DUI BLOG

There's an old constitutional law maxim that says "Any ambiguity in a law is to be interpreted in favor of the accused"…..except, apparently, in drunk driving cases.

I've posted in the past about statutes prohibiting driving a vehicle under the influence of alcohol being applied to bicycles, lawn mowers, wheelchairs — even horses. Now a North Carolina appellate court has decided that scooters are also "vehicles" in the great DUI dragnet:

Court applies DWI law to tipsy scooter driver

Associated Press. Don't drink and scoot. Even operators of stand-up electric scooters can be convicted of drunken driving, a state appeals court decided Tuesday.

Kevin Michael Crow of Youngsville challenged the law after being convicted last year of driving while impaired. He was pulled over on his scooter after a Hyde County deputy saw him run a stop sign on Ocracoke Island and weave erratically, according to the state Court of Appeals. The Sheriff's Office determined that Crow's blood-alcohol level was 0.13 percent, higher than the legal limit for drivers, 0.08 percent…

About 100 people were near Crow's scooter, Chief Judge John Martin wrote. Crow's "behavior subjected these pedestrians and motorists to a high degree of danger," he said.

Doubtful, but how does that bear on the issue of whether a scooter is a "vehicle"? And whatever happened to the rule that ambiguous laws must be interpreted in favor of the accused?

Some police agencies have now decided you don’t have to be legally drunk to be arrested for drunk driving. As Radley Balko has posted, the feds’ National Highway Traffic Safety Administration is now targeting drivers with less than .08% blood-alcohol in its recent tax-funded national media campaign. In apparent response, some police departments are apparently ignoring the law and applying their own standards for arrest:

Local Lawmen Enforcing ‘Buzz Driving is Drunk Driving’

 WESLACO, TX December 27  Police warn driving while buzzed can be as dangerous as driving when legally drunk. A national campaign promotes the new slogan, "Buzz driving is drunk driving".

Many law enforcement agencies are taking the slogan seriously. DPS Trooper Johnny Hernandez tells NEWSCHANNEL 5, "Just because you don?t blow a 0.08, you can still be taken to jail."….

Most drivers who spoke with NEWSCHANNEL 5 were surprised to find out you can go to jail even if your blood alcohol level is below the legal limit. Some said they don’t think it’s right. But Trooper Hernandez said, "Our job is to make sure our streets are safe. That’s all. To make sure everybody is having a safe and happy holidays."

So if you drinking – and buzzing – but think you can still drive, you might want to think again and find another way home. Hidalgo County District Attorney Rene Guerra tells NEWSCHANNEL 5 even if a driver goes to jail, without a .08 blood alcohol level it’s not likely he will see the inside of a courtroom.

So if he won’t "see the inside of a courtroom", why are the police arresting him? When did the police decide to enforce their own standards?

The following news editorial is yet another example of the prevailing view that there is a “DUI Exception to the Constitution“:

Hampton Roads, VA December 21. The law that protects the public from drunken drivers is under assault, and one of the jobs facing the General Assembly when it convenes in January is to shore it up.

The assault comes from legal eagles who have hit on a way to attack the law that threatens to put their clients, accused of drunken driving, away. The law is written so driving with a blood alcohol level of 0.08 or above is illegal – in other words, the law presumes that anyone with a BAC that high is impaired.

This is a good presumption, based on tons of empirical data. But this summer, a lawyer in Fairfax County dreamed up a new defense: the application of an obscure 1985 Supreme Court ruling that says prosecutors must prove all elements of a crime. The lawyer got General District Court Judge Ian O’Flaherty to buy the argument that the presumption of impairment at a BAC of 0.08 runs afoul of this ruling by relieving prosecutors of the obligation to prove impairment. Instead, the law presumes guilt based on blood alcohol reading and shifts to the defendant the burden of proving he was not impaired, denying the constitutional presumption of innocence until proven guilty….

O’Flaherty also has doubts that the results of a breath test 90 minutes or more after a driver is picked up represent the blood alcohol level while actually driving. Throwing out the well-established scientific evidence that a BAC of 0.08 or above constitutes impairment gives drunken drivers a free ride. It puts them back on the street with no punishment….

Last year, 343 people died in vehicle accidents involving alcohol in Virginia, and 7,911 were injured. These are not legal technicalities….

The arguments that these despicable “legal eagles” are making are perfectly valid, as I have repeatedly discussed in past posts (Whatever Happened to the Presumption of Innocence?):

(1) The presumption of innocence that is a cornerstone of our constitutional protections does not permit the law to require a defendant to prove his innocence simply because a highly unreliable machine says his blood-alcohol level is .08% or higher. By way of example, would a defendant be required to prove he is innocent of burglary if fingerprints were found on the window sill of the house?

(2) Similarly, it is a scientific fact that blood-alcohol levels do not remain constant: they rise for anywhere from 1/2 hour to 4 hours after ingestion, and then begin to dissipate — so why a legal presumption that the level was the same when driving three hours before testing?

In fact, why is a legal presumption necessary at all? Why not simply provide the evidence of blood-alcohol analysis, let the experts testify to what that means, and then let the jury decide — exactly as it was done years ago before MADD began getting new laws passed which greatly facilitated convictions?

The writer of the editorial claims that this is “a good presumption, based on tons of empirical data” (none of which is mentioned). If so, why not just present that data to the jury?

Answer: Because it isn’t so. The simple fact is that no two humans are alike — and we each vary in our individual tolerance to alcohol. And “tons of empirical data” have clearly established this; one person is intoxicated at .07% while the next is unimpaired at .12%.

Problem: How does a prosecutor prove what a defendant’s individual tolerance is? He can’t. Solution: Pass a law saying he doesn’t have to — the defendant has the burden of proof.

Incidentally, recognizing constitutional rights in this instance certainly does not “give drunken drivers a free ride”. Any person with a test result of .08% or higher will almost always be charged with two crimes: (1) driving under the influence, and (2) driving with .08% or higher. Because of the “DUI Exception”, this gives the prosecutor two shots at a citizen accused of drunk driving: If he loses on the DUI charge, he can still win on the .08 charge — and since a defendant cannot be punished twice, the end result is no different. (The individual who wrote the editorial, by the way, exhibits the ignorance so typical of the MADD-driven media. He writes that “The law is written so driving with a blood alcohol level of 0.08 or above is illegal – in other words, the law presumes that anyone with a BAC that high is impaired.” In fact, “the law is written” so that there are two separate laws, as explained above, and the blood-alcohol level results in a presumption of impairment in only one; in the other, the blood-alcohol level is the crime.)

(Thanks to David Teddy of North Carolina.)

Latest news from the front….

Copter to Spot DUI Suspects

Pasadena Star News  Pasadena, CA, December 21 - Observers in a Pasadena police helicopter will search for drunken drivers and help arrest them this holiday season as part of a new enforcement program, officials said Tuesday….

Not be be outdone, nearby Glendale is said to be considering low-flying drones, while MADD  has been reported lobbying in Sacramento for breathalyzer-equipped HumVees and armed National Guardsmen at DUI roadblocks.


(Thanks to Jeanne Pruett of RIDL.)

The recent awareness of Washington D.C.’s “zero tolerance” drunk driving laws has apparently finally triggered a long-awaited backlash.  Although an encouraging sign, the factor most important to the politicians appeared to be the financial impact on local businesses — not the inequity of arresting sober people for DUI. 

Perhaps in response, I’ve received a  number of inquiries about where we go from here — particularly the impact on MADD’s drive toward Prohibition.  This is a topic I addressed in a post a few months ago, and perhaps bears repeating…..

I gave a lecture to a national organization of attorneys last week in which I was asked, among other things, to anticipate the future course of DUI laws in the United States.  Bearing in mind the words of Adlai Stevenson (“We can chart our future clearly and wisely only when we know the path which has led to the present”), I predicted the following…..

DUI Laws
The Past:  The original laws simply outlawed driving while impaired.  With the arrival of primitive breathalyzers, and the counsel of the American Medical Association,  impairment was presumed with a blood-alcohol concentration (BAC) of .15%.  Over the years this was dropped to .10%, then .08%, and finally the laws were added making the BAC — not impairment — the offense.  There are now bills before state legislatures to drop it to .05%.  So-called “zero tolerance” made it a crime for drivers under 21 to have even .01% BAC.

The Trend:  From focusing on actual impairment, to facilitating arrests and convictions by focusing on artifical BAC levels — and, finally, to the mere presence of alcohol.  The emphasis has shifted from addressing the danger (impaired drivers) to facilitating arrests and convictions. 

The Future:  The “zero tolerance” laws will be applied to drivers of all ages.  Criminal liability will be expanded to include attempted drunk driving (regardless of lack of specific intent), as well as vicarious liability: accomplices (“aiding and abetting”), conspiracy and so-called “Dram Shop Act” liability (providing a drink to someone who may drive).

Evidence
The Past:  Originally, the arresting officer gave his opinion of impairment based upon his observations of driving and symptoms, as well as field sobriety tests.  The emphasis shifted to increasingly sophisticated breathalyzers and to blood tests administered by nurses or technicians.  However, portable and handheld breath testing devices have more recently been used at the scene to determine probable cause to arrest; the later test on a more sophisticated breathalyzer at the station continues to be used as evidence in court.  Some courts are beginning to accept the portable units into evidence.

The Trend:  An increasing emphasis on money and expediency rather than accuracy and reliability.

The Future:  Evidentiary breathalyzers will be replaced with simpler, cheaper (and less accurate) handheld units at the scene of arrest.  Blood samples will be obtained by the officer with his syringe at the scene.  Saliva tests may gain acceptance.

Constitutional Rights
The Past:  There has been a parade of adverse Supreme Court decisions and a steady erosion of constitutional rights in drunk driving cases — what I have called “The DUI Exception to the Constitution”.  These have included approval of sobriety roadblocks (Sitz v. Michigan); double jeopardy (immediate license suspensions followed by criminal prosecutions); right to counsel; self-incrimination (Neville v. South Dakota); presumptions of innocence (if .08%, then presumed under the influence; if test taken within 3 hours of driving, BAC presumed to be same as when driving); confrontation; jury trial (Blanton v. North Las Vegas); etc.

The Trend:  From the protection of the citizen from police violations, to the protection of the police from legal interference.

The Future:  Increasing loss of constitutional protection – notably, the complete loss of the right to a jury trial.  With the clear focus on cost and expediency, DUI cases will be handled in an administrative setting as license suspensions currently are:  the two procedures will simply be consolidated, although criminal penalties will remain.  There may be no judge, but only an administrative hearing officer.

Federal Presence
The Past:  DUI laws have always been a state-prescribed crime.  With the prompting of special interest groups like MADD (Mothers Against Drunk Driving) and the desire of politicians to curry favor with voters, this has gradually changed.  Using a “carrot and stick” approach with highway funds, the federal government has forced states to change their laws and penalties in such ways as:  “per se” laws; .08% BAC; “zero tolerance” for drivers under 21; automatic license suspensions; standardized field sobriety tests; federally approved lists of breath testing machines.

The Trend:  The federalizing of a traditionally state offense.

The Future:  With the use of the Constitution’s Commerce Clause, DUI laws and penalties will become “federalized”.  However, without the ability (or inclination) to arrest and prosecute these crimes in the federal courts, the states will be left to continue processing them in their own courts or administrative hearings.

The New Prohibition
The Past:  The Eighteenth Amendment to the Constitution was primarily a woman’s movement that ended as a failed experiment.  Since then….The BAC levels for DUI have steadily dropped from .15% to .08%, and there are efforts to reduce it further.  Drivers under 21 already face .01% — alcohol prohibition as to driving. 

The Trend:  In 1999, MADD (primarily a woman’s movement) formally changed its mission statement from drunk driving to include “the problem of underage drinking” (not underage drinking and driving).  The “problem” of drinking at all is on the horizon.

The Future:  The movement will again fail, this time without obtaining a constitutional amendment.  This country needs alcohol and drugs too much.

I’ve written in the past how DUI arrests have become an increasingly important source of revenue for local governments, providing incentive for making more arrests — whether justified or not.  (See “How to Make a Million in the DUI Business” and “DUI: Government’s Cash Cow”).  Reader response has included a fair number of those doubting that law enforcement is driven by the need to raise more money for the local coffers.

So what would happen if the local governments getting the fines and fees from DUIs didn’t get the money?  What if the money went instead to the county or state?  That shouldn’t affect the number of arrests, should it?

Cities lose out on DUI revenue

Money from criminal traffic cases now goes to the county. Tampa lost almost $1-million.

St. Petersburg Times, December 9.  The money stopped coming more than a year ago, but many Florida cities are just figuring it out.

Tens of millions of dollars in fines from DUI and criminal traffic cases that once went to cities and towns go to county clerks instead. It’s a result of 2004 legislation that put the state in charge of running Florida’s courts.

Now cities are struggling with the impact.

The cuts have surprised city leaders who believed the changes would not burden municipal budgets. Revenue from those fines has fallen 16 to 45 percent, cities report. Tampa lost $950,000 last year alone, according to the Florida League of Cities.

The significant losses have prompted some city officials to question whether expensive and time-consuming DUI patrols can continue as a high priority without revenue to pay for them.

“In theory, we are going to still enforce DUI laws, but it does send a message that maybe it’s not as important,” said Clearwater City Council member Bill Jonson….

The Arizona Daily Star reports on a public display in Tucson erected by Mothers Against Drunk Driving.  The display consists of a car crushed in a DUI-related accident, along with photos of drunk driving victims.  Members of MADD were handing out ribbons to wear. 

Nothing unusual there…..except that the display happened to be right outside the county courthouse, where two DUI trials were underway. 

"We weren't out soliciting anyone specifically", MADD member Theresa Babich explained to a reporter.

Noblesville, Ind., December 4 — When a sheriff’s deputy warned Jennifer Marshall to take a sobriety test or face a trip to jail, her first thought was to call her lawyer. When the deputy thought she showed illegal resistance by refusing to drop her cell phone, he proclaimed "Taser time" — and dropped her with an electrical jolt from his stun gun….

After cooperating with a series of physical sobriety tests and giving inconclusive breath tests, the trouble begins when (Deputy) Lockhart, who is more than 6 feet tall and weighs more than 250 pounds, tells Marshall (5 feet 5 inches, 110 pounds) that she will be taken to jail if she does not submit to a blood draw. "Do you want to take a chemical test?" he asks. "I don’t know what that means," she replies. "I need to make a phone call, and I deserve that."

As she leans into her car to get her phone, the officers simultaneously deny her permission to make a call. When she persists, (Deputy) Horine grabs her as Lockhart announces "Taser time" and reaches for the weapon.

As Horine pushes her to the back of her Honda Accord, Marshall screams for help, is bent over the trunk of her car by Horine, and then slumps toward the ground after Lockhart commands her to "Drop the phone," puts the Taser against her pinned arm, and applies an electrical jolt. "Oh, my God! Oh, my God!" she yells….

(Sheriff Doug) Carter stands by Lockhart…"He’s a good officer," the sheriff said. "And he’s extremely dedicated to his community."

(Note: For those who still believe things like this just don’t happen in DUI cases, watch the video of the incident. Thanks to Randy Bennett of Indianapolis.)

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The United States Constitution grants citizens certain rights — and for years now the courts have busily taken scalpels to that great document. One of the favored methods is to play word games. A decision last month by the Arizona Court of Appeals is a classic example….

In State ex rel. Verburg v. Jones, the Court was confronted with a problem: how to permit prosecutors to use a defendant's refusal to incriminate himself with field sobriety tests against him in trial. At trial in municipal court, the defendant objected to the prosecutor using his refusal as evidence of guilt. The trial judge ruled against the defense, the officer told the jury about the refusal, the prosecutor argued it as self-incriminating evidence of guilt, and the defendant was convicted. The defendant appealed to the Superior Court — which promptly reversed the conviction. The prosecution then went up to the Court of Appeals.

The problem: the Arizona Court of Appeals desperately wanted to reverse the superior court and permit prosecutors in Arizona to use refusals against defendants. The old solution: word games.

We hold that a defendant's refusal to submit to field sobriety tests can be admitted into evidence in a DUI trial. Our holding rests on the proposition that, when supported by reasonable suspicion that a DUI offense has been committed, the administration of a field sobriety test is a lawful search. If the search is lawful, then the suspect has no legal right to refuse it or interfere with it. If the suspect has no right to refuse, then evidence of his refusal is admissible.

Our holding runs counter to a popularly held notion that a suspect can refuse field sobriety tests. If that idea were correct 'if a suspect has a legal right to refuse field sobriety tests' then evidence of the refusal would be inadmissible because it would unfairly penalize the exercise of the constitutional right to be free from unreasonable searches and seizures….

A suspect's capacity to withhold his cooperation is not the same as a legal right to grant or withhold his consent. As with breath tests, which also require the suspect's active cooperation, the suspect has the physical power but not the legal right to refuse field sobriety tests…."[The implied consent] law does not give motorists charged with DUI the right to refuse the test; it only gives them the power to refuse and provides for certain consequences of such a refusal. . . .".

Simple: field sobriety tests such as walk-and-turn or one-leg-stand are not actually tests — they are searches! And since they are searches, then an officer can conduct a search if he has probable cause — and since a suspect has no constitutional right to refuse a legal search, then….Presto! We have an illegal refusal! And it's illegal because, well, it's illegal to refuse a breath test, right? [Of course, it's illegal to refuse a breath test because the implied consent law makes it so; there is no such law requiring a suspect to take a field sobriety test.]

"When I use a word", Humpty Dumpty said, in a rather scornful tone, "it means just what I choose it to mean — neither more nor less."

"The question is", said Alice,"whether you can make words mean so many different things."

"The question is", said Humpty Dumpty, "which is to be master — that's all."

(With thanks to Lewis Carroll and Allen Trapp.)