Time for a Change

Posted by Lawrence Taylor on June 7th, 2006

In response to my recent post ("MADDness") about the failure of the two-decades-old "War on Drunk Driving", I’ve been reminded by readers that it’s one thing to say the system doesn’t work — and quite another to offer solutions. Point well taken, so here goes… But before looking at the solution, let’s first understand the problem. One does not deal with 1000s of DUI clients over the years without drawing certain conclusions:

1. The system, clearly, does not work: despite unfair laws, constitutional violations and increasingly harsh penalties, the problem remains…and people continue to die on the highways.

2. Playing games with statistics, as MADD and the government are so fond of doing, only obscures the problem.

3. The problem is not black-and-white, but involves shades of gray. It is convenient to punish anyone with a .08% blood-alcohol concentration, but neither fair nor productive. It is easy to lump all offenders into the same category of "drunk drivers" and simply adjust jail time by a reading on a machine, but neither fair nor productive.

4. You cannot simply identify what the problem is ("drunk drivers are dangerous"), but who the problem is. The problem is not people who drive with .08% BAC or higher, but people who represent a real danger to others on the highway. Who are they?

The problem is the person who severely abuses alcohol and chooses to drive. You can call him an "alcoholic", but it has been my experience in dealing with those 1000s of clients that there are different kinds of "alcoholics" and that using a simple label is no answer (we do love to put things in neat categories). Statistics repeatedly show that the vastly disproportionate majority of alcohol-caused injuries and deaths are caused by a few "problem drinkers" (for want of a better term). Thus, the first objective in any solution is to identify these individuals. In my experience, they can usually be identified by a combination of factors:

1. Their blood-alcohol level is not just high — it is very high, say .16% to .30% or more.

2. This is probably not the first DUI — and prior incidents are likely to be relatively recent.

3. There is a genetic flag: the individual is likely to have one or two "alcoholic" parents.

All right, we’ve identified some markers for who the problem is , but what do we do with them? To begin, let’s understand what we don’t do: we don’t hit them with stiff jail sentences. If we do, we simply remove the person from society for a few days or months — and on the day he gets out, he gets in his car and drives directly to a bar. What has been accomplished? Is society being protected — or are we simply punishing people for drinking too much? Since the punishment model clearly doesn’t work for the problem drinker, we must consider the other criminal justice models: isolation, deterrence and rehabilitation.

1. Isolation. Yes, we can put the problem drinker in jail for a few months or even a few years, and we are safe from him for that period. But can we really afford to house tens of thousands more inmates? For how long? And what happens when they get out? For that matter, given the evidence, aren’t we punishing them for a genetic condition?

2. Deterrence. How do you deter an "alcoholic"?

3. Rehabilitation. Once the favored approach in the criminal justice system, rehabilitation fell into widespread disfavor many years ago. Yet….Yet, this would appear to be the only logical approach with problem drinkers.

Ok, but what about the driver who is not a problem drinker but who is simply impaired from drinking too much?

Answer: Treat him like any other misdemeanant.

Statistically, we know he is unlikely to cause serious injury or death, but there is undeniably some risk there. Can this individual be deterred from such future conduct? Unlike with the "alcoholic", statistics show he can. Thus, it may be fair and productive to impose a fine on the typical first-offender, perhaps even suspend his driver’s license for a short period; if a high blood-alcohol level is involved, say .15%, the punishment may include a 2-day jail term. But certainly not the punishments so destructive to families and careers that are now being administered to all caught up in the dragnet.

While we’re at it, a refreshing approach — and a healthy one for society — would be to reinstate constitutional rights in DUI cases: due process, presumptions of guilt, denial of right to counsel, double jeopardy, the 5th Amendment right against self-incrimination, the right to confront witnesses, 4th Amendment roadblock violations, ad nauseum. (See "The DUI Exception to the Constitution".)

Does all of this finally solve the drunk driving problem? No: people will always drink and drive. But it will focus on the real threat — the truly dangerous driver — rather than on drinking and driving per se. And, in the process, reinstate the essential fairness and due process that has been slowly removed from the criminal justice system.

  • Randy Linamen

    Mr. Taylor,
    Couldn’t agree with you more.
    Knowing little of law. Prior to a five-year incarceration, 1998. I began reading in prison.
    Less than ten minutes under Virginia Code revealed a precedent exonerating me from each DUI (with witnesses).
    An appellate attorney ignored the trial court record. Where at least five clear violations of U.S. Constitution, were undeniable.
    Post conviction counsel required by so-called state and federal laws. Also denied without reason.
    Trudging through federal courts, alone. I was illegaly released from prison early; 2003. In emergency fashion. One week after informing the 4th Cir. Court, of U.S. District Court actions.
    Still, under illegal post release supervision. Which cost me my only son’s final 75 days. Losing his entire 18th – 21st years falsely imprisoned, apparently wasn’t good enough. His last days were lost while I was held in Virginia. He, residing out-of-state. Thank God I managed being with him. For his last  3  minutes of coherent conciousness.  Michael died of internal injuries sustained in a 25mph cycle accident.
    U.S. Supreme Court Clerks continued cover-up for over 3 years.
    Five DUI’s, over 14 years, all below the previously legal limit. All, based upon the first conviction. Despite USSC rulings.
    In 1984, Prince William County Police officer W.A. O’Brien admitted: “He’s been a perfect gentleman and performed his field tests perfectly but blew a .11 [BAC]”. This, an undetermined “issue of ultimate fact” (quoting U.S. Supreme Court). Denied again, January 2005, Va. Ct. Appl., from the Circuit Court were it occured. Questions presented were misquoted to put State in better light. Petition denied by a totally illegible clerk signature (this, after it was supposedly before a judicial panel for 6 weeks).
    You are praised for your honesty with the public Mr. Lawrence. If you can use any documentation of the facts above. Please contact me: randylinamen@comcast.net . I also have documentation of “widespread actual injury” in Virginia, required by a fairly recent USSC precedent.
    “[O]ur Lord” (quoting final clause, U.S. Constitution), also called a ‘drunk’ (See Matthew 11:19 and Luke 7:34).
    Again, thanks for your honesty.
       I, R.R. Linamen, declare under penalty of perjury that the foregoing is true and correct. Executed this 21st day of October, 2006. s/ R. R. Linamen

  • concerned parent

    I have not paid much attention to dui laws until my underage son was charged. His bac was under .08 but over .02. He was driving because his friend WAS IMPAIRED and he took his keys and was attempting to drive him home. He was treated like a criminal and an alcoholic. He was not impaired in any way! It was 6 months of “treatment” and even 30 days of wearing a scram unit. That is another money-making device that is being pushed on the public. I know he learned a lesson from all this, but the punishment really exceeded the crime. Furthermore, this supposedly stays on his record forever, even though a first offense, and could impact his future career choices, jobs, etc. Should someone pay for the rest of their life for a mistake? By the way, he was pulled over for “crossing the white line on the right edge of the roadway.”

  • zorado

    I agree somewhat, chronic drinkers have medical and physiological problems requiring medical help not jail time. My dad was an alcoholic. I do not have a drinking problem nor does any of my sisters or brothers.

    As far as MAD goes, anyone who has been subject to a DUI causing them to be unable to provide for their family and causing a monetary hardship should be able to sue both MAD and the government for supporting laws that violate their constitutional rights and ability to provide for themselves and families.

  • zorado

    I also forgot to say that anyone who talks on a phone, text messages, eats, puts on makeup, road rage, or any other form of distraction even fighting with the kid in the back seat is a danger to others driving. They all should be arrested then we will all get a taste of jail and the law system. Its easy to pass judgement on others but we all have been guilty of putting others at risk. I had someone try to run me off the road because he didn’t want to be the next in line when the road merged. A drunk would have probably let me in.