DUI BLOG

It has become an increasingly common practice for police to receive anonymous phone calls about “drunk drivers” on the road. These “tips” are typically relayed by the police dispatcher to an officer in the field as a call to investigate a “suspected drunk driver”; the officer is rarely told that the basis of the information is an anonymous caller with no corroboration or reliability. The officer then pulls the car over, fully expecting to encounter an intoxicated person behind the wheel. And, as the psychologists tell us, we tend to see what we expect to see.

With the backing of MADD, this is being actively encouraged in most states now, featuring media campaigns and roadside billboards encouraging citizens to call an emergency phone number to report anyone who appears to be driving in a suspicious manner — what cops and lawyers call "dial-a-drunk".  And, increasingly, we are seeing citizens being reported as "drunk" who are merely distracted by a cell phone, for example, or who were involved in a "road rage" incident with the angry caller. The source or facts don’t matter: the dispatcher forwards a "suspected DUI" call to the cop in the field and the reported driver will be pulled over.

Some courts still adhere to the constitutional standards that a tip must be reliable before it can be the basis for a warrantless stop and search (a field sobriety test may be considered a search, and a field breath test definitely is).  In the alternative, the Constitution requires the officer to be able to independently observe indications of impaired driving before he can stop the driver.

In an increasing number of states, however, those standards — like so many other “DUI exceptions to the Constitution” — have fallen by the wayside in recent years. Even in those states where the courts continue to apply the Bill of Rights, the prosecution is commonly able to justify the stop because the officer will testify that once he identified the reported car on the road, he followed it and observed it to “weave”. As any cop or defense attorney knows, this is an old, well-worn standby used to justify stopping any vehicle: it is the cop’s word against the citizen’s and, in any event, all cars weave to some degree — particularly if followed for any period of time.

Now consider the wonderful possibilities of anonymous — such as this news story:

SHERIDAN, Wyo. (AP) – Mayor Dave Kinskey passed a sobriety test after a phoned-in tip that said he may have been driving under the influence of alcohol. After he was pulled over Saturday night and passed the field sobriety test, Kinskey had his attorney drive him to a hospital, where he had a blood-alcohol test at his own expense. The test showed that his blood-alcohol level was 0.02 percent, according to Police Chief Mike Card…. City Councilwoman Kathy Kennedy said she was with Kinskey at a motorcycle rally Saturday and saw him drink two beers over two hours. ‘’To me this is just a smear campaign to try to get at him due to politics. I think it is pretty bad when an off-duty city employee calls in to smear the mayor by saying he was intoxicated when he wasn’t,’’ Kennedy said.

What if you were the driver and the caller was your ex-spouse? And you were not a mayor?
 

As a former law professor, I would start my criminal law courses with the basics: There are two kinds of laws: malum in se and malum prohibitum.  With the first, a law exists because the prohibited conduct is inherently bad; murder, theft and rape would be obvious examples.  With the second, the conduct is illegal simply because we decide that it should be; gambling, prostitution and possessing drugs come to mind.

The malum in se laws are easy:  Is there a victim?  The malum prohibitum are more difficult: society must ask itself what kinds of conduct that does not directly involve harm to another should nevertheless be punished for whatever reason.  Often, the types of conduct included in this category are based upon moral judgments.

Where does drunk driving fall?  DUI carries increasingly severe criminal penalties: jail sentences, extensive license suspensions, stiff fines, alcohol education programs, ignition interlock devices, probation, and often more.  Is it inherently bad, or is it bad because we’ve decided to punish it — possibly for unrecognized moral reasons? 

There is no victim in the vast majority of DUI cases.  However, the severity of the punishment would seem to indicate this to be a malum in se offense, presumably on the grounds that there is a possibility that someone could be injured or killed. According to MADD’s own statistics, there were 159 million alcohol-impaired trips in one recent year, with 11,773 alcohol-related fatalities. So it is dangerous, although the likelihood of a death is very small:  about 1 in every 13,500 DUI incidents, according to MADD’s figures. One must add to this, of course, the likelihood of non-fatal injury.

So….Do we severely punish drunk driving solely because it is dangerous to human life — or is it at least partly because of a moral judgment about alcohol?

Before we answer that, let’s apply the same analysis to distracted driving — driving while talking on a cell phone or while texting (DWT), for example.  In many states it is perfectly legal to engage in such behavior; in others, it carries a minor fine with no other consequences (in California, for example, the fine is $50, there is no criminal record – and the police rarely enforce the law).

Yet….All of the recent studies have come to the same conclusion:  distracted driving is at least as dangerous to human life as drunk driving.  See my earlier posts, Alcohol vs Cell Phone: Which Is More Dangerous?, Driving Under the Influence of…a Cell Phone, Most Dangerous: Drunk, Drowsy or Distracted?, The Difference Between DUI and DWT Is…?, Inebriated or Texting – Which Is More Dangerous When Driving?, Feds Crack Down on DUI – and Cover Up DWT,

So….If the risk of harm is similar, why the huge disparity in the laws?  Why is one morally condemned and harshly punished — while the other receives a slap on the hand, if that?

If I haven’t made it clear, my point is not that drunk driving should be legal:  it is dangerous and should be punished.  But the punishment should be based upon the degree of danger — not upon a prohibitionist condemnation of alcohol.  And equivalent punishments should be meted out for distracted driving.
 

Many people who are convicted of drunk driving lose their jobs; it it’s a felony they’re almost certain to.  So what happens to a cop who is convicted of drunk driving?  What if the conduct involved an accident?  What if it’s a felony DUI with injury?  What if the drunk driving cop kills someone?

Cops Who Drive Drunk Don’t Lose Their Jobs

New York, NY.  March 8 — All of the 55 NYPD cops charged with drunk driving since 1999 pleaded down to non-felony charges and almost every single one of them remained on the force. Although the NYPD can fire any cop "who causes serious physical injury to another person while operating a motor vehicle and is determined to be unfit for duty due to the consumption of alcohol," a news investigation reveals that officers accused of drunk driving often keep their jobs after pleading guilty to lesser offenses like driving while impaired or disorderly conduct.

An NYPD spokesman said officers convicted of felonies are automatically fired, but those who plead down or are convicted of misdemeanors can be punished with suspension, loss of vacation days, alcohol counseling, and probation. Several cops have been accused of drunk driving in recent months, including Officer Andrew Kelly, who hit and killed a preacher’s daughter, Detective Kevin Spellman, who hit and killed a Bronx grandmother, and other cops who crashed into a Tiffany’s store and struck a parked car.

Some cops accused of drunk driving, like Officer Donald Haines, say they’re lucky they’re still on the force. Haines—who joined the NYPD although he had pleaded guilty to driving impaired in 1998—was charged with drunk driving for jumping a curb in Long Island in 2007. After refusing to take a sobriety test and a chemical test, he pleaded guilty to another count of driving while impaired and was ordered to perform 50 hours of community service and pay a $1,000 fine. "All I can say is, I still have my job and I’m very grateful," he said.

Others, like retired detective Daniel Massanova, were unrepentant. Five years before retiring with a pension in January, Massanova pleaded guilty to driving impaired after swerving into oncoming traffic and colliding with another car, injuring two women. He refused a Breathalyzer at the scene and was later found to have a blood alcohol level of .11. "Two girls hit me. … They weren’t two old ladies coming home from BINGO, you know what I mean? They were out drinking and drugging," he said. "If I was such a bad guy, why did I work the last 2-1/2 years in the chief of detectives office unsupervised and alone?" he asked. "I had a couple beers in me and I’m the bad guy because I’m a cop."

Who guards the guardians?
 

As everyone knows, each state has the right to enact DUI laws it feels appropriate for its citizens. The federal government has no authority to dictate to the state legislatures what those laws should be. 

That’s the theory. The reality is that federal bureaucrats routinely coerce states by threatening to withhold badly-needed federal funds.  And this approach has frequently been used where drunk driving laws are involved.  Result:  almost all states have now lowered their blood-alcohol limits to .08%, passed per se laws (illegal to drive with .08% blood-alcohol even if sober), required automatic license suspensions by the arresting officer, and imposed "zero tolerance" (.01 or .02%) on drivers under 21.

In today’s news:

Bill Would Nix DUI Offenders’ Ability to Drive to Probation Appointments

Lincoln, NE.  March 13 — This year, about 2,000 Nebraskans convicted of drunk driving will use ignition interlock devices so they can drive to work, school, alcohol treatment and probation appointments.

But after July 15, they will have to get rides, walk or bike to meet with their probation officers.

The federal government says allowing people with these special permits to drive to probation appointments strays beyond federal regulation.  And Nebraska could lose as much as $7.15 million in federal funds a year if senators don’t change the law.

State senators on Friday gave first-round approval to the bill (LB924) that would remove probation appointments as acceptable destinations for people convicted of drunk driving who have the special permits.

"This truly shows the disconnect with the feds," said Sen. Deb Fischer of Valentine, chairwoman of the Transportation and Telecommunications Committee. "Some bureaucrat has decided people don’t need to drive to probation appointments."

The Nebraska Department of Motor Vehicles thought allowing people to drive to probation appointments was logical — part of the rehabilitative process, like driving to alcohol treatment programs. So senators included it in the law covering the ignition interlock program.

Federal bureaucrats thought otherwise…

Ok, you’ve had two glasses of wine with dinner and it’s time to head home. You feel fine, but throw down a couple of cups of coffee to clear your head just to be sure. Then you pay the bill, walk out to your car, get behind the wheel — and one block after pulling out of the parking lot you see flashing red lights in your rear view mirror.

A couple of minutes later you find yourself struggling to walk heel-to-toe on a straight line.  Well, you think, I only had a couple of drinks.  A couple of drinks — and coffee….

Field sobriety tests are used by officers as evidence of whether an individual is under the influence of alcohol or not. These commonly involve such excercises as "walk-and-turn", "finger-to-nose" and "one-leg-stand". The greater the intoxication, in theory, the worse will be the performance on these tests.

However, the truth is that these "tests" are highly unreliable and subject to such variables as the individual’s age, weight and athletic ability, the conditions under which the tests are given, the emotional state of the individual, fatigue, unfamiliarity with the tests, proximity to passing traffic, failure of the officer to communicate instructions, and many others.

And then there is caffeine…..

Caffeine and alcohol have a synergistic effect — that is, they combine to produce an accelerated effect. Rather than sobering a person up, as is commonly believed, coffee can actually increase the symptoms of alcohol.

The definitive studies were done by researchers in Great Britain and reported in an article entitled, "Interactions of Alcohol and Caffeine on Human Reaction Time", appearing in the scientific journal Aviation, Space and Environmental Medicine 528 (June 1983).

The conclusions of the scientists:

"Alcohol has always been categorized as a central depressant and caffeine as a central stimulant. Therefore, it should follow that an antagonistic [counter-active] interaction should occur when these two drugs are ingested simultaneously. But as these results illustrate, this is not necessarily the case…

"Caffeine has a synergistic interaction with alcohol…(It) has the effect of potentiating the detrimental effects already induced by alcohol….Motor skills which involve delicate muscular coordination and accurate timing have been found to be adversely affected by caffeine."
 

Result? Poorer performance on the field sobriety tests — and an arrest for DUI.
 

Drunk driving is bad.  It’s potentially dangerous to human life.  It should be punished.  So, many years ago a law was passed: 

"Thou shalt not drive drunk".

It was a fair law and it addressed the problem.  So…what happened?  Why do today’s laws punish drivers when they are neither "drunk" nor "driving" — nor even in a "vehicle"? 

"Drunk" 

The original laws prohibited driving a vehicle "under the influence of alcohol" — commonly referred to as "DUI".  In some states, it’s called "DWI" (driving while intoxicated) or "OUI" (operating under the influence).  In other words, the accused had to be (1) driving (2) a vehicle (3) while intoxicated to the extent that he or she was unable to safely operate it.

This changed a few years ago with the passage of so-called per se laws.  Prosecutors and groups like MADD were frustrated with the difficulties in proving that a driver was, in fact, under the influence.  So legislators, anxious for re-election endorsements from prosecutors, police and MADD, passed a new law:

"Thou shalt not drive with a blood alcohol level of .10% or more."

Well, this made it much, much easier to convict citizens suspected of drunk driving.  First, prosecutors no longer had to prove that a driver was impaired in his judgment, reflexes, perception and coordination.  All they had to do was produce a number: .10%.  Never mind that the American Medical Association conducted studies and announced in 1938 that a driver was only "impaired" at .15%.  Never mind that MADD was later successful in getting the number reduced further down to .08% (and is lobbying for further reduction to .05%).  And never mind that every person’s tolerance to alcohol varies widely — that some drivers may be under the influence at .07%, while others may not be intoxicated at .11%.  The law was no longer interested in whether the driver was a danger or not: the crime was in having alcohol in your body.

The second reason the new per se laws were wildly popular with prosecutors, police and MADD was that the arrested citizen could now be charged with both crimes — DUI and .08%.  This had two big advantages.  First, it gave the prosecutor two shots at the defendant; if he didn’t get him for one, he might get him for the other.  Second, it gave juries that were unsure of the defendant’s guilt an option: convict him of one charge but acquit him of the other.  Juries that were not unanimous could use this as a compromise — even if some jurors felt the accused was not really proven guilty.

Just to make it even easier, many courts have followed the California Supreme Court in ruling that the breath alcohol reading cannot be questioned on the grounds that it does not accurately reflect the alcohol actually in the person’s blood.  See Bransford v. California.  (One dissenting justice in that case, less concerned with politics than with common sense, wrote: "The majority…has on its own created the new crime of driving with alcohol in one’s breath.")

"Driving" 

The second half of drunk driving is…"driving".  This would seem obvious: how can you be driving under the influence if you’re not…well, driving?

No problem.  If you have judges who do not want opposition from prosecutors, police and MADD at the next election, you will have strange judicial interpretations of what "driving" means.  And in recent years there has been a flood of judicial interpretations which have stretched the word beyond recognition.  A couple of examples:

Sleeping in (or near) the car.  See my posts Sleeping Under the Influence, How to "Drive" Under the Influence While Sleeping, Convicted of Drunk Driving Without Driving and When Does the Insanity End?

Sitting in a parked car.  See Parking Under the Influence and Sitting in a Parked Car  

"Vehicle"

Just as the judges stretched the meaning of "driving" beyond the limits of credulity, so they also expanded the definition of what constituted a "vehicle".  Now, a "vehicle" is commonly understood to mean a car or truck, and so it has been applied for decades.  But this, too, has been slowly expanded to include such "vehicles" as:

Bicycles.  See my posts DUI on Bicycles, Felony DUI Bicycle and DUI While Walking a Bicycle

Lawnmowers.  See More News From the Front and The "War on Drunk Driving" Marches On

Horses. See DUI on a Horse

Wheelchairs.  See DUI in a Wheelchair

Toy bikes.  See DUI on a Foot-High Toy Bike 

Golf carts.  See The War on Drunk Driving Continues

Zamboni ice machines.  See News From the Front

As Humpty Dumpty explained to Alice so many years ago:
 

“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.”

We used to have laws punishing drunk drivers. They were good laws, designed to protect citizens.  Whatever happened to them?
 

It is an unfortunate fact that law and politics repeatedly trump science when it comes to prosecuting citizens accused of drunk driving…..

In People v. Bransford, to cite one notable example, the California Supreme Court was confronted with a defendant who was challenging his DUI conviction on the grounds that he was not permitted to offer scientific evidence to the jury. Specifically, he was not permitted to offer the testimony of recognized experts that the breath machine’s computer was programmed to assume that there were 2100 parts of alcohol in his blood for every 1 part it measured in his breath. He was also prevented by the trial judge from offering further evidence that this 2100:1 ratio was only an average — and that the actual ratio varied widely from person to person, and within one person from moment to moment. (If, for example, a suspect’s ratio had been 1500:1 at the time he blew a .10% on the machine, his true blood-alcohol would have actually been .07% — that is, he would have been innocent.)

The Supreme Court of California affirmed the conviction, however, ruling that such scientific facts are irrelevant: the law was recently re-written in a way that concerned the amount of alcohol in the blood ”as measured on the breath”. In a display of either twisted logic or ignorance of the scientific facts involved, the Court simply said that the crime consisted of the amount of alcohol in the blood — but only as measured on the breath. In other words, although the crime is having .08% alcohol in the blood, you can’t offer evidence about the amount of alcohol actually in the blood!

An amazing decision. More interesting, perhaps, is language in the opinion — an opinion which gives us a window into the justices’ minds. In what must have been a complete failure to appreciate the significance of what they were writing, the Court justified its ruling in a rather frank — and incredible — admission of its hidden agenda:

It will increase the likelihood of convicting such a driver, because the prosecution need not prove actual impairment…Adjudication of such criminal charges will also require fewer legal resources, because fewer legal issues will arise. And individuals prosecuted under such a statute will be less likely to contest the charges.  People v. Bransford, 8 Cal.4th 894 (1994).

In other words, preventing an accused from defending himself with scientific truth serves justice by making it easier to get convictions!

Are all judges oblivious to the truth? Not entirely. One judge, Justice Joyce Kennard, dissented from the majority opinion. Recognizing the truth, she wrote in a dissenting opinion:  

The majority…has on its own created the new crime of driving with alcohol in one’s breath.

She was dead right.