DUI BLOG

With considerable media fanfare, Mothers Against Drunk Driving has unveiled its latest campaign:

WASHINGTON (November 20, 2006) – In a bold new effort designed to eradicate one of the nation’s deadliest crimes, Mothers Against Drunk Driving (MADD) today launched its national Campaign to Eliminate Drunk Driving, which aims to literally wipe out drunk driving in the United States…

That’s right: end drunk driving. How? Simple: with technology — primarily by requiring first offenders to install ignition interlock devices (IIDs) in their cars. Yet another naive and simplistic solution to a complex problem.

The following is an article I was invited to write in reply, published today in Business Week:

Technology Alone Won’t Tackle Drunk Driving

IGNITION INTERLOCK DEVICES PROMOTED BY MADD WILL DO LITTLE TO STOP PEOPLE FROM DRIVING WHILE INTOXICATED

Government statistics show that alcohol-related fatality figures have been essentially unchanged for the past decade — despite lowered blood alcohol levels, Draconian penalties, DUI roadblocks, legal presumptions of guilt and other assaults on the Constitution.

Recognizing a failed effort, MADD has unveiled with considerable fanfare its latest weapon in the “War on Drunk Driving”: the ignition interlock device (IID). The device is not new, of course: it has been in use in many states for several years (with notably little success) and versions are being developed by Saab, Toyota and Nissan for possible installation in future car models as standard equipment. There are, however, two basic reasons this newest “answer” to the drunk driving problem will fail as well.

First, IIDs are inaccurate, unreliable, easily circumvented, dangerous — and ineffective. Unlike the infrared spectroscopic breath instruments used by law enforcement, or even the less sophisticated handheld field units used by officers (deemed too inaccurate to be used in evidence), IIDs are primitive devices that are mounted along with the ashtray in the car’s dashboard — and subject to contaminants, cigarette smoke, vibrations from the road, etc. In any event, an intoxicated person could easily have someone else breath into the device, or simply borrow or rent antoher car. And because IIDs generally require periodic retesting of the driver while the car is underway, the risk from driver distraction alone poses a very real danger.

But how effective are IIDs in achieving MADD’s goal of lowering fatalities? In a study entitled An Evaluation of the Effectiveness of Ignition Interlock in California: Report to the Legislature of the State of California, the California DMV concluded:

The expected effect that an IID order/restriction issued by the court would result in a lower rate of subsequent DUI convictions was not observed. (p. 7)

The risk of a subsequent crash was higher for drivers installing an IID, compared to drivers not installing a device; drivers installing an IID had a risk of a subsequent crash that was 84% higher than drivers not installing an IID. (p. 10)

The results of this outcome study clearly show that IIDs are not effective in reducing DUI convictions or incidents for first DUI offenders … Because there is no evidence that interlocks are an effective traffic safety measure for first DUI offenders, the use of the devices should not be emphasized. (p. 22)

The second reason the IID will fail is that, as with other attempts to bring down the alcohol-related fatality figures, the IID does not address the underlying problem.

The risk of DUI-caused fatalities lies not with the social drinkers who represent the vast majority of drivers over .08%, most of whom are in the .08% – .15% range. My own experience from prosecuting and defending thousands of DUIs is that those who cause injury and death on our highways are usually fairly identifiable: the problem alcoholic. This client can usually be identified by two factors: (1) the blood-alcohol level is very high, commonly over .20%, and (2) he/she is a recidivist — that is, a repeat offender.

Thus, the first step is to identify the danger — the relatively small number of “problem drinkers” — and to stop filling our jails with social drinkers.

The second step is to decide what to do with this problem drinker/driver. Our present approach is purely punitive. But if we simply throw the alcoholic in jail for 6 months, what is accomplished? We’ve made the streets safe from him for 6 months — and on the day he gets out, he drives to the nearest bar and resumes his drinking. We have made no real progress: Our jails continue to burst at the seams, and the fatalities continue at their predictable levels.

I would suggest a rehabilitative approach rather than a punitive one, an approach which would actually take a step toward solving the problem rather than waiting for the vicious cycle to begin again. By now, most experts recognize that alcoholism is a disease, not a choice (the “choice” to drive, of course, is made by an inebriated person, and thus a Catch-22). And you don’t treat a disease with incarceration.

We recognize legal incapacity due to mental disease: the plea or verdict is “not guilty by reason of insanity”. The defendant is not simply set free, but is hospitalized for treatment of the disease until he is well. Why not treatment for problem drunk drivers who suffer from the (largely genetic) disease of alcoholism? In other words, why not recognize a plea of “not guilty by reason of alcoholism”? Again, this does not mean he “gets off”: he will be ordered to undergo rehabilitative therapy. In serious cases, mandatory commitment to a rehabilitative facility may be appropriate.

The choice is fairly simple: Do you want vengeance or safety? Would you prefer to have a chronic drunk driver off the road for a few months — or in control of his disease?

Taylor is a former prosecutor, Fulbright law professor, and author of the standard text “Drunk Driving Defense,” 6th ed.; his 11-attorney California DUI law firm is the largest of its kind in the nation.

Ever vigilant in the war on drunk driving, the California Highway Patrol is experimenting with interesting new new sobriety checkpoint tactics.

For many years now I’ve written and lectured extensively on drunk driving litigation –on the science of blood and breath alcohol analysis, the flaws in breathalyzers, the ineffectiveness of field sobriety testing. In recent years, however, my focus has increasingly shifted to the gradual erosion of constitutional rights in DUI cases.

So who cares about drunk drivers and their constitutional rights?

You should care. The importance of what is happening in DUI law and procedures can be summarized in one word: precedent.

We are a nation of laws, more specifically, the common law inherited from the British legal system. Unlike most nations, which use some version of the French civil law where laws are found in codes, we look to the precedent of judicial decisions interpreting statutory law. When a court looks at the facts in a specific case, it applies not only statutes but decisions in appellate court cases to determine what the law is. The genius of this common law system of precedent is its flexibility; its flaw is what many call "judicial legislation".

The flaw becomes particularly noticeable when dealing with politically unpopular subjects. And few topics are as politically "incorrect" as drunk driving. Judges are, after all, politically sensitive animals who want to be reelected. Put another way, it is very easy to rule in favor of the prosecution in DUI cases — particularly when powerful pressure groups like Mothers Against Drunk Driving (annual revenues of over $47 million) are so vocal in elections and in legislatures. There are few advocates for the accused or the Constitution during election campaigns.

This judicial attitude is not limited to judges considering re-election. A majority of the U.S. Supreme Court has been consistent in depriving the accused in DUI cases their constitutional rights. To mention a few examples:

Michigan v. Sitz.The Court held that sobriety roadblocks were permissible — despite the fact that there is no exception in the Fourth Amendment for stopping citizens without reasonable suspicion.

South Dakota v. Neville. The Fifth Amendment right against self-incrimination was held inapplicable in drunk driving cases (refusing to submit to testing).

Blanton v. North Las Vegas. Even though punishable by six months in jail, fines and diver’s license suspension, there is no Sixth Amendment right to a jury trial in a drunk driving case.

California v. Trombetta. Although police normally have to save evidence, they do not have to save breath samples in DUI cases (even though it is easy and inexpensive to do so).

So…we have seen a steady flow of appellate decisions at all levels taking away the constitutional rights of those accused of DUI. Again, so what?

Again, precedent: What happens today to a citizen accused of DUI can happen tommorrow to a person accused of any other crime. If police can set up roadblocks to check everyone for intoxication, they can set them up to search for drugs (which, incidentally, has already happened). If a citizen accused of DUI has no right to a jury of his peers, then the precedent exists to deny the right to citizens accused of tax evasion or any other offense.

The danger of precedent in the DUI field is not limited to judicial decisions. Legislatures are also guilty of passing unfair and/or unconstitutional — but politically popular — statutes. We have certainly seen a seemingly unending series of unfair and unconstitutional statutes across the country in recent years: immediate license suspensions at the police station; double jeopardy/punishment (license suspension and criminal prosecution); so-called per se laws (.08% blood-alcohol is illegal, even if sober); presumption of guilt (if .08%, presumed to be under the influence; if .08% when tested, presumed to be .08% when driving); ad nauseum. And having passed such laws relating to DUI, they are less reluctant to do so in other areas as well.

So who cares about DUI? To paraphrase, "First they came for the drunks, but I was not a drunk so I did not speak up….."

From today’s Los Angeles Times, the latest “DUI exception to the Constitution“:

CHP Wants You on Call, Just Briefly

As part of a statewide campaign to reduce alcohol-related deaths, the CHP and the State Department of Transportation are urging motorists — via overhead freeway signs — to call 911 to report drivers they suspect have been drinking….

Although state lawmakers recently outlawed the use of handheld cellphones while driving, (CHP Commissioner Michael) Brown said reporting a possible drunk driver falls under the law’s emergency exception.

When an officer responding to a 911 call takes a drunk driver off the road, “we have saved a life”, Brown said.That same perceived danger also pursuaded the California Supreme Court to allow officers to stop suspected drunk drivers based solely on anonymous tips…

The court’s four-member majority cited “public safety and common sense” in applying a lesser standard to police stops involving DUIs. Anonymous tips for other suspected infractions are generally not enough for police intervention.The three dissenting justices said police should have to witness erratic behavior, as they would in most other criminal situations, before taking action…

It’s “common sense” to say violating the cellphone law is ok because you’ve “saved a life” and therefore it’s an “emergency”? It’s “common sense” to say that anonymous tips are too unreliable to justify police action — except with DUIs?

The Constitution is trumped again, this time by the “common sense exception” to the Fourth Amendment.

In my post yesterday concerning seatbelt roadblocks, I mentioned the Supreme Court’s approval of DUI roadblocks on the grounds that the Fourth Amendment was outweighed by the Government’s interest in reducing the "slaughter on our highways".

I’ve received a number of replies saying, essentially, "Well, at least they are saving lives, right?".

Wrong.

Question: If DUI roadblocks are so effective, why have the Government’s own "alcohol-related fatality" figures remained essentially unchanged for the past ten years — since shortly after the Court gave law enforcement the go-ahead? When the U.S. Supreme Court in Michigan v. Sitz decided to ignore the Constitution, it was reversing a Michigan Supreme Court decision which found that DUI roadblocks were a Fourth Amendment violation. As the dissenting justices in the Sitz decision noted, the Michigan decision was based upon studies which concluded that

…the net effect of sobriety checkpoints on traffic safety is infinitesimal and possibly negative. Indeed, the record in this case makes clear that a decision holding these suspicionless seizures unconstitutional would not impede the law enforcement community’s remarkable progress in reducing the death toll on our highways.

Ironically, then, that "remarkable progress" appears to have actually come to a halt shortly after the U.S. Supreme Court approved the use of roadblocks.

(Note: When the Sitz case was sent back to Michigan, that state’s Supreme Court again reversed the conviction, this time on the grounds that DUI roadblocks violated the state constitution. As of today, eleven states protect their citizens from roadblocks.)

You knew it was coming:

Chicago, IL Nov. 20 – For the first time in Illinois, local and state law enforcement officers will have nighttime seatbelt enforcement zones to ensure that drivers are buckling up, the Illinois Department of Transportation announced Tuesday.

The department’s division of traffic safety will pay $1 million in overtime to police officers enforcing the state’s seat belt law…

This year, 204 law enforcement agencies around Illinois will set up 360 nighttime seat belt enforcement zones around the holidays, in addition to 658 zones set up during the daytime. Officers will operate the zones much like alcohol checkpoints and will look at whether drivers are wearing seat belts.

You may recall my previous discussion of the U.S. Supreme Court’s narrow decision in Michigan v. Sitz wherein DUI roadblocks (or, more politically correct, “sobriety checkpoints”) were constitutionally challenged. Chief Justice Rehnquist admitted that they constituted searches in apparent violation of the Fourth Amendment, but concluded that this was just a “minimal intrusion” into our rights which was outweighed by the fact that “The increasing slaughter on our highways . . . now reaches the astounding figures only heard of on the battlefield”.

And after seat belts, what next? Registration and proof of insurance? Identification roadblocks? Don’t laugh: the Supreme Court has twice already said that “a similar roadblock to verify driver’s licenses and registrations would be permissible to serve a highway safety interest”. See Delaware v. Prouse and Indianapolis v. Edmunds.

So where does it stop? This is what is known in the legal trade as precedent, also known as “opening the door”: it does not stop.

(Thanks to Radley Balko at Reason .)

Just in from the battlefront in Riverside County, California:

Riverside, CA Nov. 21 (AP) – The California Highway Patrol’s Inland assistant chief was arrested by his own CHP officers for drunken driving after allegedly crashing his CHP-issued Ford Crown Victoria into a parked car.

Michael Maples, 58, was arrested at his home in Reche Canyon about 11:15 p.m. Thursday after he lost control of the Crown Victoria and struck the car in his driveway, CHP Capt. Sharon Baker said Monday.

Indio, CA Nov. 21 (AP) – A veteran Riverside County sheriff’s sergeant was charged with two felony drunken driving counts for a major injury off-duty crash in Rancho Mirage…

Sgt. Richard Kamstra, who is also charged with a special allegation of causing serious injuries to a victim, surrendered Monday, district attorney’s spokeswoman Ingrid Wyatt said. He was booked and released on $50,000 bond.

Kamstra, whose blood-alcohol level was nearly three times the legal limit of 0.08 percent, was involved in a Sept. 24 three-car wreck at Dinah Shore and Mission Hills. Rancho Mirage resident Gene Fasciana suffered major injuries to his left leg and a teenage boy was also injured.

“I have seen the enemy…and he is us.” (With apologies to Pogo and Walt Kelly.)

Individuals convicted of DUI are increasingly required to have an ignition interlock device (IID) installed (at their expense) in their cars — and, as mentioned in yesterday’s post, eventually requiring them as standard equipment in all vehicles. These notoriously inaccurate and unreliable gizmos are designed to prevent the ignition from working until after the driver has breathed into a mouthpiece and registered alcohol-free (although it takes little imagination to realize that a drunk driver can start the car by simply having his passenger breathe into the device).

This latest weapon in the "war on drunk driving" has been adopted in many states with the strong lobbying of MADD — and of manufacturers who make a huge profit on the devices. Consider a story in today’s (March 16, 2005) Arizona Republic:

First-time DUI offenders could agree to equip their vehicles with an ignition interlock device to prevent drunken driving rather than face suspended driver’s licenses under a bill that breezed through the Senate on Tuesday…..

Alberto Gutier, a former highway safety director lobbying for the Arizona Interlock Distributors Association, said increased sales isn’t the bill’s purpose. (Emphasis added.)

"It’s not about expanding the market, it’s about preventing drunk driving," Gutier said.

The bottom line, of course, is: Do IIDs prevent drunk driving? Do they make our streets safer? MADD claims that their "research" shows they do:

Interlocks have been shown to be effective in Maryland, Alberta, California and elsewhere with results ranging from 50 to 90 percent reductions in subsequent offenses by those offenders who were assigned interlock devices, compared with those who were not…..

While interlocks are not the only solution, as offenders tend to go back to their old ways once the device is off of the vehicle, they certainly keep the roads safer while these devices are in place.

Effective in California? Keep the roads safer? The California Department of Motor Vehicles released a study entitled An Evaluation of the Effectiveness of Ignition Interlock in California: Report to the Legislature of the State of California. Among their conclusions:

The expected effect that an IID order/restriction issued by the court would result in a lower rate of subsequent DUI convictions was not observed. (p. 7) The risk of a subsequent crash was higher for drivers installing an IID, compared to drivers not installing a device; drivers installing an IID had a risk of a subsequent crash that was 84% higher than drivers not installing an IID. (p. 10) The results of this outcome study clearly show that IIDs are not effective in reducing DUI convictions or incidents for first DUI offenders …

Because there is no evidence that interlocks are an effective traffic safety measure for first DUI offenders, the use of the devices should not be emphasized. (p. 22)

Facts notwithstanding, MADD continues its campaign for mandatory installation of ignition interlock devices.

Coming soon to a car dealer near you…

New Tech Push Against Drunk Driving

MADD seeks spread of ignition interlocks that prevent driving
with high blood alcohol levels

CBS, Nov. 20. You have a few drinks, climb behind the wheel of your car, turn the key and — nothing. The engine doesn’t turn over, the car doesn’t move.

If Mothers Against Drunk Driving has its way, a device that checks a driver’s alcohol levels will be mandatory in cars owned by anyone ever convicted of drunk driving, and, eventually, every automobile…(Emphasis added.)

There are nearly 1.5 million drunken driving arrests last year, but only 100,000 ignition interlocks are currently in use, so even tagging first offenders isn’t really enough, says MADD…

"There are going to be different types of technology, such as trans-dermal detection that will have sensors to detect the blood alcohol level of an individual before he starts the car, so it doesn’t allow the car to start," said (MADD President Glynn) Birch.

Another system has a Breathalyzer tube that the driver must blow into before starting the car, The (New York) Times reports. A third detects that a car is weaving down the road, and possible driven by an impaired driver.

"Biometric detection or identification will work like a thumbprint to identify and also give us an idea of who the driver is," Birch said.

Those systems might eventually test all drivers, whether or not they have ever been convicted of drunken driving…

The New York Times reports that "Two companies have introduced products that hint at future strategies. Saab, which is owned by General Motors, is testing in Sweden a Breathalyzer that attaches to a key chain and will prevent a car from starting if it senses too much alcohol…" (Note: Toyota and Nissan have already announced tentative plans to develop and install IIDs as standard equipment in future models.)

(Thanks to David R. Teddy and Lenny Stamm)

Just when I thought the insanity could go no further:

Court Says Drunk Driving Violated Life Policy

Richmond, Va. Nov. 18 – ING Groep NV, the largest Dutch financial-services company, can refuse to pay a life insurance claim from the widow of a West Virginia man who drank before dying in a car crash, a federal appeals court in Richmond, Va., ruled.

Under terms of the policy, claims are payable only if an accident is "unexpected," the three-judge panel said. The man’s blood-alcohol level was 50 percent higher than the legal limit, so he knowingly put himself at risk, the court said.

So the widow gets nothing because the husband was .12% and….death was to be expected? So am I "at risk" if I’m speeding? Riding a motorcycle? Why is sky diving not risky, but DUI is? Or are we looking at yet another example of the "DUI exception"?