Archive for March, 2010

Whatever Happened to “Drunk Driving”?

Friday, March 5th, 2010

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"? 


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.")


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  


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?


Drunk Driving Laws Trump Science Again

Tuesday, March 2nd, 2010

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.