Archive for November, 2005

Turning a Corner on the MADDness?

Friday, November 4th, 2005

After all of these years, we may finally be turning the corner on years of MADD’s unchallenged zealotry. The recent backlash from Washington DC’s "zero tolerance" policy may have been the beginning — and is apparently fostering a more critical look at the "war on drunk driving". The following commentary, for example, questions the .08% standard as well as the efficacy and motives for DUI roadblocks (see my earlier posts "Roadblocks for Fun and Profit" and "How to Make a Million in the DUI Business"):

Lower DUI threshold more dangerous?

Washington DC, October 30 Kudos to the D.C. Council, which recently voted in favor of a resolution by Carol Schwartz, at-large Republican, to nix the District’s unjust "zero tolerance" policy of allowing police to arrest motorists who register any alcohol at all after stopping them for other offenses…

The larger problem, however, is the fact that since 2000, the federal government has mandated a blanket .08 legal threshold for the entire country. We’ve now had five years of data to measure the effectiveness of the .08 standard, and the data strongly suggest that not only is the standard too low, but the resources we’re expending to enforce it may actually be making our roadways more dangerous.

Here’s how: When President Clinton signed the .08 law in 2000, every state was forced to either comply with the law or give up millions of dollars in federal highway money. Critics at the time pointed to numerous studies showing that motorists aren’t significantly impaired at .08, and that in fact, most drunk driving fatalities occur at .15 or higher. Lowering the national standard from .10 to .08, then, was a bit like lowering the speed limit from 55 to 50 to catch motorists who zip along at 100 miles per hour.

In 1992, the Supreme Court gave its consent to random sobriety checkpoint roadblocks, despite conceding that they are probably a violation of the Fourth Amendment. Writing for the majority, Chief Justice William Rehnquist ruled that the threat to highway safety posed by drunk driving justifies suspending our constitutional protection from illegal search and seizure, as well as our Fifth Amendment right against self-incrimination. Drunk driving activists seized on the ruling and moved to employ roadblocks all over the country.

Critics of roadblocks and .08 predicted that (1) the lower standard would actually cause an increase in drunk driving deaths, as scarce law enforcement resources are diverted toward motorists who don’t pose a real threat to highway safety and away from the "hardcore" drunks that do; and (2) these roadblocks will be set up under the guise of drunk driving, but will in effect become little more than revenue generators, as police use them to issue citations for any number of less serious infractions.

Both predictions have proven true. From 2000 to 2003, drunk-driving deaths began to inch upward again, after two decades of decline…. People with a blood alcohol content (BAC) above .10 account for 77 percent of alcohol-related fatalities (the average drunk driving fatality involves a BAC of .17). In other words, motorists with very high blood alcohol levels account for an increasing percentage of highway fatalities, but a decreasing percentage of arrests.

Of course, the federal government still doesn’t get it. The top bullet point in the NTSB’s press release’s action agenda was to install yet more "frequent and statewide sobriety checkpoints."… Roadblocks have also turned into naked money-generators. A study of five Sacramento roadblocks found 22 suspected DUI arrests, but 315 citations and 215 vehicle confiscations for unrelated offenses. A newspaper account of a North Carolina roadblock reported 45 non-DWI offenses and just 3 suspected DWIs. A study of a recent San Diego roadblock found 1,169 stops, 27 citations, 10 vehicles impounded — and one DUI arrest.

Here in D.C., police have been criticized for keeping a database of personal information collected from all motorists stopped at roadblocks — even those accused of no infraction at all. Many police departments have grown so frustrated with the process that they’ve given up roadblocks altogether, as well as the federal funding that comes with them…

In the larger picture, Congress should revisit its blanket .08 standard. The evidence so far suggests that the lower threshold is not only targeting motorists who aren’t significantly impaired, it may well be making our roads more dangerous.

Finally, signs of politically incorrect intelligence in the media, along with the courage to challenge MADD’s evangelical crusade toward Prohibition.


$ Million Verdict for Judge’s DUI Arrest

Wednesday, November 2nd, 2005

I’ve read a lot of commentary about the recent million-dollar verdict against a Colorado State Trooper for arresting a judge for DUI — most of it outraged. Let’s take a closer look….

Judge wins $1 million verdict against State Patrol trooper

Denver Post, October 29. A federal jury on Friday awarded a municipal judge from southern Colorado a $1 million verdict against a Colorado State Patrol trooper who arrested the judge on a drunken-driving charge in 2001.

The jury found the trooper did not have probable cause to arrest John S. Wilder for drunken driving and prohibited use of a weapon, and that he violated the judge’s civil rights. Jurors also found that Cpl. Kevin P. Turner was not entitled to qualified immunity.

Wilder, of Monte Vista, said he had offered to settle the lawsuit without a monetary award if arrest procedures were modified, an offer he said was refused…. When Wilder’s blood-alcohol content was tested, it was well below the limit that Colorado law defines as driving while impaired and the charges were dropped. The judge sued….

The initial reaction, of course, will be that this is a classic example of the courts running amuck, that the Trooper was just doing his job and got railroaded because the guy was a judge, that cops will stop arresting drunk drivers if they’re afraid of getting sued. But not so fast….. In this country, it’s a violation of a citizen’s civil rights to be arrested without probable cause to believe that he has committed a crime. So what was the probable cause to arrest the judge?

The case began on a November evening in 2001 when Turner stopped Wilder, a municipal judge in Monte Vista, for speeding. The trooper said Wilder’s breath smelled of alcohol and he had watery, pinkish eyes. The judge admitted he had consumed a glass of wine 10 minutes before being pulled over, according to court documents.

The trooper also saw an open, airline-size bottle of wine in the car, which was legal at the time. The judge told the officer he had a license to carry a concealed weapon and that there was a handgun in the car. Wilder initially refused a roadside sobriety test and was arrested. Because it is a misdemeanor in Colorado to have a gun while drunk, the judge also was charged with prohibited use of a weapon.

So, the Trooper’s evidence that the judge was intoxicated consisted of:

1. Watery, pinkish eyes; 2. Alcohol on the breath; and 3. The judge said he had a glass of wine 10 minutes earlier.

Is this sufficient to reasonably believe that he was inebriated? Of course not. You would expect an older person to have "watery, pinkish eyes", especially late at night. Alcohol on the breath tells us nothing but that there has probably been some consumption of alcohol at an earlier time. The statement about a glass of wine means little, other than explaining the odor of alcohol, and will hardly render someone intoxicated (in any event, the minimal alcohol involved had insufficient time to be absorbed into the blood stream). And, of course, the absence of field sobriety tests is immaterial: the judge not only had every right to decline the test, he probably realized from listening to DUI cases in his courtroom how unreliable these "tests" really are (see my earlier post, "Field Sobriety Tests: Designed for Failure?").

But what about the handgun? Easy: There is no probable cause to arrest if the gun’s possessor is not drunk — and watery eyes with an odor of alcohol is not "drunk". I’d say there was nothing anywhere near probable cause to arrest the judge, and the Trooper darned well knew it — but he also knew he had himself a bonafide trophy judge. I also find it interesting that the judge was not interested in the money: he offered to drop the lawsuit "if arrest procedures were modified". A million bucks seems a bit steep, but maybe some officers will get the message: you are not above the law. And if you don’t want to get sued, don’t arrest people who haven’t committed a crime.


Big Mother is Watching

Tuesday, November 1st, 2005

One of the intimidating methods employed by MADD in recent years is monitoring judges and prosecutors in DUI cases, reporting on their actions, and compiling statistics to be used in the media at election time.  The following is just one recent example of this coercive tactic:

Local MADD Activists Plan to Sit In on DUI Cases

The Virginian-Pilot, October 31.   A few extra sets of eyes and ears soon will be monitoring drunken driving cases in courtrooms throughout Hampton Roads.

Activists with Mothers Against Drunk Driving plan to mobilize volunteers who will go daily to general district and circuit courts and record details of drunken driving cases, said Linda Kaye Walsh, vice chairwoman of the group's state chapter.

MADD already has volunteers in court systems in 10 states, including North Carolina, who sit through proceedings, filling out forms that track details such as the names of the defendants, judges, prosecutors and defense attorneys and the disposition of each case….

The goal of ''court monitoring," Walsh and others said, is to look at how the judicial system as a whole deals with DUI cases….

"I'm excited," (Walsh) said, holding up her ever-growing manila file folder with information about dozens of cases. "And here's a prime example of why."

Walsh has long been critical of attorneys who try to get DUI charges lowered to reckless driving. She said she hopes that having the volunteer observers in the courtrooms will discourage the practice.  [Emphasis added]

"It's putting the judges on notice," she said. "It's putting the prosecutors and attorneys on notice as well." 



Imagine you are accused of drunk driving.  Now imagine that you are in a courtroom where the judge and prosecutor are being watched by silent observers in the audience, observers   who want your conviction and the maximum penalty — and who can influence reelections.

Big Mother is watching.



(Thanks to Jeanne M. Pruett of Responsibility in DUI Laws, Inc.)