University of Wisconsin Law School

RESOURCE CENTER REPORT

Number 96-1

April 1996

University of Wisconsin Law School

Resource Center on Impaired Driving

The Minimum Drinking Age and Alcohol Policy: An Historical Overview and Response tothe Renewed Debate in Wisconsin

Nina J. Sines, Director

John Ekman, Research Assistant

Introduction

Since prohibition, the issue ofthe legal drinking age hasgenerated significant discussionand debate amongacademicians, legislators, andthe general public. The manypolicy shifts since prohibitionreflect America's ambivalenceabout alcohol and the difficultyin determining the "correct" ageat which an individual mayconsume alcohol. In 1984, itappeared the issue was resolvedwhen President Reagan signedthe Federal Uniform DrinkingAge Act of 1984 (Public Law98-363) which withheld aportion of federal highwayfunds to states that maintained aminimum drinking age (MDA)below 21.⁽¹⁾ However, the MDAissue has been raised again, notin the halls of Congress, but inthe statehouse of Wisconsin aslawmakers have begun toquestion whether the benefits offederal highway fundingoutweigh the economic andsocial impact of a 21 MDA.

In the wake of proposedlegislation to lower the MDA inWisconsin to 19,⁽²⁾ the ResourceCenter on Impaired Driving sawthe need to review thedevelopment of drinking agepolicy and its relationship toconcomitant social and politicalissues which occurred duringthe same time period.⁽³⁾ First,this report will provide a briefoverview of why changes inpolicy occurred as well as aframework for analyzing currentefforts to reduce the drinkingage. Second, it will tracechanges in national drinking agepolicy from prohibition to the1984 MDA 21 law. Third, thereport will suggest underlyingreasons for why the debate hasresurfaced in Wisconsin today. Finally, the report will providea brief discussion of both sidesof the spirited MDA policydebate as well as an historicaloverview of Wisconsin's drunkdriving laws.

Overview

The national minimum drinkingage⁽⁴⁾ has undergone four majorchanges since the 1920s. Thefirst took place with passage ofthe 18th Amendment whichushered in the era of prohibitionand was designed to block theconsumption of alcohol entirely. The second change occurredshortly thereafter in the 1930swith passage of the 21stAmendment which repealedprohibition and established aMDA of 21 in most states. Thethird major change did notoccur until 1970 when the 26thAmendment was passed whichlowered the voting age from 21to 18, changing America'sperception of when adulthoodbegan. Subsequently, 29 stateslowered their drinking agesbetween 1970 and 1974.⁽⁵⁾ Thischange brought a disparity ofMDAs among the states andultimately led to the fourthmajor change, the passage ofthe 1984 law which tied federalhighway funds to a 21-year-oldminimum drinking age.

This report will demonstratethat while the first three majorpolicy changes occurred forreasons unrelated to trafficsafety; namely, morality andfairness issues,⁽⁶⁾ the final changeemerged from a growingconcern over the number ofyoung people killed in alcohol-related crashes on America'shighways.

The 18th and 21stAmendments

Throughout history, theconstitutional amendment hasserved as a barometer and toolof political movement. Over11,000 amendments have beenproposed during the course ofthis nation's 207 years. Ofthose, only 27 were finallyapproved, one of which waslater repealed.⁽⁷⁾ Three of theamendments are critical to thedevelopment of MDA policyand germane to the discussionbelow.

The 18th Amendment, passed in1919, outlawed the consumptionof alcohol to all age groups.⁽⁸⁾ Before that time, no minimumdrinking age laws existed inAmerica. Prohibition occurredfor a variety of reasons, aboutwhich hundreds of books havebeen written.⁽⁹⁾ For purposes ofthis report, however, only abrief discussion of the reasonswill be provided.

Scholars have attributed thetemperance movement to amisplaced blame on alcohol forincreased crime and decreasedmorality. In reality, America'srapid industrialization andurbanization prior to WorldWar I (WWI) contributed tosociety's woes. Still othersattributed the resurgence ofreligious puritanism during andafter WWI to the rapid increasein antidrinking sentiment. Whichever view is taken, it isclear that the 18th Amendmentreflected the social consensus ofthat particular era.⁽¹⁰⁾ Any policydiscussion about the actualeffects of alcohol on society asa whole took a back seat to theknee-jerk moral argumentssupporting prohibition.

The 21st Amendment, enactedin 1933,⁽¹¹⁾ repealed prohibitionbased largely on the followingreasons: (1) a recognition ofthe failures of the complete ban;(2) a re-evaluation of theveracity of the prohibitionist'sclaim of America's decliningmorality; and (3) the GreatDepression which ledAmericans to seek solace inalcohol in response to poverty. Although some policyconsiderations entered into thedebate to repeal prohibition,⁽¹²⁾issues of changing perceptionsof morality and social normscontinued to dominate thedebate.

The 1970s and the 26thAmendment

Little happened from 1940 untilthe passage of the 26thAmendment in 1971⁽¹³⁾ whichlowered the voting age to 18. This national change alsobrought a change in attitudeabout the drinking age. Asmentioned earlier, most stateshad already established a 21MDA following the repeal ofprohibition. But the VietnamWar, in concert with theimplementation of the draft forall men over the age of 18,changed America's perceptionof when adulthood began andwhat privileges should beattached to that age ofmajority.⁽¹⁴⁾ Issues of fairnessand equity guided the debate;specifically, the idea that peoplewho are asked (and oftenrequired) to fight and die fortheir country should be allowedto consume alcoholic beverages. By 1975, 29 states had loweredtheir drinking ages.⁽¹⁵⁾

However, the lowered drinkingage proved to be short-lived inmany of these states. For thefirst time, legislators began tolook at the lower drinking agein relation to its effects onhighway safety. After MDAswere lowered, statesexperienced significantincreases in alcohol-relatedcrashes and fatalities amongyounger drivers.⁽¹⁶⁾ In responseto the evidence, 16 states raisedtheir MDA between 1976 and1983.⁽¹⁷⁾

These subsequent reductionsand increases in the MDAcreated disparities among statesand a phenomenon commonlyreferred to as "borderhopping."⁽¹⁸⁾ The problem thatresulted from the drinking agedisparities was aptly dubbed"blood borders" by policymakers and concernedcitizens.⁽¹⁹⁾ Specifically, theareas along state borders withdiffering legal drinking agescaused increases in alcohol-related crashes among underagedrivers traveling from one stateto the other to buy and consumealcohol. The Wisconsin andIllinois border is an example ofthe border-hoppingphenomenon.⁽²⁰⁾ In January of1980, Illinois raised its MDA to21 while Wisconsin maintainedan 18-year-old legal limit.⁽²¹⁾ InWisconsin border communities,the number of 19-year-oldsfrom Illinois involved inalcohol-related crashesincreased from 32.8 to 49.0percent. In addition, crashesinvolving 19- and 20-year-oldsincreased following the changein the MDA more than for anyother age group.⁽²²⁾ This trendwas duplicated along theborders of Iowa and Minnesotaas well.

1984 and Federal Action

In 1984, Ronald Reaganconvened the PresidentialCommission on Drunk Drivingto determine what should bedone to respond to the problemsresulting from the disparateminimum drinking ages. Thatcommission recommended thepresident move to act at thefederal level and implement anational MDA of 21. PresidentReagan, most notably apolitician opposed to federalregulation of states, determinedthat the commission'srecommendations werenecessary to combat thegrowing problem of bloodborders and alcohol-relatedcrashes nationally. Recognizingthat to pass a federal statutesetting a MDA would fly in theface of what traditionally waswithin a state's power toregulate, the ReaganAdministration crafted asolution to avoid constitutionalchallenge. Specifically, thegovernment conditioned thereceipt of federal highway fundson a state's compliance with thefederal recommendation of a21 MDA.⁽²³⁾

This fund-based federalincentive achieved the desiredresults. By 1986, 28 statesraised their minimum drinkingages to 21. Wisconsin raised itsMDA to 21 in September of1986.⁽²⁴⁾ The rest followed by1988.⁽²⁵⁾ The numbers clearlyspeak for themselves inreflecting the success of a 21MDA in producing a significantreduction in alcohol-relatedcrashes and fatalities amongyoung people.⁽²⁶⁾

All 50 states maintained aminimum drinking age of 21,until the recent and notableexception of Louisiana. OnMarch 8, 1996, the LouisianaSupreme Court held that the 21MDA was unconstitutional.⁽²⁷⁾ This decision overturned thelegislature's 1986 compliancewith the federal mandate. Bylowering the drinking age to 18,Louisiana has opened itsborders with Mississippi,Arkansas, and Texas towelcome young people under 21to drink. This action not onlyignores the national statistics butalso blatantly ignoresLouisiana's own experience as a"blood border" state.⁽²⁸⁾ However, the LouisianaSupreme Court announced onApril 4, 1996, that it willreconsider its ruling based onAttorney General RichardIeyoub's rehearing request. Oral arguments are scheduledfor May 22. In the meantime,the 21-year-old MDA willtechnically remain in effect.⁽²⁹⁾

The Debate in Wisconsin: The Pros and Cons ofMDA 21

The debate over the MDA inWisconsin surfaced again in the1995-96 legislative period, withboth sides arguing vehementlyover the pros and cons of a 21MDA. The arguments of thosewho support lowering the MDAecho those of the 1970s. Theyargue that because people underthe age of 21 can get married,vote, and "parachute intoBosnia,"⁽³⁰⁾ they should be ableto have a drink. Further, theyargue that reductions in alcohol-related crashes and fatalities for19- to 20-year-olds, whencombined with studies showingno measurable decrease inalcohol consumption, reflectstricter law enforcement and notchanges in drinking behaviorresulting from a higher MDA.⁽³¹⁾

In addition, advocates say thatany loss in federal highwayfunds will be made up byincreased tax revenue resultingfrom the increased alcoholconsumption of 19- and20-year-olds.⁽³²⁾ Finally, thisgroup argues that the decisionshould be left up to the statesand that the federal governmentinappropriately invaded an areaof law enforcement historicallyreserved to the states.

Opponents of a lower MDAfocus their arguments on theimpressive success that the 21MDA has had in reducingalcohol-related crashes andfatalities in Wisconsin andacross the United States. Theyargue that the numbers aredirectly attributable to thehigher MDA, because if stricterlaw enforcement had been thecause, the decreases would havebeen proportional across all agegroups. The statistics clearlyshow that this is not the case. Further, though 19- and20-year-olds still seem to bedrinking (as argued byproponents), the 21 MDA hassignificantly reduced the abilityof young people, especiallythose under 18, to obtainalcohol. As the MDA becomeslower, this so-called trickle-down effect⁽³³⁾ will only increase.

Finally, opponents of loweringthe MDA argue that the samepolicy considerations which leda conservative president toimplement federal guidelines in1984 remain significant. Thosewho argue that states shouldhave the right to control theirown citizens, ignore theproblem of "blood borders" andthe impact that one state'sdecision will have on another.⁽³⁴⁾ Highway safety, in theextremely mobile society inwhich we live, is a nationalconcern that requires a nationalsolution.

Conclusion

In the heated debate focused onchanging the MDA inWisconsin, it is important toremember how we arrived atour current policy position. This report has reviewed thedevelopment of the minimumdrinking age policy over a77-year period. These changesdid not occur rapidly. Thesechanges did not occurcapriciously. They occurred,particularly since the 1970s, inresponse to real policyconsiderations surroundinghighway safety and theproblems caused by drinkingand driving among America's18- to 20-year-olds.

In discussing the MDA laws,these policy considerationsshould not be ignored. Toignore this history implies thatour time is different, that we areunique, and that we will notsuccumb to the same problemsfaced by those who created theMDA laws. There is nothing inthe historical analysis to supportthose notions. In today'sdebate, that should not beignored. To ignore the past isto ensure its replication.

Endnotes

1. David N. Figlio, "The Effectof Drinking Age Laws andAlcohol-Related Crashes: Time-Series Evidence from Wisconsin,"Journal of Policy Analysis andManagement, Vol. 14, No. 4(1995).

2. The Assembly's State AffairsCommittee voted to lower thedrinking age to 19, provided itwould not result in loss of federalhighway funds. Mike Flaherty,"Assembly committee votes to dropdrinking age to 19," Wis. St. J.,April 19, 1995. See also A.B. 197(1995-96).

3. Judge James L. Carlson alsoexpressed an interest in having theResource Center track therelationship between the legaldrinking age and other nationalconflicts. Letter from JudgeJames L. Carlson, WalworthCounty Circuit Court, Branch 2, toNina J. Sines, Director, ResourceCenter on Impaired Driving(May 15, 1995).

4. Although a "nationalminimum drinking age" issomewhat of a misnomer, it isappropriate to analyze this issuefrom a national perspective. Significant differences in the MDAamong states will be discussed atthe times they occurred and howthey affected the policy debate.

5. James Fell, "Effectiveness ofRaising the Drinking Age to 21 InAll States in the U.S.," NationalHighway Traffic SafetyAdministration Study, WashingtonD.C., 1989.

6. Morality concerns clearlydominated the debates of the 1920sand 1930s, while fairness, the viewthat it is only fair to allow18-year-olds who can serve inVietnam and vote to also drinkalcohol, emerged in the 1970s.

7. Paul Reidinger, "TheFaltering Revolution," ABAJournal, Vol. 82, Feb. 1996,56-59.

8. Enacted in 1919, Section 1,Amendment 18, provided, "Afterone year from the ratification ofthis article the manufacture, sale,or transportation of intoxicatingliquors within, the importationthereof into, or the exportationthereof from the United States . . .for beverage purposes is herebyprohibited." U.S. Const. Amend.XVIII (repealed 1933).

9. For example; Deliver UsFrom Evil: An Interpretation ofAmerican Prohibition, Norman H.Clark, 1st ed., (New York: Norton, 1976); Origins of theEighteenth Amendment: TheProhibition Movement in theFederal System, 1880-1920,Richard Francis Ham, 1987;Profits, Power and Prohibition: Alcohol Reform and theIndustrialization of America,1800-1930, John J. Rumbarger,(Albany: State University of NewYork Press, 1989); and AlcoholConsumption During Prohibition,(Cambridge, MA: NationalBureau of Economic Research,1991).

10. Reidinger, supra note 7.

11. Section 2, Amendment 21provided, "The transportation orimportation into any State,Territory, or possession of theUnited States for delivery or usetherein of intoxicating liquors, inviolation of the laws thereof, ishereby prohibited." U.S. Const.Amend. XXI.

12. For example, the realizationof the ban's widespread failure inblocking alcohol production andthe growth of organized crimecentered around that production.

13. Section 1, Amendment 26,provided, "The right of citizens ofthe United States, who are eighteenyears of age or older, to vote shallnot be denied or abridged by theUnited States or by any State onaccount of age." U.S. Const.Amend. XXVI.

14. "Drunk on Sobriety," TheNew Republic, January 23, 1984,Vol. 190, p. 6.

15. The drinking ages variedgreatly during that time. Evenwithin a state, drinking ages oftenvaried depending on the type ofalcoholic beverage, with the agelimit for beer (and sometimeswine) being lower than that forhard liquor. For example,drinking ages ranged from 18 to 21based on the state and the type ofalcohol being consumed. Fell,supra note 5.

16. R.L. Douglass, L.D. Filkins,F.A. Clark, The Effect of LowerLegal Drinking Ages on YouthCrash Involvement, University ofMichigan Highway SafetyResearch Institute, Ann Arbor(1974). In Wisconsin, through the1970s, drivers 18 and 19 had analcohol-related crash involvementrate per 1,000 licensed drivers thatwas more than triple the statewiderate. Dennis Hughes and KamLeung, Driver Age and Alcohol-Related Accidents in Wisconsin,Wisconsin DOT, Division ofPlanning and Budget, April 1985.

17. Fell, supra note 5.

18. Figlio, supra, note 1.

19. Klitzner, et. al., "ReducingUnderage Drinking and ItsConsequences," Alcohol Healthand Research World, January1993, Vol. 17, No. 1, pg 12.

20. New York had similarproblems, primarily along theborder of Vermont where thedrinking age remained lower untilthe mid-1980s.

21. Russell Fleming, "WisconsinBorder Crossing Alcohol InvolvedAccidents," DOT, 1983, p. 17.

22. Id.

23. South Dakota v. Dole, 483U.S. 203 (1987). The SupremeCourt held that the governmentcould condition federal highwayfunds on a state's compliance witha 21 MDA based upon the publicsafety issue and the fact that themoney involved was not enough toforce states to comply if a lowerMDA was viewed by the statelegislature as good policy.

24. "Drinking Age Laws andWisconsin Traffic Safety,"Wisconsin DOT, December 1994,p. 1.

25. However, Guam, PuertoRico, and the Virgin Islands kepttheir MDAs at 18. U.S. Dep't ofTransp., Nat'l Highway TrafficSafety Admin., Digest of StateAlcohol Highway Safety RelatedLegislation, 14th ed., Jan. 1996. See also Fell, supra note 5.

26. Increasing the MDA inWisconsin from 18 to 19 (in July1984) and to 21 (in September1986) has resulted in feweralcohol-related crashes among theaffected age groups as reflected ina series of monographs preparedby the Wisconsin Department ofTransportation. For example, theFebruary 1994 monograph reportedthat alcohol-related crash rates for

19- and 20-year-olds fell 70.9percent and 66.8 percent,respectively, from 1985-86 to1992-93. David N. Figlio,"Drinking Age Laws andWisconsin Traffic Safety,"Wisconsin DOT, December 1994. See also Figlio, supra note 1. Further, an analysis of thirteenstates that increased their MDAs to21, revealed a 12 percent reductionin fatal crashes among affecteddrivers. The Impact of MinimumDrinking Age Laws on Fatal CrashInvolvements: An Update of theNHTSA Analyses, NHTSATechnical Report, (rev. Jan. 1989).

27. Manuel v. Louisiana, Sup.Ct. of La., No. 95-CA-2189(March 8, 1996), 1996 La. Lexis697.

28. Rick Bragg, "LouisianaStands Alone on Drinking at 18,"N.Y. Times, March 23, 1996.

29. Doug Myers, "Court torevisit drinking law," TheAdvocate, April 5, 1996, p. 1A.

30. Representative Scott Klug,"The National Drinking Age: States not Washington Should

Decide," On Premise, Vol. 13,No. 1, January/February 1996.

31. Id.

32. This point is curious whencombined with RepresentativeKlug's argument that alcoholconsumption among 19 and 20year-olds has not decreased. Thisseems to indicate that little, if any,tax impact would be generated bylowering the MDA.

33. Joseph F. Sullivan, "Jersey'sLegislature Votes to Raise LegalDrinking Age from 19 to 21," N.Y.Times, December 14, 1982, Sec.A, p. 1.

34. "The offices of IllinoisGovernor Jim Edgar and MichiganGovernor John Engler . . . fearthat lowering the [drinking age]limit to 19 again would create whatthey termed 'blood borders,' withyoung people from neighboringstates getting into fatal accidentsafter driving to Wisconsin todrink." Tom Heinen and KathyKhang, "State's neighbors preferkeeping age at 21," MilwaukeeJournal Sentinel, April 21, 1995.

Date Historical Overview - Wisconsin Drinking Driving Law⁽³⁵⁾

1849 Employment of any person to drive a coach or vehicle who is addicted to drunkenness or to the excessiveuse of intoxicating liquors was prohibited (Chapter 33).

1911 Operating, riding, or driving a motor vehicle while intoxicated was prohibited (Chapter 600). This appearsto be the first reference in Wisconsin Statutes to the actual offense of drunk driving.

1921 The same language, "no intoxicated person shall operate, ride, or drive any automobile." was used inChapter 761.

1923 The drunk driving provisions were included in the "Law of the Road" and the provision making [riding whileintoxicated] illegal was eliminated. Section 85.08 read as follows: "[A]nd [no intoxicated person shalloperate any automobile."].

1933 The drunk driving provisions were moved to sec. 85.13 and read as follows: "It shall be unlawful for anyperson who is a habitual user of narcotic drugs, or who is subject to epilepsy, or any person under theinfluence of an intoxicating liquor or narcotic drug, to operate any vehicle upon any highway." Section85.13 also provided for revocation/suspension of the driver's license in connection with a drunk drivingoffense.

1949 The concept of chemical analysis of breath, blood, urine, and saliva as evidence of drunk driving wasintroduced into Wisconsin Law in Chapter 534. The prohibited blood alcohol concentration was .15% thatcould be admitted as prima facie evidence of intoxication as long as there was corroborating evidence.

1969 Chapter 383 created Wisconsin's Implied Consent Law providing that persons who operate motor vehicleson highways are deemed to have given their consent to submit to a chemical test upon request by a policeofficer.

1971 The right to vote is granted to 18-year-olds by the 26th Amendment to the Constitution. In most states, aparallel effort lowers the minimum legal drinking age.

1973 The prima facie blood alcohol concentration was changed from .15% to .10%, but corroborating evidencewas still required.

1981 Wisconsin's Operating While Intoxicated (OWI) law was restructured and created the "per se" offense ofintoxication, if the person had an alcohol concentration in excess of .10% or more. It eliminated the abilityof prosecutors to plea bargain OWI offenses to lesser offenses.

1983 Chapter 74 created an Absolute Sobriety provision for persons under the legal drinking age. The legaldrinking age was also changed to age 19.

1984 Federal Uniform Drinking Age Act (Public Law 98-363) conditions receipt of federal highway funds to statesthat comply with a minimum legal drinking age of 21.

1985 Wisconsin Act 337 raised the drinking age to 21 effective September 1, 1986, and kept the absolute sobrietyprovision for age 19 and younger.

1987 Chapter 3 created immediate (30 days after the violation) administrative license suspension for six monthsfor any person with an alcohol concentration of .10% or greater. (Effective on January 1, 1988.)

1989 Chapter 105 created new OWI statutory provisions for commercial vehicle operators including an absolutesobriety provision and a reduced alcohol concentration level of .04%. (Effective on January 1, 1991.)

1991 NHTSA estimates 12,000 lives have been saved because of the 21 minimum legal drinking age.

1992 Chapter 277 created new penalties and treatment opportunities for OWI repeat offenders. This law includedpossible seizure of vehicles, increased penalty for Homicide by Intoxicated Use, an alcohol concentrationof .08% for third offense, and easier access to treatment. (Effective on January 1, 1993.)

The Resource Center on ImpairedDriving

The Resource Center on ImpairedDriving represents the combinedefforts of the Department ofTransportation and the University ofWisconsin Law School. TheResource Center is designed toprovide a wide range of alcohol-related data and legal information onimpaired driving issues to judges,prosecutors, defense attorneys, lawenforcement agencies, educators, andcitizens. In addition, the ResourceCenter will play an integral role ineducation and training programs ondevelopments in the drunk drivingfield.

The Department of Transportation(DOT) initially proposed the conceptof a clearinghouse for information onoperating while intoxicated and relatedissues in developing its AlcoholTraffic Safety Plan. The

Plan, funded through federal highwaysafety grant monies and implementedby the DOT, identified publicinformation and education asimportant countermeasures to theproblem of impaired driving. Asimilar idea was also proposed by theDOT Task Force Report on RepeatOffenders.

The Resource Center on ImpairedDriving is located in the law schoolOffice of Continuing Legal Educationand Outreach. The law schoolprovides a natural setting because ofsubstantial work done in the past onissues related to impaired driving. The Office of Continuing LegalEducation and Outreach has hadextensive experience in working withother state agencies, trial judges, andlawyers. The combined expertise,experience, and objectivity willenhance the Resource Center's abilityto develop effective responses to theproblem of the impaired driver.

From the point of view of the lawschool and the university, theResource Center on Impaired Drivingprovides an opportunity to be ofservice to the state in the tradition of"The Wisconsin Idea." Specifically,the Resource Center creates apartnership between state governmentand the university in addressing anissue of statewide importance. TheResource Center's initial service-oriented activities will provide aresearch base that will be instrumentalin the development of new policyinitiatives on impaired driving issues.

The Resource Center invites yourcomments, inquiries, and suggestions. Call toll free 1 (800) 862-1048 or inMadison 265-3411. The ResourceCenter's address is:

UW Resource Center on ImpairedDriving

905 University Ave., Suite 309

Madison, WI 53715-1094