DUI BLOG

The following is excerpted from a refreshing breath of reason provocatively entitled "Legalize Drunk Driving". It was written six years ago by Llewellyn H. Rockwell, Jr., of the Ludwig von Mises Institute, in response to the federally-coerced adoption by the states of .08% laws:

…What precisely is being criminalized? Not bad driving. Not destruction of property. Not the taking of human life or reckless endangerment. The crime is having the wrong substance in your blood. Yet it is possible, in fact, to have this substance in your blood, even while driving, and not commit anything like what has been traditionally called a crime.

What have we done by permitting government to criminalize the content of our blood instead of actions themselves? We have given it power to make the application of the law arbitrary, capricious, and contingent on the judgment of cops and cop technicians. Indeed, without the government’s "Breathalyzer," there is no way to tell for sure if we are breaking the law.

Sure, we can do informal calculations in our head, based on our weight and the amount of alcohol we have had over some period of time. But at best these will be estimates. We have to wait for the government to administer a test to tell us whether or not we are criminals. That’s not the way law is supposed to work. Indeed, this is a form of tyranny.

Now, the immediate response goes this way: drunk driving has to be illegal because the probability of causing an accident rises dramatically when you drink. The answer is just as simple: government in a free society should not deal in probabilities. The law should deal in actions and actions alone, and only insofar as they damage person or property. Probabilities are something for insurance companies to assess on a competitive and voluntary basis.

This is why the campaign against "racial profiling" has intuitive plausibility to many people: surely a person shouldn’t be hounded solely because some demographic groups have higher crime rates than others. Government should be preventing and punishing crimes themselves, not probabilities and propensities. Neither, then, should we have driver profiling, which assumes that just because a person has quaffed a few he is automatically a danger.

In fact, driver profiling is worse than racial profiling, because the latter only implies that the police are more watchful, not that they criminalize race itself. Despite the propaganda, what’s being criminalized in the case of drunk driving is not the probability that a person driving will get into an accident but the fact of the blood-alcohol content itself. A drunk driver is humiliated and destroyed even when he hasn’t done any harm…

We need to put a stop to this whole trend now. Drunk driving should be legalized. And please don’t write me to say: "I am offended by your insensitivity because my mother was killed by a drunk driver." Any person responsible for killing someone else is guilty of manslaughter or murder and should be punished accordingly. But it is perverse to punish a murderer not because of his crime but because of some biological consideration, e.g. he has red hair.

Bank robbers may tend to wear masks, but the crime they commit has nothing to do with the mask. In the same way, drunk drivers cause accidents but so do sober drivers, and many drunk drivers cause no accidents at all. The law should focus on violations of person and property, not scientific oddities like blood content.

There’s a final point against Clinton’s drunk-driving bill. It is a violation of states rights. Not only is there no warrant in the Constitution for the federal government to legislate blood-alcohol content, the 10th Amendment should prevent it from doing so. The question of drunk driving should first be returned to the states…

Incidentally, I don’t believe Llewellyn is arguing against the traditional drunk driving laws (that is, driving under the influence) but only against the new laws of driving with .08% blood-alcohol. I think everyone will recognize that a truly intoxicated driver is a danger.

The War on Drunk Driving continues:

Fresno Cracks Down on DUI

Fresno, Calif. Dec. 21 — Police in Fresno are throwing up roadblocks, conducting stakeouts and using night-vision goggles, satellite tracking devices and video cameras in an extraordinary crackdown aimed not at terrorists or drug lords, but at drunken drivers…

Fresno’s attack on drunken driving has been called the nation’s best by the International Association of Chiefs of Police. Mothers Against Drunk Driving has pronounced it "among the most aggressive in the nation." Among other things, Fresno police are putting undercover officers near bars to watch for drinkers stumbling to their cars. They are setting up multiple drunken-driving checkpoints, sometimes even on weeknights. And they are surreptitiously planting Global Positioning System devices on the cars of convicted drunken drivers to monitor whether they are going to bars or liquor stores in violation of their probation or parole.

Officers are using night-vision goggles and cameras to keep track of about 150 people who have been convicted of serious DUI offenses. The terms of their parole or probation often allow officers to search their homes at any time for evidence they have been drinking, and they can be re-arrested should police find alcohol there, no matter who bought it. "It comes down to what’s more important: living in that residence or having alcohol in the home," Van Wyhe said. "We have to keep them away from that temptation. If they’re having a bad night, they could take to it again."

Sounds a lot like Germany in the ’30s.

It may not surprise you to find out that alcoholics arrested for DUI will generally have higher blood-alcohol readings. It may surprise you, however, to learn that alcoholics will generally have higher blood-alcohol readings because they are alcoholics….. That’s right. It’s because the physiology of alcoholics is different in some important respects.

One of those is that their bodies produce more acetaldehyde — far more. Acetaldehyde? That’s a compound produced in the liver in small amounts as a by-product in the metabolism of alcohol. Unfortunately, alcohol in the lungs has been found to metabolize there as well as in the liver — and to produce acetaldehyde there.

The amount of acetaldehyde produced in the lungs (to then be breathed into the breathalyzer) varies from person to person. "Origin of Breath Acetaldehyde During Ethanol Oxidation: Effect of Long-Term Cigarette Smoking", 100 Journal of Laboratory Clinical Medicine 908. But in a study focusing on alcoholics, researchers discovered that the amount of acetaldehyde in the breath and blood of alcoholics was 5 to 55 times higher than that in nonalcoholics. "Elevated Blood Acetaldehyde in Alcoholics and Accelerated Ethanol Elimination", 13 (Supp 1) Pharmacology, Biochemistry and Behavior 119.

End result: since breathalyzers can’t tell the difference between alcohol and acetaldehyde (see earlier post, "Why Breathalyzers Don’t Measure Alcohol"), alcoholics will usually have falsely higher blood-alcohol readings.

I’ve mentioned in the past about roadblocks partially staffed by MADD volunteers, and even a few run by MADD independent of the police. The evolution of DUI roadblocks continues:

Relatives of victims help at DUI checkpoints

Hilo, HI. Dec. 19 – Students and relatives of DUI victims will be helping Big Island police this week and next at DUI checkpoints.

Police said one checkpoint will be set up in Pahoa with students from Pahoa High School and students from the newly-established University Mothers Against Drunk Drivers (UMADD)…

Sounds like a calm, impartial and professional law enforcement operation.

What happens when you reward officers for making the most DUI arrests?

Seal Isle Officer Charged with Faking Evidence in DWI Arrest

Sea Isle City, NJ.  Dec. 16 -  A city police sergeant allegedly tampered with evidence to frame a suspect during an alcohol bust in August. Sgt. Vincenzo Macrino, 33, of Sea Isle City, was arrested Friday at the police station and charged with official misconduct and tampering with evidence, the Cape May County Prosecutor’s Office said Friday…

Macrino was honored in September by Mothers Against Drunk Driving as one of its “top cops” for making drunken-driving arrests in Sea Isle City. The group honored more than 322 honorees from nearly 300 local police departments. MADD said its 2006 honorees represented just 2 percent officers in their departments, but were responsible for 20 percent of drunken-driving arrests.

MADD has a policy of having its local chapters around the country honor individual officers for making high numbers of DUI arrests — honors that are helpful to those officers’ careers.  So how many Sergeant Macrinos do you think are out there?  And how many citizens are falsely arrested and convicted?  (Remember:  all it takes is the officer’s testimony that the defendant appeared intoxicated, failed the field sobriety tests, and refused to take a breath test; no one is going to believe the defendant.)

For an example of this practice triggering a federal law suit, see my earlier post DUI SuperCops.

(Thanks to Hockey Bobc.)

I have commented repeatedly in the past about the inaccuracy and unreliability of breath-testing devices used in DUI investigations. This is due to a wide range of factors: inherent design defects (see, for example, my previous post "Why Breathalyzers Don’t Measure Alcohol"); ineffective calibration and maintenance of the machines; improper administration of the test; radio frequncy interference; and, most importantly, physiological variability in humans.

The main problem with breath machines is that they are designed to assume all human beings are the same (see "Convicting the ‘Average’ DUI Suspect"). In fact, we are all very different from one another in ways that are critical to such testing — and we are ourselves physiologically different from one moment to the next. Each of us, for example, is inherently different in our partition ratio — the ratio of alcohol in our breath compared to alcohol in our blood — and this ratio differs within ourselves from hour to hour (see "Breathalyzers — and Why They Don’t Work"). This is critical, as the breathalyzer will automatically compute the amount of alcohol in the blood based upon the measured alcohol on the breath — using a uniform ratio that (falsely) assumes we are all the same.

Another human variable is the existence of such conditions as diabetes (see "Diabetes and the Counterfeit DUI"), acid reflux ("GERD, Acid Reflux and False Breathalyzer Results")…. and anemia. A person suffering from anemia has a low red blood cell count, perhaps half as much as would be normal. Put simply, when there are fewer red blood cells, the body will increase the amount of plasma to fill the void. Red and white blood cells are solid; plasma is liquid. Alcohol is attracted to liquid in the body, not muscle, bone, or other solids. It follows that the higher the ratio of liquid to solids in the blood (called the hematocrit), the higher the amount of alcohol in the blood — and the higher will be the reading on the breathalyzer. The male-female average hematocrit is 45% (men average 47%, women 42%), but the range varies for men from 42 to 52%, and for woman from 37 to 47%. The machine, of course, assumes that all suspects have a hematocrit of 45%.

The effect of an individual’s hematocrit on breath analysis can be mathematically computed. The partition ratio of alcohol in blood to alcohol in breath uniformly used in breath testing is 2100:1. If the suspect’s hematocrit is, say, 54%, the breath test result could be computed by multiplying it by 45/54. Assuming a breath test result of .11%, for example, the true blood-alcohol concentration could be determined by the formula .11 x 45/54 = .09%. In other words, a person with a true BAC of .09% but a hematocrit of 54% would test on an otherwise "accurate" machine as .11%. Just because he/she is anemic — or simply varies from the statistical norm.

I posted a few days ago about an Illinois judge who refused to cooperate with officers investigating him for felony DUI, refusing to submit to field sobriety and breath tests. The hypocrisy applies to law enforcement as well:

Officer Honored for DUI Arrests Charged in

Alcohol-Related Crash

Pekin, Ill. Dec. 13. AP – An off-duty central Illinois police officer honored two years ago for cracking down on drunken driving has been charged in an alcohol-related crash that injured 10 people… (Greg)

Heiken, honored by the Illinois Department of Transportation’s traffic safety division in 2004 for making the most DUI arrests in Woodford County, faces up to three years in prison and could lose his job if convicted of the felony aggravated DUI charge…

Heiken admitted drinking at the Par-A-Dice, but refused blood-alcohol testing, according to the affidavit. Blood was taken against his wishes because people were injured in the accident, but test results were not available.

Funny how judges and cops have one righteous standard for the public, quite another for themselves.

As I’ve posted repeatedly in the past, Mothers Against Drunk Driving is a self-serving bureaucracy focused equally on Prohibition and cash.

According to their own IRS statements, the U.S. organization alone brings in over $50 million a year in contributions — and, according to watchdog Charity Navigator, has a low 2-star efficiency rating (the Director of Program and Development, for example, is paid $152,408 a year).

It would appear that MADD’s sister organization to the north is similarly oriented:

MADD Rejects ‘Disgruntled’ Critics

Charity’s CEO dismisses volunteers’ complaints that so little of donations go to programs

Toronto, Dec. 10 — MADD Canada’s top official has called a group of relatives of drunk driving victims who complained about his charity "disgruntled" and lashed out at the Star for exposing its high fundraising and administrative costs…

A story published in the Saturday Star revealed that Mothers Against Drunk Driving Canada has such high costs that only about 19 cents of every dollar goes to victim services and the fight against drunk driving. In addition to a detailed analysis of MADD’s financial records, the story was based on interviews with leading volunteers of MADD who all work with the charity because they lost a loved one to a drunk driver. The volunteers believe in the counselling and public awareness work of their local chapters but agreed to speak out against the charity’s administration to force a change and restore confidence in what was once a low-cost, grassroots charity.

In his news release, (MADD CEO Andrew) Murie dismissed their complaints and said they are "obviously disgruntled with the organization."… Yesterday, more than 100 MADD donors contacted the Star to say they had been suspicious of MADD’s fundraising practices due to the high volume of telemarketing calls and other fundraising contacts they receive, sometimes monthly. MADD has numerous paid fundraising campaigns, using paid telemarketers, a company that sends people knocking on doors, a direct mail company and a company that distributes chocolate mint boxes around the province.

"I am absolutely furious at reading what MADD is doing with donors’ dollars," said Joyce Williamson, 77, a widow who has made frequent $25 donations to MADD for many years. When she learned from the Star article that so little of her cheque was going to charitable works, she decided not to give to MADD again. She said MADD’s paid door and phone canvassers used "emotional blackmail" by pressing her on the phone or at the door with numerous stories of drunk driving fatalities.

The Star’s story revealed that telemarketers work off a script that encourages them to press prospective donors three successive times after the person has said "no." The Star’s investigation found the paid fundraisers take most of the money, and send the remainder to head office.

And the "War on Drunk Driving" goes on… (Thanks to Stephen Biss of Mississauga, Ontario.)

The following news article speaks for itself.

WATERBURY: Report Blasts DUI Derby

Waterbury, Conn. Dec. 8 — It didn’t matter whether drivers were drunk for state troopers from Troop I in Bethany to charge them with driving under the influence.

Three years ago, drunken-driving arrests were a game for several troopers in Troop I, according to a scathing report released Monday attacking how the agency polices itself.

The report, released by the state’s Attorney General’s Office and the New York state police, says it was an “open competition” among members of the troop’s midnight shift to see who could make the most DUI arrests.

“They wanted to become members of the 100 club for the year,” the report quoted one trooper, who was describing how each trooper tried to make 100 DUI arrests.

A state police internal audit in 2004 showed Troop I, where the “100 club” was active, made 500 DUI arrests in the previous year, far more than any other barracks. The midnight shift even received a departmental award for its DUI arrests.

According to the report, it took serious misconduct for the troopers to log that many DUI arrests. The report said troopers were discouraging people from taking breath tests…

The troopers told people that if they took the breath tests they would have to stay in police custody longer before they could post bond and be released, the report states.

That allowed troopers to report they arrested drivers on DUI charges because the drivers admitted using alcohol or marijuana, the report stated.

Subsequent laboratory tests showed that many of the people arrested did not have drugs or alcohol in their systems, or had amounts well below the legal limit.

That allowed troopers to report they arrested drivers on DUI charges because the drivers admitted using alcohol or marijuana, the report stated.

Subsequent laboratory tests showed that many of the people arrested did not have drugs or alcohol in their systems, or had amounts well below the legal limit.

The audit’s findings were turned over to the state police Internal Affairs Division….

So, of course, Internal Affairs cleaned it up, right?

…But the internal affairs investigation looked at only one trooper.

“The internal affairs investigation was conducted in such a haphazard manner that it would be impossible to determine whether or not employee misconduct occurred by reading the internal affairs investigation report,” the report read. “Virtually none of the leads in this case were adequately followed.”

The internal affairs investigation concluded the issues were not that serious and were the result of sloppy paperwork, according to the report.

It was common for the internal affairs division to try to protect fellow state police officers above all else, according to the report.

Unfortunately, this is not an isolated practice. When you declare a political “war on drunk driving”, pass unjust laws, violate constitutional rights and render biased decisions from the bench, you send a clear message to the police.

(Thanks to Radley Balko and “Jon”.)

"What should I do if I’m stopped for a DUI?" Do what judges do:

Illinois Judge Charged with Drunken Driving

Bellevue, Ill. December 7 – A judge driving with his boss was charged with drunken driving after a wreck that sent another motorist to the hospital, and the other judge was seen by an officer pouring out a can of beer, police said.

St. Clair County Circuit Judge Patrick Young, 58, was handcuffed and arrested and charged with drunken driving after the Sunday crash, about 20 miles from St. Louis. He refused a sobriety test, authorities said…

Young’s attorney, Clyde Kuehn, said Thursday his client was "absolutely within his rights" to refuse a field sobriety test and a Breathalyzer test, saying the tests have proven unreliable.

If they are so unreliable (and they are), why does this judge always allow them into evidence in cases he’s presiding over? And why does he probably throw the book at defendants for refusing to cooperate?