Are Alcoholics Protected by the ADA in DUI Cases?

Posted by Lawrence Taylor on July 14th, 2006

I’ve argued in past posts that the criminal justice system’s punitive approach to the drunk driving problem has proven ineffective (see “MADDness”). Pushed to come up with a better approach, I later suggested that the primary danger is not the social drinker but the recidivist/alcoholic — and that throwing him in jail accomplishes nothing (see “Time for a Change”). The punitive model does not work with the alcoholic; the rehabilitative model is the only one that makes sense.

I was reading an email today from a very sharp DUI attorney (and friend and fellow Berkeley alum) in Arizona, Jeffrey Siirtola. Jeff suggested that requiring DUI suspects with physical infirmities to perform field sobriety tests was a violation of the Americans with Disabilities Act of 1990. Similarly, punishing a person with impaired lung capacity for being unable to breath hard enough to provide a breath sample.

Makes sense. Later, I asked myself: What about alcoholics? Isn’t alcoholism a disease or condition — and aren’t they being discriminated against by being thrown in jail because of their condition?

No, I argued back, they are being thrown in jail because of their condition and choosing to drive a vehicle.

But wait a minute, isn’t that a Catch-22? We outlaw DUI because mental and physical facilities are impaired, so wouldn’t the decision to drive be impaired by the alcohol to which the alcoholic is addicted?

Now, before you decide I’ve finally lost it, consider….

1. Alcoholism is a recognized disease.

2. The Americans with Disabilities Act applies to alcoholics: “…alcoholics are individuals with disabilities, subject to the protections of the statute.” (28 CFR Part 35, Sec. 35.13, Department of Justice, Offices of the Attorney General)

3. The provisions of the ADA apply to “any State or local government; any department, agency, special purpose district, or other instrumentality of a State or States or local government” (supra) and, thus, to police, prosecutors and courts.

4. The criminal justice system presently does not distinguish between alcoholics and those who do not suffer from the disability.

5. Thus, the ADA requires that cops, prosecutors, judges make reasonable accomodation for this disability….unless this would create a “direct threat” to the safety of the public.

Ahhh, public safety…There goes the ADA argument, right?

No. It would be difficult to argue that attempting to rehabilitate chronic drunk drivers constituted a “direct threat” to public safety. In any event, the Act provides that this reservation applies only if the threat “…cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services”. And can it be eliminated by modification of policies, etc.? Yes: modify the sentencing by “provision of auxiliary aids or services” — i.e., rehabilitative services rather than jail. “Direct risk” to the public is further minimized by temporarily depriving the alcoholic of driving privileges, as is already done in DUI cases.

Thus, the present method of dealing with alcoholics charged with DUI may well be a violation of the Americans with Disabilities Act — with the attendant possibilities of very large civil law suits.

The bottom line, however, is that society would be better off — safer — if the problem of alcoholics who drink too much and drive was addressed by a rehabilitative approach rather than a punitive one.

  • Judy

    First off I love you blog, but since this has been a passion with me for many years (MADDness) why wouldn’t I?
    I’m surprised that there has NOT been a huge class action lawsuit, especially in Calif. where the Business and Professions Code section 252 is real specific as to who can practice medicine and who can’t.
    any person who practices or attempts to practice, or who advertises or holds himself or herself out as practicing, any system or mode of treating the sick or afflicted in this state, or who diagnoses, treats, operates for, or prescribes for any ailment, blemish, deformity, disease, disfigurement, disorder, injury, or other physical or mental condition of any person, without having at the  time of so doing a valid, unrevoked, or unsuspended certificate as provided in this chapter or without being authorized to perform the act pursuant to a certificate obtained in accordance with some other provision of law is guilty of a public offense, punishable by a fine not exceeding ten thousand dollars ($10,000), by imprisonment in the state prison, by imprisonment in a county jail not exceeding one year, or by both the fine and either imprisonment.    (b) Any person who conspires with or aids or abets another to commit any act described in subdivision (a) is guilty of a public offense, subject to the punishment described in that subdivision.    (c) The remedy provided in this section shall not preclude any other remedy provided by law.
    Sounds to me like a whole bunch of cops, D.A.s, probation officers, Judges might be breaking laws, just to get their guy. Plus I would LOVE to see MADD as conspiring with them LOL.
    Does the constitution give them a “title of Nobility” to get around this?  If so, then you and I can practice medicine as well, no need for that law!  Sure saves a bunch on medical malpractice insurance, college tuition fees, years of study, etc… instant medical practice.  How about a Dr. coming into the court room, he might like to be a attorney, judge, or other court officer… HUM, come to think about it, what if after we are treated by those presuming to have the right to prescribe, treat and diagnoses us, we don’t like it, can we sue them for malpractice, patient/physician priviledge when they tell the whole world all about our mental/physical condition?
    A class action lawsuit would be great, I think that all 1.6 Million of those that get DUI tickets each year would gladly sign up..
    Just a big stick, hope it can be used.

  • Warren Redlich

    Love the idea. I was thinking of something similar. However I found this:

    85 Hernandez v. England, EEOC Appeal No. 01A41079 (March 30, 2004); see also Bekker v. Humana Health Plan, Inc., 229 F.3d 662, 672 (7th Cir. 2000) (upholding termination of physician for treating patients while under the influence of alcohol); Maddox v. Univ. of Tenn., 62 F.3d 843, 848 (6th Cir. 1995) (upholding employee’s termination because although alcoholism may have compelled employee to drink, it did not force him to drive or engage in other inappropriate conduct).

    My idea was whether using “impaired speech” as a factor in probable cause for arrest violates the ADA for someone with a speech impediment.