This is an archived article that was published on sltrib.com in 2017, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Despite reservations, Gov. Gary Herbert signed into law a bill that will give Utah the lowest drunken-driving threshold in the nation.

While there may be problems with the law, the governor said, it doesn't take effect until the very end of 2018, which gives lawmakers time to fix any concerns that may arise before it kicks in.

The Legislature has developed a habit lately of passing lousy legislation on the rationale that they can come back and fix it later, but we'll save that for another column.

For now, the focus should turn to how to make this unenforceable, feel-good message law less of a mess and perhaps salvage Utah's reputation in the process.

So here are four steps the Legislature could take to address some of the serious flaws in the current proposal:

1 • Make driving over 0.05 blood alcohol content (BAC) an infraction.

A concern that people have with the new law is that, at such a low and murky standard, otherwise well-meaning, responsible drivers could be slapped with the very severe penalties that come with drunken driving.

Nobody condones driving drunk, but we also shouldn't treat driving at 0.05 BAC the same way we treat someone who is driving at 0.15 and is a real danger on the roads.

The Legislature could address that by instituting graduated penalties. For example, on the first offense, it could be treated as an infraction, like a speeding ticket.

You might ask, how do you equate speeding with driving at 0.05? Well, speeding drivers kill 25 times as many people a year as drivers with a BAC between 0.01 and 0.079, so yeah, there is no comparison. Speeding is worse.

This way, on a first offense, drivers could pay a fine, perhaps suffer some driving restrictions, but not pay the thousands of dollars in fines and lose their license and potentially their livelihood the way those over a 0.08 now face.

Colorado, for example, already does something similar. A driver between 0.05 and 0.079 can be charged with a misdemeanor of driving while ability is impaired on the first three offenses and then it becomes a felony.

Many of the European countries with the 0.05 BAC also have administrative, rather than criminal, penalties attached to the lower threshold. So if we're following their lead, why not go all the way?

2 • Don't let local governments keep the fines.

Law enforcement rightly focuses on DUI enforcement because it does pose a grave threat to public safety. That shouldn't change.

But there is also an incentive for local police to target DUI because it can be such a cash cow for local coffers. Lowering the level to 0.05 intensifies the temptation for police to set up shop outside of local watering holes and watch the fish jump into the boat.

If public safety is the aim, then the money generated from fines for those busted under the new law doesn't need to stay with the local entities doing the enforcement.

Instead, send it to the Department of Public Safety, where it can be used to bolster training on field sobriety tests — which will be severely needed if officers are going to be asked to detect the mild impairment at 0.05.

While you're at it, use some of the money to train law enforcement how to avoid racial profiling, so the minority community is not unfairly targeted under the inherently subjective field tests under the new standard.

And maybe send some of the money to the state tourism office to try to tamp down the perception that Utah is hostile to anyone who has a glass of wine with dinner. It can't undo the damage, but it could, perhaps, minimize the harm.

3 • Clarify the liability for restaurants and bars.

When the 0.05 standard was debated, there was almost zero discussion of how it would impact bars and restaurants that serve alcohol. But under Utah's dram shop laws, an establishment that serves alcohol to someone later involved in a crash with serious injury or death can be legally liable for up to $2 million.

Law enforcement has admitted that it's basically impossible for them to tell from field sobriety tests when someone has eclipsed the 0.05 mark. So we certainly shouldn't expect that from waiters or waitresses or bartenders who are juggling dozens of patrons on any given night.

Even if restaurants are conscientious in trying to regulate how much patrons consume, you can bet that the insurance premiums they pay for their dram shop insurance will go through the roof.

So legislators should clarify that dram shop liability only applies above the current 0.08 standard.

4 • Gather the data.

If Utah is going to be the nation's guinea pig on the new 0.05 standard, we should insist on gathering reliable data. There are cultural factors at play in this state that aren't reflected in studies that have been done in Queensland or British Columbia when they enacted similar laws.

If, as proponents suggest, the law will cut down on alcohol-related accidents, then we should be able to see that in the numbers — although the most recent figures from 2013 tell us there were six alcohol-involved fatalities below the 0.08 standard, so don't count on seeing much impact.

The report should also look at the ethnicity and geography of drivers swept up under the new law, to ensure it is being enforced equitably across the state.

Put a two-year sunset date on the 0.05 standard and let the data drive the debate. If it works, then keep it. If it doesn't, then get rid of it.

Twitter: @RobertGehrke