I gave a lecture to a national organization of attorneys last week in which I was asked, among other things, to anticipate the future course of DUI laws in the United States. Bearing in mind the words of Adlai Stevenson ("We can chart our future clearly and wisely only when we know the path which has led to the present"), I predicted the following…..
The Past: The original laws simply outlawed driving while impaired.
With the arrival of primitive breathalyzers, and the counsel of the American Medical Association, impairment was presumed with a blood-alcohol concentration (BAC) of .15%. Over the years this was dropped to .10%, then .08%, and finally the laws were added making the BAC — not impairment — the offense. There are now bills before state legislatures to drop it to .05%. So-called "zero tolerance" made it a crime for drivers under 21 to have even .01% BAC.
The Trend: From focusing on actual impairment, to facilitating arrests and convictions by focusing on artifical BAC levels — and, finally, to the mere presence of alcohol. The emphasis has shifted from addressing the danger (impaired drivers) to facilitating arrests and convictions.
The Future: The "zero tolerance" laws will be applied to drivers of all ages. Criminal liability will be expanded to include attempted drunk driving (regardless of lack of specific intent), as well as vicarious liability: accomplices ("aiding and abetting"), conspiracy and so-called "Dram Shop Act" liability (providing a drink to someone who may drive).
The Past: Originally, the arresting officer gave his opinion of impairment based upon his observations of driving and symptoms, as well as field sobriety tests. The emphasis shifted to increasingly sophisticated breathalyzers and to blood tests administered by nurses or technicians. However, portable and handheld breath testing devices have more recently been used at the scene to determine probable cause to arrest; the later test on a more sophisticated breathalyzer at the station continues to be used as evidence in court. Some courts are beginning to accept the portable units into evidence.
The Trend: An increasing emphasis on money and expediency rather than accuracy and reliability.
The Future: Evidentiary breathalyzers will be replaced with simpler, cheaper (and less accurate) handheld units at the scene of arrest. Blood samples will be obtained by the officer with his syringe at the scene. Saliva tests may gain acceptance.
The Past: There has been a parade of adverse Supreme Court decisions and a steady erosion of constitutional rights in drunk driving cases — what I have called "The DUI Exception to the Constitution". These have included approval of sobriety roadblocks (Sitz v. Michigan); double jeopardy (immediate license suspensions followed by criminal prosecutions); right to counsel; self-incrimination (Neville v. South Dakota); presumptions of innocence (if .08%, then presumed under the influence; if test taken within 3 hours of driving, BAC presumed to be same as when driving); confrontation; jury trial (Blanton v. North Las Vegas); etc.
The Trend: From the protection of the citizen from police violations, to the protection of the police from legal interference.
The Future: Increasing loss of constitutional protection — notably, the complete loss of the right to a jury trial. With the clear focus on cost and expediency, DUI cases will be handled in an administrative setting as license suspensions currently are: the two procedures will simply be consolidated, although criminal penalties will remain. There may be no judge, but only an administrative hearing officer.
The Past: DUI laws have always been a state-prescribed crime. With the prompting of special interest groups like MADD (Mothers Against Drunk Driving) and the desire of politicians to curry favor with voters, this has gradually changed. Using a "carrot and stick" approach with highway funds, the federal government has forced states to change their laws and penalties in such ways as: "per se" laws; .08% BAC; "zero tolerance" for drivers under 21; automatic license suspensions; standardized field sobriety tests; federally approved lists of breath testing machines.
The Trend: The federalizing of a traditionally state offense.
The Future: With the use of the Constitution’s Commerce Clause, DUI laws and penalties will become "federalized". However, without the ability (or inclination) to arrest and prosecute these crimes in the federal courts, the states will be left to continue processing them in their own courts or administrative hearings.
The New Prohibition
The Past: The Eighteenth Amendment to the Constitution was primarily a woman’s movement that ended as a failed experiment. Since then….The BAC levels for DUI have steadily dropped from .15% to .08%, and there are efforts to reduce it further. Drivers under 21 already face .01% — alcohol prohibition as to driving.
The Trend: In 1999, MADD (primarily a woman’s movement) formally changed its mission statement from drunk driving to include "the problem of underage drinking" (not underage drinking and driving). The "problem" of drinking at all is on the horizon.
The Future: The movement will again fail, this time without obtaining a constitutional amendment. This country needs alcohol and drugs too much.