Monthly Archives: September 2012
So I’ve posted repeatedly in the past about the pointlessness (not to mention questionable constitutionality) of DUI roadblocks (aka "sobriety checkpoints"). See, for example, Do DUI Roadblocks Work?, Do DUI Roadblocks Work? (Part 2), Are DUI Roadblocks Constitutional?. And I’ve commented on the ridiculous extents to which cops will go to find a "DUI". See, for example, DUI in a Wheelchair?, DUI on a Horse? and DUI on a Lawn Mower.
In today’s news, we have both….
Bicyclist Arrested on Suspicion of Riding Under the Influence
Red Bluff, CA. Sept. 22 – A man was arrested after he was found to be riding a bicycle while impaired, police said.
The arrest came during a sobriety checkpoint held Friday in Red Bluff, said officers with the Red Bluff Police Department. They said Christopher Pence, 30, of Paradise, rode his bike into the checkpoint area. Officers said they stopped him because he didn’t have a headlight on his bike, as required by law.
Police said Pence appeared intoxicated and was arrested on suspicion of riding a bicycle while under the influence.
About 240 drivers were also screened between 8 p.m. and 1 a.m. One man was issued a citation for an outstanding warrant from Butte County. Two others were issued citations for driving with a suspended license, and two other drivers were driving with expired licenses.
Another successful DUI roadblock: 240 drivers stopped…no DUIs — but they made the world safe from one tipsy bicyclist!
Just when you thought MADD's "War on Alcohol" — I mean "War on Drunk Driving" – had reached the limits of insanity….
Kentucky Man Charged with Riding Under the Influence
Lexington, KY. September 19, 2012 – A Kentucky man was arrested for driving under the influence in what deputies have called unusual circumstances. The man was riding a horse.
Danny Reynolds was riding his horse on a rural road near his house about 8 miles south of Nicholasville in Jessamine County.
Sheriff's deputies told the 55-year-old to get down from his horse. They said he staggered while dismounting the animal. Reynolds said he staggered because he was severely diabetic and feeling light-headed.
Officials said tests showed Reynolds' blood-alcohol level was two time over the legal limit. The arresting officer also found rolling papers and marijuana in his pockets.
Reynolds told CBS affiliate WKYT he drank a couple beers to celebrate his son's birthday, but did not think he was drunk. He said he normally doesn't drink.
According to the arrest report, "(Reynolds) had several beers in his saddle bag and a mason jar which he identified as moonshine."
Chief Deputy Allen Peel admitted it was a unique case, but the deputies were concerned about Reynolds' safety.
"He could have swerved into a car, causing danger to himself and others," said Peel.
Reynolds was charged with operating a non-motor vehicle under the influence, possession of marijuana and drug possession.
"I really didn't mean to cause any harm," Reynolds said. "I definitely learned my lesson and I hope other riders pay attention."
Similar cases have happened in Tennessee. A woman was arrested in 2009 while riding a horse in the Shelbyville Christmas parade. She was charged with public intoxication.
And if you think this Kentucky case is an isolated aberration, see my posts DUI on a Horse? (Pennsylvania), DUI on a Horse (California), DUI on a Horse (Alabama) and Drunk Riding (Colorado).
What's next, riding a bicycle drunk? Or maybe driving a Zamboni on an empty ice rink under the influence? Or a lawn mower? Or even DUI in a wheelchair?
The purpose of "field sobriety tests" (FSTs) is, of course, to determine if a driver is under the influence of alcohol. Rather than let the officer arrest anyone he wants, the tests supposedly provide objective evidence of impairment from alcohol.
The usual DUI investigation includes the administration of 3 FSTs to the driver. Commonly, this consists of the 3 "standardized" FSTs (SFSTs) recommended by the National Highway Traffic Safety Administration: walk-and-turn, one-leg-stand, and horizontal gaze nystagmus (the "eye test"). If some cops aren’t happy with the results, they may administer one or two more tests, hoping that the suspect will finally fail one of them.
And then again, some cops just ignore the evidence…
Tennessee: Improper to Arrest Someone for Passing DUI Test
Knoxville, TN. Sept. 5 — A Tennessee motorist who passed six roadside sobriety tests should not have been arrested for driving under the influence of alcohol (DUI), the state Court of Criminal Appeals ruled Friday. The three-judge panel rejected the attempt by prosecutors to overturn a trial court’s finding that David D. Bell should not have been taken into custody on January 12, 2010 after he displayed "excellent" mental acuity after being pulled over by a county sheriff’s deputy.
Bell had made a wrong turn in a construction area, briefly driving on the wrong side of the road — a mistake that a number of other confused drivers had made that day. Sevierville Police Officer Timothy Russell, who had extensive DUI training, arrived on the scene to take over from the deputy. Russell asked Bell to perform a four-finger count; say the alphabet from the letter G to S; identify the year of his fifth, sixth or seventh birthday; perform a one-legged stand while counting to thirty; and do a nine-step walk-and-turn. On the stand, Officer Russell testified that his mental performance was excellent, but that Bell "did not plant and turn as I had instructed him to." So Russell placed Bell under arrest.
Officer Russell admitted he did not follow proper procedure by turning off his flashing blue lights, which is a known source of distraction for the plant-and-turn test. After reviewing dashcam video from that night, the trial judge rejected Officer Russell’s conclusion.
"I honestly think that he did pretty dog-gone good on the field sobriety tests, better than most I’ve seen," Sevier County Circuit Court Judge Rex Henry Ogle observed. "I couldn’t pass them as well as he did."
Judge Ogle found the initial traffic stop legitimate but granted a suppression motion because the arrest went too far. The three-judge appellate panel also reviewed the videotape and sided with the trial judge. The appeals court found ample reason to suspect Bell might have been intoxicated, but the probable cause evaporated after testing.
"We interpret the slightly more colorful comments made by the trial court in its ruling from the bench on the defendant’s suppression motion as a finding, as a factual matter, that the defendant passed all of the field sobriety tests that he was given," Judge John Everett Williams wrote for the three-judge panel. "The state is not required to perform field sobriety tests on an individual prior to arresting him or her for driving under the influence. However, if the state chooses to administer such tests, it may not simply disregard the results if the individual involved performs them successfully. Had the defendant failed any of the field sobriety tests, we have no doubt that the state would have argued that the defendant’s failure provided strong evidence in support of probable cause. We believe that the defendant’s consistent success on a battery of such tests is likewise compelling evidence — in the other direction."
To paraphrase the great Humphrey Bogart film, Treasure of the Sierra Madre…"FSTs? FSTs! I don’t need no stinkin’ FSTs!"
As a former law professor, I would start my criminal law courses with the basics: There are two kinds of laws: malum in se and malum prohibitum. With the first, a law exists because the prohibited conduct is inherently bad; murder, theft and rape would be obvious examples. With the second, the conduct is illegal simply because we decide that it should be; gambling, prostitution and possessing drugs come to mind.
The malum in se laws are easy: Is there a victim? The malum prohibitum are more difficult: society must ask itself what kinds of conduct that does not directly involve harm to another should nevertheless be punished for whatever reason. Often, the types of conduct included in this category are based upon moral judgments.
Where does drunk driving fall? DUI carries increasingly severe criminal penalties: jail sentences, extensive license suspensions, stiff fines, alcohol education programs, ignition interlock devices, probation, and often more. Is it inherently bad, or is it bad because we’ve decided to punish it — possibly for unrecognized moral reasons?
There is no victim in the vast majority of DUI cases. However, the severity of the punishment would seem to indicate this to be a malum in se offense, presumably on the grounds that there is a possibility that someone could be injured or killed. According to MADD’s own statistics, there were 159 million alcohol-impaired trips in one recent year, with 11,773 alcohol-related fatalities. So it is dangerous, although the likelihood of a death is very small: about 1 in every 13,500 DUI incidents, according to MADD’s figures. One must add to this, of course, the likelihood of non-fatal injury.
So….Do we severely punish drunk driving solely because it is dangerous to human life — or is it at least partly because of a moral judgment about alcohol?
Before we answer that, let’s apply the same analysis to distracted driving — driving while talking on a cell phone or while texting (DWT), for example. In many states it is perfectly legal to engage in such behavior; in others, it carries a minor fine with no other consequences (in California, for example, there is a small fine, there is no criminal record – and the police rarely enforce the law).
Yet….All of the recent studies have come to the same conclusion: distracted driving is at least as dangerous to human life as drunk driving. See my earlier posts, Alcohol vs Cell Phone: Which Is More Dangerous?, Driving Under the Influence of…a Cell Phone, Most Dangerous: Drunk, Drowsy or Distracted?, The Difference Between DUI and DWT Is…?, Inebriated or Texting – Which Is More Dangerous When Driving?, Feds Crack Down on DUI – and Cover Up DWT,
So….If the risk of harm is similar, why the huge disparity in the laws? Why is one morally condemned and harshly punished — while the other receives a slap on the hand, if that?
If I haven’t made it clear, my point is not that drunk driving should be legal: it is dangerous and should be punished. But the punishment should be based upon the degree of danger — not upon a prohibitionist condemnation of alcohol. And equivalent punishments should be meted out for distracted driving.