I’ve argued in past posts that the criminal justice system’s punitive approach to the drunk driving problem has proven ineffective (see “MADDness”). Pushed to come up with a better approach, I later suggested that the primary danger is not the social drinker but the recidivist/alcoholic — and that throwing him in jail accomplishes nothing (see “Time for a Change”). The punitive model does not work with the alcoholic; the rehabilitative model is the only one that makes sense.
I was reading an email today from a very sharp DUI attorney (and friend and fellow Berkeley alum) in Arizona, Jeffrey Siirtola. Jeff suggested that requiring DUI suspects with physical infirmities to perform field sobriety tests was a violation of the Americans with Disabilities Act of 1990. Similarly, punishing a person with impaired lung capacity for being unable to breath hard enough to provide a breath sample.
Makes sense. Later, I asked myself: What about alcoholics? Isn’t alcoholism a disease or condition — and aren’t they being discriminated against by being thrown in jail because of their condition?
No, I argued back, they are being thrown in jail because of their condition and choosing to drive a vehicle.
But wait a minute, isn’t that a Catch-22? We outlaw DUI because mental and physical facilities are impaired, so wouldn’t the decision to drive be impaired by the alcohol to which the alcoholic is addicted?
Now, before you decide I’ve finally lost it, consider….
1. Alcoholism is a recognized disease.
2. The Americans with Disabilities Act applies to alcoholics: “…alcoholics are individuals with disabilities, subject to the protections of the statute.” (28 CFR Part 35, Sec. 35.13, Department of Justice, Offices of the Attorney General)
3. The provisions of the ADA apply to “any State or local government; any department, agency, special purpose district, or other instrumentality of a State or States or local government” (supra) – and, thus, to police, prosecutors and courts.
4. The criminal justice system presently does not distinguish between alcoholics and those who do not suffer from the disability.
5. Thus, the ADA requires that cops, prosecutors, judges make reasonable accomodation for this disability….unless this would create a “direct threat” to the safety of the public.
Ahhh, public safety…There goes the ADA argument, right?
No. It would be difficult to argue that attempting to rehabilitate chronic drunk drivers constituted a “direct threat” to public safety. In any event, the Act provides that this reservation applies only if the threat “…cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services”. And can it be eliminated by modification of policies, etc.? Yes: modify the sentencing by “provision of auxiliary aids or services” — i.e., rehabilitative services rather than jail. “Direct risk” to the public is further minimized by temporarily depriving the alcoholic of driving privileges, as is already done in DUI cases.
Thus, the present method of dealing with alcoholics charged with DUI may well be a violation of the Americans with Disabilities Act — with the attendant possibilities of very large civil law suits.
The bottom line, however, is that society would be better off — safer — if the problem of alcoholics who drink too much and drive was addressed by a rehabilitative approach rather than a punitive one.