Drunk driving is bad. It’s potentially dangerous to human life. It should be punished. So, many years ago a law was passed:
"Thou shalt not drive drunk."
It was a fair law and it addressed the problem. So…what happened? Why do today’s laws punish drivers when they are neither "drunk" nor "driving" — nor even in a "vehicle"?
The original laws prohibited driving a vehicle "under the influence of alcohol" — commonly referred to as "DUI". In some states, it’s called "DWI" (driving while intoxicated) or "OUI" (operating under the influence). In other words, the accused had to be (1) driving (2) a vehicle (3) while intoxicated to the extent that he or she was unable to safely operate it.
This changed a few years ago with the passage of so-called per se laws. Prosecutors and groups like MADD were frustrated with the difficulties in proving that a driver was, in fact, under the influence. So legislators, anxious for re-election endorsements from prosecutors, police and MADD, passed a new law:
"Thou shalt not drive with a blood alcohol level of .10% or more."
Well, this made it much, much easier to convict citizens suspected of drunk driving. First, prosecutors no longer had to prove that a driver was impaired in his judgment, reflexes, perception and coordination. All they had to do was produce a number: .10%. Never mind that the American Medical Association conducted studies and announced in 1938 that a driver was only "impaired" at .15%. Never mind that MADD was later successful in getting the number reduced further down to .08% (and is lobbying for further reduction to .05%). And never mind that every person’s tolerance to alcohol varies widely — that some drivers may be under the influence at .07%, while others may not be intoxicated at .11%. The law was no longer interested in whether the driver was a danger or not: the crime was in having alcohol in your body.
The second reason the new per se laws were wildly popular with prosecutors, police and MADD was that the arrested citizen could now be charged with both crimes — DUIand .08%. This had two big advantages. First, it gave the prosecutor two shots at the defendant; if he didn’t get him for one, he might get him for the other. Second, it gave juries that were unsure of the defendant’s guilt an option: convict him of one charge but acquit him of the other. Juries that were not unanimous could use this as a compromise — even if some jurors felt the accused was not really proven guilty.
Just to make it even easier, many courts have followed the California Supreme Court in ruling that the breath alcohol reading cannot be questioned on the grounds that it does not accurately reflect the alcohol actually in the person’s blood. See Bransford v. California. (One dissenting justice in that case, less concerned with politics than with common sense, wrote: "The majority…has on its own created the new crime of driving with alcohol in one’s breath.")
The second half of drunk driving is…"driving". This would seem obvious: how can you be driving under the influence if you’re not…well, driving?
No problem. If you have judges who do not want opposition from prosecutors, police and MADD at the next election, you will have strange judicial interpretations of what "driving" means. And in recent years there has been a flood of judicial interpretations which have stretched the word beyond recognition. A couple of examples:
Just as the judges stretched the meaning of "driving" beyond the limits of credulity, so they also expanded the definition of what constituted a "vehicle". Now, a "vehicle" is commonly understood to mean a car or truck, and so it has been applied for decades. But this, too, has been slowly expanded to include such "vehicles" as:
Horses. See DUI on a Horse
Wheelchairs. See DUI in a Wheelchair
Toy bikes. See DUI on a Foot-High Toy Bike
Golf carts. See The War on Drunk Driving Continues
Zamboni ice machines. See News From the Front
As Humpty Dumpty explained to Alice so many years ago:
"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.”
We used to have laws punishing drunk drivers. They were good laws, designed to protect citizens. Whatever happened to them?