Feds Float Lower DWI Limit; Some Say It Will Reduce Fatalities; Others Say It's a Money-Grab

Newsday, New York.  May 14 — One drink for a 120 pound woman, two drinks for a 160 pound man.

That's all it would take to be considered legally drunk under a new federal recommendation to lower the driving while intoxicated blood-alcohol limit from .08 percent to .05 percent. It's another step in what the National Transportation Safety Board calls "Reaching Zero," a long-term effort to reduce the number of drunken driving-related fatalities.

"It is an aggressive approach," said Jared Altman, a Montrose-based defense attorney. "One would be surprised at how little you can drink and hit the .08 limit now."

Reaction to the NTSB's recommendation on Tuesday ranged from full support from road safety advocacy groups to a cautious wait-and-see approach from others.

White Plains-based attorney Richard Portale said changing the definition of "intoxicated" every few years is disingenuous. He said he'd be more willing to support the law if it merely set a limit for driving and did not try to redefine intoxication, but said he believes it's ultimately a "money-grab" by the government. Several studies have found that towns and cities enjoy a boom in court fees and related fines when blood-alcohol limits are lowered.

"They're dying for money. They don't get enough of our tax money, so now they want to change our DWI laws to generate more revenue," Portale said…

If lawmakers act on the NTSB's recommendation and lower the legal limit for drivers, it would mark the second time in a decade that the limit was lowered. New York lowered the legal limit from .10 to .08 in 2003, two years after president Bill Clinton signed a law that would withhold federal aid to states that did not lower limits to that number…

A 2000 study by Boston University's Social and Behavioral Sciences Department found that states that had dropped BAC limits to .08 percent saw a 6 percent decline in alcohol-related deaths. But a 2002 study by Connecticut's Office of Legislative Research found there was "no statistical difference" between the rate of fatalities between states with a .10 blood alcohol limit and states with a .08 limit.

Mothers Against Drunk Driving on Tuesday thanked the NTSB "for bring the American public's attention to the fact that drinking and driving continues to be a major problem on our highways … and that additional steps have to be taken to save the unnecessary loss of life and injuries that occur as a result of these crashes."…
 

Washington, D.C.  May 14 — A common benchmark in the United States for determining when a driver is legally drunk is not doing enough to prevent alcohol-related crashes that kill about 10,000 people each year and should be made more restrictive, transportation safety investigators say.

The National Transportation Safety Board recommended on Tuesday that all 50 states adopt a blood-alcohol content (BAC) cutoff of 0.05 compared to the 0.08 standard on the books today and used by law enforcement and the courts to prosecute drunk driving…

The NTSB investigates transportation accidents and advocates on safety issues. It cannot impose its will through regulation and can only recommend changes to federal and state agencies or legislatures, including Congress.

But the independent agency is influential on matters of public safety and its decisions can spur action from like-minded legislators and transportation agencies nationwide. States set their own BAC standards….

In the early 1980s, when grass-roots safety groups brought attention to drunk driving, many states required a 0.15 BAC rate to demonstrated intoxication.

But over the next 24 years, Mothers Against Drunk Driving and other groups pushed states to adopt the 0.08 BAC standard, the last state falling in line in 2004…

Based upon this recommendation — and, as in the past, some pressure on the states to withhold federal highway funds if the new DUI standard is not adopted — it is likely that we will all see the.05% level enacted as law over the next few years.

The article mentioned an earlier blood-alcohol level of .15% in some states.  Let me offer a more accurate history to give context to today's federal action…. 

The original drunk driving laws were simple and fair: Don’t drive under the influence of alcohol (DUI). Then, many years ago, law enforcement came up with crude devices to measure alcohol on the breath of drunk driving suspects. But what did, say, a .13% blood-alcohol concentration (BAC) mean?  They turned to the American Medical Association which, in 1938, created a "Committee to Study Problems of Motor Vehicle Accidents"; at the same time, the National Safety Council set up a "Committee on Tests for Intoxication".

After some study, these two groups came up with their findings: a driver with .15% BAC or higher could be presumed to be "under the influence"; those under .15% could not. That’s right: .15%. And that recommendation lasted for 22 years. But prosecutors and certain groups of "concerned mothers" were not happy with the low DUI arrest and conviction rates.

Under increasing political pressure, the committees "revisited" the question in 1960 and agreed to lower the presumed level of intoxication to .10%. Had the human body changed in 22 years? Had the AMA been negligent in their earlier studies? Or were politics and law trumping scientific truth?

Well, the arrest and conviction rates shot up, but there were still too many people escaping the DUI net. Then MADD was formed by Candy Lightner (later to quit the organization in disgust and become a spokesperson for the liquor industry). Soon after, legislation began appearing in many states that created a second crime: driving with a BAC of .10% or higher.

This new crime did not require the driver to be affected by alcohol: even if sober, he would be guilty if his blood-alcohol was .10%. In effect, it completely ignored the questions of intoxication, driving impairment and individual tolerance to alcohol. And, despite questions of double jeopardy, the individual could be charged and even convicted of both the traditional DUI and the new .10% crimes! This gave police and prosecutors a powerful new weapon, and drunk driving arrests/convictions jumped once again.

This was not good enough. Under increasing pressure from an ever more powerful MADD, in 1990 four states lowered the blood-alcohol level in DUI cases to .08%; others soon followed and, ten years later, federal politicians (with one eye on MADD) passed an appropriations bill in effect coercing all states into adopting the new .08% BAC standard.

Since then, there has been continued pressure on federal agencies and state legislatures to drop the blood-alcohol level to .05% — resulting in today's announcement by the NTSB.

What is the next step in MADD's march toward a new era of Prohibition?  Well, that should be obvious: .01% — exactly as is currently used across the country on drivers under the age of 21.  

Not coincidentally, these .01% so-called "zero tolerance" laws were also championed by MADD and imposed on all of the states by the feds with the threat of withholding highway funds.

(Thanks to Matthew S. Kensky and "Joe" for the article.)
 

The DUI case involved the right of police officers to forcefully take a blood sample from a driver without his consent or a search warrant.  The Court ruled that absent any exigent circumstances, such a taking of blood constituted a violation of the 4th Amendment's right to be free from unreasonable searches of the person.  Natural dissipation of alcohol from the system (present in every case) did not constitute such an exigency.  

I am flattered and greatly honored that in his written opinion Chief Justice Roberts cited my book, Drunk Driving Defense (7th edition), as recognized legal authority in the field.
 

Court Finds Breath Mints Are Evidence of  DUI

Lewisville, TX.  April 18 — Use of breath mints can be considered evidence a driver is intoxicated, according to a divided Texas Court of Appeals ruling delivered earlier this month. The three-judge panel made the decision in the case of limousine service driver Robert Richardson who was stopped in Lewisville, Texas on August 25, 2010 while transporting customers from the airport.

Texas Department of Public Safety Trooper Fulford was about to issue a speeding ticket to a motorcycle on Interstate 35E when he noticed Richardson's Chevy Tahoe change lanes without signaling, almost hitting the motorcycle. Trooper Fulford was concerned primarily about the bad driving, but in the back of his mind he thought it could also be a case of driving under the influence (DUI). Once stopped, there was a mild odor of alcohol in the Tahoe, the passengers denied drinking, and Richardson was nervous. Trooper Fulford told Richardson he would write him a warning for his failure to signal before changing lanes. When he returned from his squad car with a warning notice in hand, Trooper Fulford said he noted an "overwhelming" odor of breath mints.

"Did you just take a breath mint?" Trooper Fulford asked.

When Richardson said yes, he was ordered out of the Tahoe. From there, he was arrested and convicted of DUI. Richardson appealed, arguing the traffic stop was complete after the trooper handed him back his driver's license with a warning, and that anything that happened beyond that point amounted to an illegal detention. The Texas judges acknowledged the principle that once a traffic stop concludes, it should not be used as a fishing expedition for unrelated criminal activity. The court had to decide whether the use of breath mints constituted a specific articulable fact suggesting another crime had been committed beyond the bad lane change.

The appellate judges agreed with the trial court that all of the clues Trooper Fulford picked up on prior to smelling the breath mints combined to provide the suspicion needed to make the search reasonable and consistent with the Fourth Amendment.

"These facts, which Trooper Fulford identified during his testimony at the suppression hearing, were sufficient to provide him with reasonable suspicion that Richardson had been driving while intoxicated," Justice Anne Gardner ruled for the court. "We overrule Richardson's sole point. Having overruled Richardson's sole point, we affirm the trial court's judgment."

Thanks to Joe and TheNewspaper.com.
 

These are usually two very different procedures: (1) the administrative suspension for driving with blood-alcohol of .08%, is administered in most states by its department of motor vehicles, and (2) the criminal prosecution for the two separate offenses of driving under the influence of alcohol (DUI, DWI or OUI) and driving with .08%,  which takes place in the courts.

In other words, even though he only committed the act of driving once, the individual is being prosecuted in court for two different crimes: DUI and driving with a .08% BAC. He can even be convicted of both offenses (although he can only be punished for one). How is this possible?

It gets worse…

The driver has already been punished by one state agency (the Department of Motor Vehicles) for driving over .08% by having his license suspended. If he is prosecuted and convicted by another agency in the state's criminal court of driving over .08% (and/or driving under the influence), he will be punished once again. The sentence may involve jail, fines, DUI schools, community work, probation, ignition interlock devices — and a restricted, suspended or revoked license.

How many times can the state prosecute a person for a single crime?

Our Constitution says only once. The Fifth Amendment specifically provides that no person shall "be subject for the same offense to be twice put in jeopardy of life and limb". So is this another example of "The DUI exception to the Constitution?

Let's first take the question of charging defendants with both DUI and .08%….

The courts in the different states wrestled with this one for awhile, but eventually came to the conclusion that the driver actually commited two different crimes. As an Indiana court reasoned, "the test to be applied to determine whether there are two different offenses or only one, is whether each provision requires proof of a fact which the other does not."  Sering v. State, 488 N.E.2d 369 (1986). The .08 statute required proof of blood-alcohol concentration; although blood-alcohol evidence was used to prove the DUI crime as well (a person is usually presumed to be under the influence if his BAC is .08% or higher), the offense could be proved without it. So it's ok to prosecute and convict him for both crimes — so long as you don't punish him for both. 

Hmmm…

Well, what about punishing the driver by suspending his license when he's arrested — and then punishing him again in court? In fact, punishing him in court with a sentence that in some states may include another license suspension?

This one caused the judges a bit more trouble. This wasn't a case where the person was committing two arguably different crimes: he was being punished by two different state agencies for the same crime: driving with .08% BAC. But there had to be some way to get around the Constitution…

The courts could not agree. Some said that there was no double jeopardy or double punishment since the DMV license foreiture was not really a "punishment"  but only a "civil sanction". Others took the position that this was, in fact, a violation of the Fifth Amendment, and they relied upon a 1989 U.S. Supreme Court decision (U.S. v. Halper, 490 U.S. 435) which involved civil forfeitures and criminal punishments for selling marijuana. In that case the Court held that a "civil sanction" was actually a punishment — and thus double jeopardy — if (1) the "clear focus of (the statute) is on the culpability of the individual", and (2) the legislature "understood these provisions as serving to deter and punish". The Court added that "the historical understanding of forfeiture as punishment" weighs heavily in favor of the conclusion that forfeiture continues to serve punitive purposes.

Well, relying upon the Supreme Court's ruling, an alarming number of courts around the country were throwing out criminal DUI charges on double jeopardy grounds. This, of course, infuriated MADD, legislators, prosecutors, law enforcement, insurance companies and pretty much everyone else who did not take the Constitution too seriously. But rescue arrived  from a later, more conservative U.S. Supreme Court.

In 1997, Chief Justice Rehnquist revisited the forfeiture-punishment problem and did something that is rarely ever done: he criticized and flatly rejected the earlier Supreme Court's ruling: "We believe that Halper's deviation from long-standing double jeopardy principles was ill-considered.  Halper's test for determining whether a particular sanction is "punitive", and thus subject to the strictures of the Double Jeopardy Clause, has proved unworkable. Hudson v. U.S., 592 U.S. 93 (1997).

Since then, the courts have had little trouble finding that a police officer who confiscates and suspends the driver's license of a drunk driving suspect is merely administering a "civil sanction", not "punishment", and that when he is later convicted in court and is fined, jailed and has his license suspended again, well that'ss not really double jeopardy or multiple punishment. It just looks an awful lot like it.

From Lewis Carroll's Through the Looking Glass:

"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".
 

Is it possible to be convicted of attempting to drive under the influence?

The courts are not in agreement on whether there is such an offense as attempted drunk driving.  In Strong v. State, 87 S.W.3d 206, for example, a Texas court held there is not.  In People v. Garcia, 262 Cal. Rptr. 915, however, a California court said there was – but said also that it was "not unmindful that there might be some troublesome questions which will have to be resolved in later cases."

Troublesome questions?  The court didn’t explain that cryptic comment, but one that occurs to me is that  attempted DUI becomes a specific intent crime.  So what, you ask? 

Well, there are two kinds of offenses: those requiring only a general intent, and those requiring a specific intent.  Burglary, for example, is a specific intent crime: it requires entry with the intent to commit theft or a felony; without that intent, it is just a trespass.  DUI is a general intent crime: the prosecutor need only prove the act of driving under the influence – not the intent to do it. 

You can, of course, be convicted of attempting to commit a criminal offense.  But it follows that to attempt it you must intend to commit the offense: attempt requires a specific intent to commit the crime (along with steps toward its commission).  Thus, attempted DUI would become a specific intent crime.

So, while intoxication is not defense where there is only a general intent required, it can be a defense where specific intent must be proven:  intoxication can prevent the person from being able to knowingly and intelligently form the intent to accomplish the criminal act.

In other words, we may have a Catch-22:  If a person is mentally and physically too impaired to drive, doesn’t that fact tend to negate the specific intent required for an attempt to drive intoxicated? 

A "troublesome question"….
 

In an interesting scientific article, two physicians at Union Memorial Hospital in Baltimore reported that they detected the odor of beer in three of their patients. This was in an isolated hospital setting; there was no access to alcoholic beverages. The doctors had urine samples taken and analyzed by gas chromatography. Result? All three showed the presence of alcohol in their systems. Two of these were then tested for actual blood-alcohol concentration (BAC). One showed a BAC of .043%. The other was .121% — or 1 1/2 times the legal limit for DUI!

"The presence of alcohol in human specimens containing glucose and yeast should come as no surprise," the two physicians wrote. "Several have made this observation. Under normal circumstances trace amounts of alcohol may be found in the blood; the alcohol is then channeled into an energy pathway by hepatic alcohol dehydrogenase…

"The Japanese report the "auto brewery syndrome" in which they have seen middle aged patients with bowel abnormalities, most often after surgery, who have yeast overgrowth, usually candida, in the G.I. tract and who ferment ingested carbohydrates, producing enough alcohol to result in drunkeness." Mullholland and Townsend, "Bladder Beer – A New Clinical Observation", 95 Transactions of the American Clinical Climatological Association 34 (1983).

In other words, the body is manufacturing alcohol by itself — in some cases, enough to become legally intoxicated. This has been confirmed by other studies. Swedish researchers, for example, have found that:

"Increasing evidence has emerged to show that endogenous ethanol does exist, the the concentrations seen have large inter-individual variations. Our results show a markedly skewed distribution of values…The reason for the wide inter-individual variation in healthy abstaining individuals is hard to explain".  Jones et al., "Determination of Endogenous Ethanol in Blood and Breath By Gas Chromatography, 18 Pharmacology, Biochemistry and Behavior 267 (1983).

How many folks, with "immaculately conceived" alcohol in their systems, have been arrested and convicted for DUI? These people were innocent, right?

Wrong. In the rush to convict drunk drivers (and with federal pushing), all states have long since passed so-called "per se" laws: driving with a BAC of .08% or more. Neither intent, negligence or even knowledge is required. The crime consists of simply having the alcohol in your body.

Even if you’ve had nothing to drink.
 

Finally, the fact of refusing can be used as evidence of “consciousness of guilt” in trial — a practice which has been held by the U.S. Supreme Court not to be a violation of the Fifth Amendment right against self-incrimination. (See my earlier post, “Believing You Have Constitutional Rights in a DUI Case Can be Dangerous”.)

The reason for harsher treatment is, of course, to encourage suspects to provide evidence considerably more reliable than an officer’s opinion: it is the evidence that is desired, more than a desire to punish for not cooperating. It would follow, of course, that if a suspect changes his mind and agrees to provide a blood, breath or urine sample — what is referred to as “curing” the refusal — there would be no penalties.

Wrong — in most states. A summary of the situation was presented by a New Jersey appellate court where the defendant had initially refused to take a breath test until he could speak with his attorney:

We have been referred to various out-of-state decisions in the briefs of counsel. The majority rule in those cases which have an implied consent statute like ours….is that the initial refusal is final and hence that there is no right to “cure” an initial refusal… The cases expressing the majority view essentially turn on the question of the unreasonableness of having police officers turn aside from other duties to administer a test after the driver has initially refused. The cases allowing a “cure” generally do so on the basis that a change of mind after a relatively short delay does not prejudice the presentation of the state’s evidence nor defeat the purpose of the implied consent statute. State v. Corrado, 446 A.2d 1229.

The New Jersey court decided to follow the majority approach. A Florida appellate court, however, chose the opposite view:

The subsequent consent to take the test cures the first refusal when the request to take the first test is made within a reasonable time after the the prior first refusal…. By approving a flexible rule we believe that this important evidence will be more frequently available and therefore the prophylactic purpose of the implied consent law will be achieved. Larmer v. State, 522 So.2d 941.

The disagreement, of course, reflects two very different underlying philosophies: Which is more important — obtaining key evidence or punishing non-cooperation? The minority recognizes that actual evidence of blood-alcohol concentration is crucial; the majority prefers to focus on deterring future suspects from refusing. Which is the “correct” view?

As usual, California has adopted its own approach: If a suspect refuses, he can be physically restrained and a blood sample forcefully taken from him — and he will still be charged with a refusal.  Many other states are following this approach.