reducing-drunk-driving-new-study-says-no/ [https://perma.cc/4HHR-TAA9].

    [52] Nat’l Highway Traffic Safety Admin., U.S. Dep’t of Health & Human Servs., Traffic Safety Facts 1 (2015), https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/812231 [https://perma.cc/WB7K-DCT4].

    [53] Id. at 4.

    [54] Id. at 2.

    [55] Lawrence J. Blincoe et al., The Economic and Societal Impact Of Motor Vehicle Crashes, 2010 (Revised) 162, Nat’l Highway Traffic Safety Admin., U.S. Dep’t of Health & Human Servs. (Rep. No. 812 013). The report also thoroughly details how it arrives at those conclusions, including the costs of part parts impacted, hospital stays and loss of productivity as well as cost estimates of life lost. Id. at 22–33. The costs also reflect property damage, insurance damages, and legal costs, id. at 34–43, and miscellaneous costs, id. at 43–45.

    [56] Id. at 3.

    [57] Id. at 3.

    [58] Id. at 162.

    [59] Id. at 160.

    [60] Id.

    [61] Id. at 287 (Appendix G).

    [62] Id. (defining “comprehensive costs” as “the value of lost quality-of-life as measured by society’s willingness to pay to avoid risk, together with the economic impacts that result from death or injury in traffic cases”).

    [63] Id. at 4.

    [64] Id.

    [65] McGinty et al., supra note 13, at 2 (citing TEA-21 – Fact Sheet: Minimum Penalties for Repeat Offenders for DWI or DUI, Fed. Highway Admin., U.S. Dep’t of Transp., https://www.fhwa.dot.gov/Tea21/factsheets/n_164.htm [https://perma.cc/L3WR-XXMK]).

    [66]How The Ignition Interlock Device Works, IgnitionInterlockDevice.Org, http://www.ignitioninterlockdevice.org/ignitioninterlockdevice.html [https://perma.cc/YMA8-B2EW].

    [67] Tara Casanova-Powell et al., Evaluation of State Ignition Interlock Programs: Interlock Use

    Analyses From 28 States, 2006-2011, 1 Nat’l Highway Traffic Safety Admin., U.S. Dep’t of Health & Human Servs. (Rep. No. 812 145).

    [68] See Sober to Start, supra note 16.

    [69] See id. Additionally, states require that the devices meet specifications before installation.

    [70] This is one reason the DADSS recommended finger-reading technology, which does not test the air. See Sullivan, supra note 11, at 25 (“There are numerous ways to ‘game’ breathalyzers to give a false signal”) (citing Shelly Wutke, Cheat the Interlock Device? Not a Good Idea, Guardian Interlock (Sept. 10, 2014), http://guardianinterlock.com/blog/cheat-interlock-device-good-idea/ [https://perma.cc/C2JF-QLVG]).

    [71] A fingerprint reader mixed with a BAC reader could solve the identity-verification problem. See supra note 9 and accompanying text.

    [72] This would also implicate potential Fourth Amendment questions, described infra in Section V.C.

    [73] See Ala. Code § 32-5A-191.4 (2017); Alaska Stat. Ann. § 11.76.140 (West 2017); Ark. Code Ann. § 5-65-123 (West 2017); Ariz. Rev. Stat. Ann. § 28-1464; Cal. Veh. Code § 23247 (West 2017); Conn. Gen. Stat. Ann. § 14-227k (West 2017); D.C. Code Ann. § 50-2201.05a (West 2017); Del. Code Ann. tit. 11 § 1249 (West 2017); Ga. Code Ann. § 42-8-118 (West 2017); Fla. Stat. Ann. § 316.1937 (West 2017); Haw. Rev. Stat. Ann. § 291E-66 (West 2017); Ill. Comp. Stat. Ann. 625 § 5/6-206.2 (West 2017); Ind. Code Ann. 9-30-5-8 (West 2017); Iowa Code Ann. § 321J.20 (West 2017); Kan. Stat. Ann. 8-1017 (West 2017); Ky. Rev Stat. Ann. § 189A.345 (West 2017); La. Stat. Ann. 14:334 (2017); Me. Rev. Stat. Ann. tit. 29-A § 2508 (2017); Md. Code Ann, Transp. § 27-107 (West 2017); Mass Gen. Laws Ann. 90 § 24T (West 2017); Minn. Stat. Ann. § 171.306 (West 2017); Miss Code Ann. § 63-11-31 (West 2017); Mich. Comp. Laws Ann. 257.625l (West 2017); Mo. Ann. Stat. 577.612 (West 2017); Mont. Code Ann. 61-8-440 (West 2017); Neb. Rev. Stat. Ann. § 60-6,211.05 (West 2017); N.H. Rev Stat. Ann. § 265-A:37; N.J. Stat. Ann. 39:4-50.19 (West 2017); N.M. Stat. Ann. § 66-5-33.1 (West 2017); N.Y. Veh. & Traf. § 1198 (McKinney 2017); N.C. Gen. Stat. Ann. § 20-17.8A (West 2017); N.D. Cent. Code Ann. 39-06.1-11 (West 2017); Ohio Rev. Code Ann. § 4510.44 (West 2017); Or. Rev. Stat. Ann. § 813.610 (West 2017); 75 Pa. Stat. and Con. Stat. Ann. § 3808 (West 2017); R.I. Gen. Laws Ann. § 31-27-2.8 (West 2017); S.C. Code Ann. § 56-5-2941 (2017); S.D. Codified Laws § 32-23-4.9 (2017); Tenn. Code Ann. § 55-10-417 (West 2017); Tex. Code Crim. Proc. Ann. art. 42A.408 (West 2017); Utah Code Ann. § 41-6a-518.1 (West 2017); Vt. Stat. Ann. tit. 23 § 1213 (West 2017); Va. Code Ann. § 18.2-270.1 (West 2017); Wash Rev. Code Ann. 46.20.750 (West 2017); Wis. Stat. Ann. 347.413 (West 2017); Wyo. Stat. Ann. § 31-7-404 (West 2017).

    [74] E. Donald Sussman, Transp. Sys. Ctr., Summary and Evaluation of Responses Received on the Alcohol Safety Interlock system Prospectus 1 (1971).

    [75] Richard P. Compton, Nat’l Highway Traffic Safety Admin., U.S. Dep’t of Health & Human Servs., Potential for Application of Ignition Devices to Prohibit Operation of Motor Vehicles By Intoxicated Individuals 2–5 (1988), https://ntl.bts.gov/lib/25000/25800/25800/DOT-HS-807-281.pdf [https://perma.cc/4AZX-6RDN].

    [76] Id. at viii.

    [77] See, e.g., Oversight Hearing on Effectiveness of Federal Drunk Driving Programs: Hearing Before the Subcomm. on Transp. Safety, Infrastructure Sec., & Water Quality of the S. Comm. on Env’t & Publ. Works, 110th Cong. 1–2 (2007) (statement of Frank Lautenberg, Chairman, Subcomm. on Transp. Safety, Infrastructure Security, and Water Quality) (“To prevent more injuries, we ought to make greater use of technology such as ignition interlocks that lock a car’s ignition when a driver’s blood alcohol level is too high. I look forward to hearing about those efforts.”); Vehicle Safety for Children: Hearing Before the Subcomm. on Consumer Affairs, Ins., & Auto. Safety of the S. Comm. on Commerce, Sci., & Transp., 110th Cong. 39 (2007) (statement of Dave McCurdy, President, CEO, Alliance of Automobile Manufacturers); Various Approaches to Improving Highway Safety: Hearing Before the Subcomm. on Highways a& Transp. of the H. Comm. on Transp. & Infrastructure, 107th Cong. 49 (2002) (statement of Wendy Hamilton, President-Elect, Mothers Against Drunk Driving); Averting Alcohol Abuse: New Directions in Prevention Policy: Hearings Before Committee on Government Affairs, 101st Cong. 33–34 (1989) (statement of William Scott, Director, Office of Alcohol and State Programs, National Highway Traffic Safety Administration); Safety Implications of the Kentucky Schoolbus Crash: Hearing Before the Subcomm. on Transp., Tourism, & Hazardous Materials of the H. Comm. on Energy & Commerce, 100th Cong. 1–2 (1988) (statement of Thomas A. Luken, Chairman, H. Subcomm. On Transp., Tourism, and Hazardous Materials) (“We want to know why NHTSA is not doing more to ensure the use of ignition interlock devices which prevent a person who has been drinking alcohol from starting an automobile”);  U.S. Gov’t Accountability Office, GAO-14-559, Traffic Safety: Alcohol Ignition Interlocks Are Effective While Installed; Less Is Known about How to Increase Installation Rates (2014), http://www.gao.gov/assets/670/664281.pdf [https://perma.cc/25BA-2SBW].

    [78] See McGinty et al., supra note 13, at 2 (first citing Kenneth H. Beck et al., Effects of Ignition Interlock License Restrictions on Drivers With Multiple Alcohol Offenses: A Randomized Trial in Maryland, 89 Am. J. Pub. Health 1696 (1999); and then citing Charlene Willis et al., Alcohol Ignition Interlock Programmes for Reducing Drink Driving Recidivism, Cochrane Database Systematic Revs. at 4 (Article No. CD004168, 2004); and then citing Randy W. Elder et al., Effectiveness of Ignition Interlocks for Preventing Alcohol-Impaired Driving and Alcohol-Related Crashes: A Community Guide Systematic Review, 40 Am. J. Preventive Med. 362 (2011); and then citing Richard Roth et al., Interlocks for First Offenders: Effective?, 8 Traffic Inj. Prevention 346 (2007); and then citing Julie A. Lahausse & Brian N. Fildes, Cost-Benefit Analysis of an Alcohol Ignition Interlock for Installation in all Newly Registered Vehicles, 10 Traffic Inj. Prevention 528 (2009); and then citing Jeffrey H. Coben & Gregory L. Larkin, Effectiveness of Ignition Interlock Devices in Reducing Drunk Driving Recidivism, 16 Am. J. Preventive Med. (Supplement 1) 81 (1999); and then citing Casanova-Powell, supra note 8).

    [79] Casanova-Powell, supra note 8, at 1 (citing Elder et al., supra note 79; Willis et al., supra note 79).

    [80] See Patrick M. Carter et al., Modeling the Injury Prevention Impact of Mandatory Alcohol Ignition Interlock Installation in All New U.S. Vehicles, 105 Am. J. Pub. Health 1028, 1028 (2015).

    [81] Id. The study used the Fatality Analysis Reporting System (FARS) and National Automotive Sampling System’s General Estimates System (NASS-GES) to identify alcohol-involved motor vehicle crashes’ injuries and fatalities. Id. at 1029. The study classified alcohol-involved crashes as ones in which one or more drivers had a blood alcohol content value of greater than .02 g/dL, one quarter of the legal limit. Id.

    [82] Id. at 1031.

    [83] Id.

    [84] See Gwen Bergen et al., Vital Signs: Alcohol-Impaired Driving Among Adults—United States, 2010, 306 J. Am. Med. Ass’n 2208, 2208–09 (2011).

    [85] Carter, supra note 81, at 1031.

    [86] Id. at 1033.

    [87] Such regulations are likely to fail at the state level because a lone state market may not create enough of an incentive for a major automobile manufacturer to change its production models while also incentivizing drivers to register automobiles across state borders.

    [88] See also Sullivan, supra note 11, at 5–33.

    [89] Motor Veh. Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co. (“State Farm”), 463 U.S. 29, 33–34 (1983).

    [90] 49 U.S.C. § 30111 (2012). The FMVSS are codified at 49 C.F.R. pt. 571 (2016).

    [91] See Federal Motor Vehicle Safety Standards and Regulations, Office of Vehicle Safety Compliance, Dep’t. of Transp., https://icsw.nhtsa.gov/cars/rules/import/FMVSS/ [https://perma.cc/ET2F-VZKD].

    [92] National Traffic and Motor Vehicle Safety Act of 1966, Pub. L. No. 89-563, § 102, 80 Stat. 718 (1966) (codified as amended in 49 U.S.C. (2012)). Put another way, FMVSS “generally focus on crash avoidance, crashworthiness, and post-crash survivability.” Anita N. Kim et al., Review of Federal Motor Vehicle Safety Standards (FMVSS) for Automated Vehicles 1 (2016).

    [93] 49 U.S.C. § 30112 (2012).

    [94] Federal Motor Vehicle Safety Standards, supra note 92 (citing Standard No. 208; Occupant crash protection, 49 C.F.R. § 571.208 (2017)). The FMVSS took effect on January 1, 1968. Id.

    [95] See 49 U.S.C. § 30124 (2012).

    [96] See Occupant Protection | Safety (Seat) Belts and Child Passengers, Nat’l Conference of State Legislatures, http://www.ncsl.org/research/transportation/occupant-protection-safety-belts-and-child-passen.aspx [https://perma.cc/Q9L6-YGEA]. Only New Hampshire does not mandate seatbelt usage for drivers, id., though the other states treat driving without a seatbelt in a non-uniform manner: some categorize it as a primary offense, and others as a secondary one. Id. The former signifies that lacking a seatbelt alone is a violation and merits an officer pulling over a driver, while the latter signifies that it can only be cited if the driver is pulled over or cited for a different violation. Id.

    Notably, seat belt ignition interlocks—barring cars from starting without a fastened driver seat belt—were briefly required at the federal level. See Laws Requiring Safety Belts, Traffic Ls. Comment., Oct. 1972, at 2. These laws were repealed soon after. See id.; 49 U.S.C. § 30124 (2012), supra note 95.

    Moreover, in 2013, BMW “applied for, and the NHTSA denied, a rulemaking petition providing for an exception to the prohibition on seatbelt interlock systems.” Sullivan, supra note 11, at 18 (citing Federal Motor Vehicle Safety Standards; Occupant Crash Protection, 78 Fed. Reg. 53,386 (Aug. 29, 2013) (codified at 49 C.F.R. § 571)).

    [97] See supra note 87 and accompanying text.

    [98] See infra note 182 and accompanying text.

    [99] See supra notes 81–84 and accompanying text.

    [100] Sch. Bus Mfrs. Tech. Council, Mini Guide to the Federal Motor Vehicle Safety Standards and Related Regulations (issued as of May 1, 2004) (2004), http://www.nasdpts.org/documents/pubsbmtcminiguide04.pdf [https://perma.cc/43GZ-BZH8] (citing Theft Protection and Rollaway Prevention, 49 C.F.R. § 571.114 (2017)).

    [101] Windshield Defrosting and Defogging Systems, 49 C.F.R. § 571.103 (2017).

    [102] Windshield Wiping and Washing Systems, 49 C.F.R. § 571.104 (2017).

    [103] Lamps, Reflective Devices, and Associated Equipment, 49 C.F.R. § 571.108 (2017).

    [104] New Pneumatic and Certain Specialty Tires, 49 C.F.R. § 571.109 (2017); Tire Selection and Rims and Motor Home/Recreation Vehicle Trailer Load Carrying Capacity Information for Motor Vehicles with a GVWR of 4,536 Kilograms (10,000 pounds) or Less, 49 C.F.R. § 571.110 (2011); Dep’t of Transp. Retreaded Pneumatic Tires, 49 C.F.R. § 571.117 (2011); Dep’t of Transp. New Pneumatic Tires for Motor Vehicles with a GVWR of More Than 4,536 Kilograms (10,000 Pounds) and Motorcycles, 49 C.F.R. § 571.119 (2017); Tire Selection and Rims and Motor Home/Recreation Vehicle Trailer Load Carrying Capacity Information for Motor Vehicles with a GVWR of More Than 4,536 Kilograms (10,000 Pounds), 49 C.F.R. § 571.120 (2017).

    [105] Rear Visibility, 49 C.F.R. § 571.111 (2017).

    [106] Theft Protection and Rollaway Prevention, 49 C.F.R. § 571.114 (2017).

    [107] This has been done before. See, e.g., Light Vehicle Brake Systems, 49 C.F.R. § 571.135 (2017); FMVSS No. 135 (implementing a 3 or 4 year optional period for vehicle brake systems, after which the system became mandatory).

    [108] See supra notes 13, 74.

    [109] U.S. Const., art. I, § 8, cl. 3.

    [110] United States v. Lopez, 514 U.S. 549 (1995).

    [111] Id. at 558–59 (internal citations and quotations omitted).

    [112] Hoke v. United States, 227 U.S. 308, 320 (1913).

    [113] See, e.g., United States v. Darby, 312 U.S. 100, 113 (1941); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 256 (1964).

    [114] Caminetti v. United States, 242 U.S. 470, 491 (1917) (stating that this principle “is no longer open to question.”).

    [115] The highway system is based off of roadways named Interstates! See History of the Interstate Highway System, Fed. Highway Admin., U.S. Dep’t of Transp., https://www.fhwa.dot.gov/interstate/history.cfm [https://perma.cc/SQL7-YDXW].

    [116] Not to mention “immoral.”

    [117] An argument could also be lodged under the third pillar of Commerce Clause jurisprudence: with respect to control of activities which “have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control.” NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937). Though the scope of the Commerce Clause has waned in recent decades, see, e.g., Kathleen M. Sullivan & Noah R. Feldman, Constitutional Law 109–10, 136–64 (18th ed. 2013) (highlighting the Supreme Court’s decisions in United States v. Lopez, 514 U.S. 549 (1995), United States v. Morrison, 529 U.S. 598 (2000), and Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012), as “mark[ing] a partial return to judicial intervention to prevent the Commerce Clause from becoming an unlimited national police power”), drunk driving’s vast impact on the economy may prove sufficiently to meet the “substantial relationship” threshold. Admittedly, this argument may face an uphill battle in light of Morrison, 529 U.S. at 598.

    [118] See generally Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983).

    [119] Specifically, the removal of a regulation, which is technically itself a regulation. See id. at 42 (“While the removal of a regulation may not entail the monetary expenditures and other costs of enacting a new standard . . . the direction in which an agency chooses to move does not alter the standard of judicial review established by law.”).

    [120] See State Farm, 463 U.S. at 29.

    [121] See supra notes 79–80 and accompanying text.

    [122] A secondary source for inspiration is the effect of mandatory seatbelt laws. One study determined that these laws led to a 22 percent increase in seatbelt usage. Alma Cohen & Liran Einav, The Effects of Mandatory Seat Belt Laws on Driving Behavior and Traffic Fatalities, 85 Rev. Econ. & Stat. 828, 829 (2003). Admittedly, this figure was only for states that classified seatbelt violations as primary offenses; that figure dropped down to 11 percent when seatbelt violations were classified as a secondary offense. Id.

    [123] See supra note 87 and accompanying text.

    [124] South Dakota v. Dole, 483 U.S. 203, 207 (1987) (citations omitted).

    [125] See, e.g., New York v. United States, 505 U.S. 144, 149 (1992) (“[W]hile Congress has substantial power under the Constitution to encourage the States to [provide a service], the Constitution does not confer upon Congress the ability simply to compel the States to do so.”) In New York, for example, the Supreme Court struck down a statute that gave states the choice between complying with federal regulations regarding handling nuclear waste and “taking title to and possession of the low level radioactive waste generated within their borders and becoming liable for all damages waste generators suffer as a result of the States’ failure to” regulate such materials. Id. at 174–75. Given the severity of this proposed “choice,” the Court held that “Congress has crossed the line distinguishing encouragement from coercion.” Id. at 175.

    [126] See Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 647 (2012) (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting).

    [127] Id. at 576–85.

    [128] Id. at 585.

    [129] Id. at 581.

    [130] Pub. L. No. 98-363, 98 Stat. 435 (1984); 23 U.S.C. § 158 (2012); 23 C.F.R. § 1208.3 (2017).

    [131] Dole, 483 U.S. at 207.

    [132] 23 U.S.C. § 164(b)(2).

    [133] 23 U.S.C. § 164(a). For example, instead of an interlock law, a state can suspend driving privileges for one year or restrict driving privileges pending participation in a “24-7 sobriety program,” pursuant to § 405(d)(7)(A). § 164(a). Making IIDs non-mandatory has been detrimental to their adoption by the states. See infra note 134 and accompanying text.

    [134] 23 U.S.C. § 405. The most relevant is the Impaired Driving Countermeasures program, 23 C.F.R. 1200.23. The grants are awarded to “[s]tates that adopt and implement effective programs to reduce traffic safety problems resulting from individuals driving motor vehicles while under the influence of alcohol, drugs, or the combination of alcohol and drugs or that enact alcohol ignition interlock laws.” Id. (emphasis added). Grants doled out under this provision are available to all fifty states and Puerto Rico. The states are then divided into low-, medium-, and high-range states based on a state’s fatality statistics. Id. The lower the statistics, the more flexibility the state is granted in how the granted funds are used and the fewer additional conditions the state must satisfy—often in the form of other legislative measures to combat impaired driving—to receive the grants. Id.

    [135] For an excellent overview of state laws and IID usage, see Sullivan, supra note 11, at 6–8.

    [136] Id. at 6 (internal citations omitted).

    [137] See supra Sections IV.A–D.

    [138] Ala. Code. § 27-13-120 (2017); Alaska Stat. Ann. § 21.96.025 (West 2017); Ark. Code. Ann. § 27-19-608 (West 2017); Cal. Veh. Code §§ 1675, 1676 (West 2017); Colo. Rev. Stat. Ann. § 10-4-632 (West 2017); Conn. Gen. Stat. Ann. § 38a-683 (West 2017); D.C. Code Ann. § 50-2003 (West 2017); 18 Del. Admin. Code § 600 (2017); Fla. Stat. § 627.0652 (2017); Ga. Code Ann. § 33-9-42 (West 2017); Idaho Code Ann. § 41-2515 (West 2017); Ill. Comp. Stat. Ann. 215 § 5/143.29 (West 2017); Kan. Stat. Ann. 40-1112a (West 2017); Ky. Rev. Stat. Ann. § 304.13-063 (West 2017); La. Stat. Ann. 22:1457 (2017); Me. Rev. Stat. Ann. tit. 24-A § 2902-G (2017); Minn. Stat. Ann. § 65B.28 (West 2017); Miss. Code Ann. § 63-15-46 (West 2017); Mont. Code Ann. 33-16-223 (West 2017); Nev. Rev. Stat. Ann. 690B.029 (West 2017); N.J. Stat. Ann. 17:33B-45.1 (West 2017); N.M. Stat. Ann. § 59A-32-14 (West 2017); N.Y. Ins. Law § 2336 (McKinney 2017); N.D. Cent. Code Ann. 26.1-25-04.1 (West 2017); Okla. Stat. Ann. tit. 36 § 924.1 (West 2017); Or. Rev. Stat. Ann. § 742.490 (West 2017); 75 Pa. Stat. and Cons. Stat. Ann. § 1799.2 (West 2017); R.I. Gen. Laws Ann. § 27-9-7.1 (West 2017); S.C. Code Ann. § 38-73-737 (2017); Tenn. Code Ann. § 56-7-1107 (West 2017); Utah Code Ann. § 31A-19a-211 (West 2017); Va. Code Ann. § 38.2-2217 (West 2017); Wash. Rev. Code Ann. 48.19.460 (West 2017); W. Va. Code Ann. § 33-20-18 (West 2017); Wyo. Stat. Ann. § 26-14-105 (West 2017).

    [139] Mich Comp. Laws Ann. 500.2111 (West 2017).

    [140] Compare Robert Harrow, Take a Defensive Driving Class if You Live in These States, Huffington Post (Feb. 24, 2017, 4:39 PM), http://www.huffingtonpost.com/robert-harrow/take-a-defensive-driving-_b_9290232.html [https://perma.cc/85UY-35MG] with Sober to Start, supra note 16 (“On average, interlocks are about $70-150 to install and about $60-80 per month for monitoring and calibration.”).

    [141] See, e.g., N.J. Stat. Ann. 39:5-30.9 (West 2017) (“Points recorded against a licensee shall also be reduced by two points if the licensee attends and satisfactorily completes an approved motor vehicle defensive driving course . . . .”); N.D. Cent. Code Ann. 39-06.1-13 (West 2017).

    [142] See Katy Steinmetz, These States Just Legalized Marijuana, Time (Nov. 8, 2016), http://time.com/4559278/marijuana-election-results-2016/ [https://perma.cc/6U44-4CPL].

    [143] See Angus Chen, Why Is It So Hard To Tell Whether Drivers Are Stoned?, NPR: Shots (Feb. 9, 2016, 12:27 PM), http://www.npr.org/sections/health-shots/2016/02/09/466147956/why-its-so-hard-to-make-a-solid-test-for-driving-while-stoned [https://perma.cc/96W9-C69B].

    [144] See What Is A Standard Drink?, Nat’l Inst. On Alcohol Abuse & Alcoholism, Nat’l Inst. of Health, https://www.niaaa.nih.gov/alcohol-health/overview-alcohol-consumption/what-standard-drink [https://perma.cc/4M3E-D397].

    [145] U.S. Const. amend. V. This right is mirrored and imposed on states through identical language in the Fourteenth Amendment.

    [146] Kent v. Dulles, 357 U.S. 116, 125 (1958).

    [147] Saenz v. Roe, 526 U.S. 489, 498 (1998) (citing United States v. Guest, 383 U.S. 745, 757 (1966)). See also Guest, 383 U.S. at 758 (citing Zechariah Chafee, Three Human Rights in the Constitution of 1787, at 15 (1956)) (“The reason [for the right’s omission from the Constitution], it has been suggested, is that a right so elementary was conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created.”).

    [148] Articles of Confederation of 1781, art. IV, para. 1.

    [149] Saenz, 526 U.S. at 500.

    [150] Roger I. Roots, The Orphaned Right: The Right to Travel by Automobile, 1890–1950, 30 Okla. City U. L. Rev. 245, 267 (2005).

    [151] Saenz, 526 U.S. at 501.

    [152] 314 U.S. 160 (1941).

    [153] Id. at 171.

    [154] Id. at 174.

    [155] See United States v. Guest, 383 U.S. 745 (1966).

    [156] See id. at 757–60.

    [157] Town of Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005) (citing Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972)).

    [158] Paul v. Davis, 424 U.S. 693, 709 (1976) (quoting Roth, 408 U.S. at 577).

    [159] See, e.g., N.Y. Veh. & Traf. § 1193(g)(2)(2)(b) (McKinney 2017) (outlining revocations based on offense).

    [160] Notably, many of these revocations and bans stem from alcohol-related incidents. See, e.g., N.Y. Comp. Codes R. & Regs. tit. 15, §136.5 (2017) (if “the person has five or more alcohol—or drug-related driving convictions or incidents in any combination within his or her lifetime, then the Commissioner shall deny the application.”).

    [161] Roth, 408 U.S. at 577.

    [162] Cf. Sherbert v. Verner, 374 U.S. 398, 406 (1963); Bates v. Little Rock, 361 U.S. 516, 524 (1960); Korematsu v. United States, 323 U.S. 214, 216 (1944); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) .

    [163] Motor Veh. Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co. (“State Farm”), 463 U.S. 29, 42 (1983).

    [164] Jeremy B. Smith, The Flaws of Rational Basis with Bite: Why the Supreme Court Should Acknowledge Its Application of Heightened Scrutiny to Classifications Based on Sexual Orientation, 73 Fordham L. Rev. 2769, 2773–74 (2005).

    [165] See, e.g., Bolling v. Sharpe, 347 U.S. 497, 498 (1954).

    [166] United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938).

    [167] City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985) (discussing the strict scrutiny test, but applying rational basis with bite).

    [168] Russell Spivak & Adam Aliano, G.I. Jane and the Selective Service: Equal Protection Challenges to Male-Only Selective Service in the Modern Military, Harv. J. on Legis. Online (Aug. 5, 2016),

    http://harvardjol.com/2016/08/05/gi-jane-and-the-selective-service-equal-protection-challenges-to-male-only-selective-service-in-the-modern-military/ [https://perma.cc/UFF7-TXS4].

    [169] 440 U.S. 568 (1979).

    [170] Id. at 592.

    [171] Id. at 578.

    [172] Gayle Lynn Pettinga, Rational Basis with Bite: Intermediate Scrutiny by Any Other Name, 62 Ind. L.J. 779, 780 (1987).

    [173] City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 450 (1985).

    [174] 413 U.S. 528, 543 (1973).

    [175] 483 U.S. 587, 603 (1987) (describing a three-pronged inquiry: 1) “As a historical matter, [has the group been] subjected to discrimination”; 2) do they “exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group”; and 3) are they “a minority or politically powerless”).

    [176] Lawrence v. Texas, 539 U.S. 558, 580 (2003) (O’Connor, J., concurring).

    [177] Smith, supra note 162, at 2774.

    [178] See, e.g., Tom Wilson, Alcoholism and Disability Discrimination: Lessons from the USC Coach’s Case, 28 Emp. L. Comment. 1, 1–2 (2016); Paul Samuels, Fighting Discrimination Against People in Recovery from Alcoholism and Drug Addiction, HBO: Addiction, https://www.hbo.com/addiction/stigma/53_fighting_discrimination.html [https://perma.cc/AN2B-RZZN].

    [179] Joel Roberts, 30% Of Americans Abuse Alcohol, Study Says, CBS News (July 2, 2007), http://www.cbsnews.com/news/30-of-americans-abuse-alcohol-study-says/ [https://perma.cc/VQ6W-EGMX].

    [180] Cass R. Sunstein, Naked Preferences and the Constitution, 84 Colum. L. Rev. 1689, 1713 (1984). See also Smith, supra note 162, at 2773 (citing FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993)) (“As the Supreme Court has noted, a classification ‘must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.’”).

    [181] U.S. Const. amend. IV.

    [182] What’s more, even if the argument can be stretched to assert a search has been made, one voluntarily chooses to drive. Therefore, the response can be lodged that choosing to drive subject to a breathalyzer constitutes consent to be searched, which is lawful under Supreme Court precedent so long as the search does not exceed the scope of the consent. See Schneckloth v. Bustamonte, 412 U.S. 218, 248 (1973); Bumper v. North Carolina, 391 U.S. 543, 549–50 (1968).

    [183] Burdeau v. McDowell, 256 U.S. 465, 475 (1921).

    [184] 136 S. Ct. 2160 (2016)

    [185] Id. at 2177.

    [186] Florida v. Jimeno, 500 U.S. 248, 250 (1991) (citing Katz v. United States, 389 U.S. 347, 360 (1967)).

    [187] See, e.g., Jones v. Rath Packing Co., 430 U.S. 519, 543 (1977).

    [188] See Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947) (noting “the assumption that the historic police powers of the States [are] not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress”).

    [189] See Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996). See also David Luban, Lawfare and Legal Ethics in Guantánamo, 60 Stan. L. Rev. 1981, 2009 (2008) (“It is no answer to say that under the Supremacy Clause federal rules preempt inconsistent state rules, because it is radically unclear whether, absent clear congressional intent to preempt, federal rules in an area traditionally regulated by the states do indeed preempt state rules.”).

    [190] English v. Gen. Elec. Co., 496 U.S. 72, 79 (1990).

    [191] Altria Grp. v. Good, 555 U.S. 70, 77 (citing Bates v. Dow Agrosciences LLC, 544 U.S. 431, 449 (2005)).

    [192] Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142–43 (1963).

    [193] Rice, supra note 186, at 231.

    [194] Todd S. Schulman, Wisdom Without Power: The Department of Justice’s Attempt to Exempt Federal Prosecutors from State No-Contact Rules, 71 N.Y.U. L. Rev. 1067, 1085 (1996) (quoting Malone v. White Motor Corp., 435 U.S. 497, 504 (1978)).

    [195] See Background on: Compulsory Auto/Uninsured Motorists, Ins. Info. Inst., www.iii.org/issue-update/compulsory-auto-uninsured-motorists [https://perma.cc/PL5A-Q2NE].

    [196] N.H. Rev. Stat. Ann. § 3:8 (2016).

    [197] See Insurance Requirements/SR-22, N.H. Div. of Motor Vehicles, N.H. Dep’t. of Safety, https://www.nh.gov/safety/divisions/dmv/financial-responsibility/insurance.htm [https://perma.cc/XD8K-8M86].

    [198] See How Many Drivers Don’t Have Auto Insurance?, AutoInsurance.org, http://www.autoinsurance.org/how-many-drivers-dont-have-auto-insurance/ [https://perma.cc/73BQ-7NVG] (noting that only eleven percent of New Hampshire drivers do not have auto insurance).

    [199] See Legislative history of .08 Per Se Laws, supra note 30, at 16 (“Insurance companies such as Allstate Insurance, Kemper Insurance Group, Nationwide Insurance, and USAA Insurance, among others, have publicly expressed their support for .08 per se laws” compared to higher BAC limits.).

    [200] If the manufacturer was particularly cunning, it could even choose to design the IID such that it is exclusively serviceable at one of the manufacturer’s authorized service providers.

    [201] See, e.g., 2017 Prius Features, Toyota, http://www.toyota.com/prius/prius-features/#!/toyota-safety-sense/toyota-safety-sense-p-tss-p [https://perma.cc/9E73-DKJG].

    [202] See Plug-In Electric Drive Vehicle Credit (IRC 30D), Internal Revenue Serv., https://www.irs.gov/businesses/plug-in-electric-vehicle-credit-irc-30-and-irc-30d [https://perma.cc/B4PM-CN2B].

    [203] See, e.g., Volt, Chevrolet, http://www.chevrolet.com/previous-year/volt-plug-in-hybrid [https://perma.cc/FCW5-5RFC].

    [204] Impaired Driving: Get the Facts, supra note 3.

    References   [ + ]

    1. West 2017); Ariz. Rev. Stat. Ann. § 28-1401 (2017); Ark. Code Ann. § 5-65-118 (West 2017); Cal. Veh. Code § 23700 (West 2017); Colo. Rev. Stat. Ann. § 42-2-132.5 (West 2017); Conn. Gen. Stat. Ann. § 14-227a (West 2017); Del. Code Ann. tit. 21 § 4177C (West 2017); D.C. Code Ann. § 50-2201.05a (West 2017); Fla. Stat. Ann. § 322.2715 (West 2017); Ga. Code Ann. § 42-8-111 (West 2017); Haw. Rev. Stat. Ann. § 291E-61 (West 2017); Idaho Code Ann. § 18-8005 (West 2017); Ill. Comp. Stat. Ann. 730 § 5/5-6-3.1 (West 2017); Ind. Code Ann. 9-30-5-16 (West 2017); Iowa Code Ann. § 321J.17 (West 2017); Kan. Stat. Ann. 8-1015 (West 2017); Ky. Rev. Stat. Ann. § 189A.340 (West 2017); La. Stat. Ann. 32:378.2 (2017); Me. Rev. Stat. tit. 29-A § 2508 (2017); Md. Code Ann., Transp. § 27-107.1 (West 2017); Mass. Gen. Laws Ann. ch. 90 § 24 (West 2017); Mich. Comp. Laws Ann. 257.319 (West 2017); Minn. Stat. Ann. § 169A.55 (West 2017); Miss. Code. Ann. § 63-11-31 (West 2017); Mo. Ann. Stat. 302.440 (West 2017); Mont. Code. Ann. 61-8-442 (West 2017); Neb. Rev. Stat. Ann. § 60-6,211.05 (West 2017); Nev. Rev. Stat. Ann. §§ 483.490, 484C.460 (West 2017); N.H. Rev. Stat. Ann. § 265-A:36 (2017); N.J. Stat. Ann. 39:4-50.17 (West 2017); N.M. Stat. Ann. § 66-5-33.1 (West 2017); N.Y. Veh. & Traf. § 1193 (McKinney 2017); N.C. Gen. Stat. Ann. § 20-179.3 (West 2017); N.D. Cent. Code Ann. 39-06.1-11 (West 2017); Ohio Rev. Code Ann. § 4511.19 (West 2017); Okla. Stat. Ann. tit. 57 § 612 (West 2017); Or. Rev. Stat. Ann. § 813.602 (West 2017); 75 Pa. Stat. and Cons. Stat. Ann. § 3805 (West 2017); R.I. Gen. Laws Ann. § 31-27-2.8 (West 2017); S.C. Code. Ann. § 56-5-2941 (2017); S.D. Codified Laws §§ 1-11-20, 25 (2017); Tenn. Code Ann. §§ 55-10-409, 417 (West 2017
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