Sober Reflections
By Mitch Berg
Someone sent me an email about my post from Friday re the Seifert/Emmer DUI flap. The writer noted that she believed the current laws are hunky-dory, because:
- Alcohol affects people differently; one person might be fine driving with a .08 Blood Alcohol Content (BAC) while another might act, in theory, like Foster Brooks.
- Prudence says that the suspicion of due process we’ve come to accept with DUI arrests – immediate loss of license – is OK.
- The fact that they were arrested is sufficient grounds to know there’s a problem.
- Driving is a privilege, not a right.
The writer had a point about the alcohol imits. Alcohol affects people differently. And “laws” require objective measures. And while we’re being objective, we should note that there is virtually no evidence that BACs below .1 contribute to fatal accidents (other than the fact that the government calls every accident in which a participant registers a BAC as a “drunk driving accident. Every one. If a meteor fell out of the sky on a car driven by someone who’d had three beers in two hours, it’d be called a “drunk driving accident”. This is done at the behest of groups like MADD, who have become quite unhinged over the years; it’s dishonest at best).
So it’s correct that a BAC level doesn’t tell us everything. Is the person measuring a .08 after having been a .16 six hours earlier, but is sobering up fast? Is it someone who had four shots in thirty minutes, and is on her way up to a .18? Is it a high school kid and inexperience drinker and new driver who had three beers in two hours and is speeding around like Mario Andretti with all sorts of liquid driving skill, or is it a 35 year old experienced driver who is driving just fine but has a broken taillight and runs afoul of a cop who needs to fill his quota?
The question you have to ask yourself is “is the law’s intent to curb drunk driving deaths, or is it to create criminals by criminalizing a fairly common behavior?” Since there is no objective evidence that casual drinkers with ’08s cause deaths on the highway (that’s all people well north of .1), and the serious problems are most normally caused by repeat offenders who routinely driver well above .1, it’s most likely the latter – especiallly when you consider that the law distinguishes not one iota for the circumstances behind ones’ mild intoxication. When the sheriffs put up a roadblock and start breathalizying people wholesale and corralling everyone who blows a .08, they’re not asking themselves “is this person on the up or down swing, do they have a history, can they rationally be expected to be a problem”.
No, they’re just racking up the fines. DUI is HUGE moneymaker, in fines, whiskeyplate fees, forfeited vehicles, court workloads (requiring more court staff, which feeds bureaucratic empires) and so on. It’s in the state’s interest to make sure there are more arrests. Cynically, it means they control more people (which Emmer’s second proposal would have partially rectified); without the cynicsim, it is an amazing amount of money coming in to government and government’s friends, the State Bar.
I was shocked when I wrote about this a few months ago that something close to 10% of Minnesotans have had some kind of drunk driving arrest. 10%? That’s astounding. Are 10% of the drivers on the road a danger? If that were true, none of us should be on the street.
It’s absurd, of course. Absent any kind of objective data linking .08 BAC with statistically significant numbers of fatalities (to say nothing of being *responsible* for them, which is another whole thing), it’s about nothing more than criminalizing behavior.
The letter from Sandra Berg cast aspersions about Rep. Emmer’s support for two bills in the legislature last year (18 years after his most recent DUI arrest); one that would allow those accused of drunk driving to keep their licenses under certain circumstances, and another that’d take DUI arrests off the public record after 10 years of good behavior.
Here’s the deal principles are hard. The thing about a principal is that it can hurt you as well as help you. Due process and “innocent until proven guilty” are principles, which most of us agree are good ideas. But sometimes those principles mean an alleged murderer goes free due to a hung jury. Ouch.
So when the letter writer writes “I think the arrest is sufficient prima facie grounds for [seizing licenses on arrest rather than conviction] to be a prudent thing” – well, isn’t that true for EVERY crime? Think of what we could do for street crime if we just locked up everyone accused of any crime at all! Or if we gave cops portable “Field Lethal Injection Kits” to use on accused murderers!
Saying “Driving is a privilege” doesn’t cut it; it’s a privilege that is a vital part of being able to earn a living for most people. The fact is, in every other crime judges have (per the Fifth Amendment) the right to consider extenuating circumstances in assessing the accused’s circumstances between arraignment and trial; someone accused of five murders who has a twenty year criminal record and a speedboat waiting to take him to Venezuela might not get bail; someone in jail for the first time for having 15 unpaid parking tickets might get sprung for $100 and no other consequences. Why is drunk driving any different? Why can someone who got a .08 and has no record at all get the incredible burden of being without a drivers license, the same as someone with a .2 who’s already had several accidents and arrests?
Because a well-heeled, emotionally manipulative pressure group has made due process an unfashionable principle, that’s why.
So here’s the question; do you believe in the principles of due process and innocence until proven guilty by court and jury? Or do you only believe in it for crimes where there is no emotional baggage attached?
Walter Scott Hudson writes on the subject.
April 26th, 2010 at 6:42 am
You’re pretty clear about what you dislike about DUI laws. I just finished reading the story about six lives snuffed out near Cambridge. All the evidence isn’t in, but it appears that a sixteen year old driver is at fault and that alcohol may have been an issue. How does society deal with this tragedy? Any way to deter others from the same deadly chain of bad decisions? Here’s my take: you are convicted of driving under the influence and cause a fatality (and we can quibble about whether .08 or .1 or some other parameter is the defintion) and you go to prison for a very long time. No parole. No good behavior sentence reduction. I’m not a member of MADD, by the way. But the idea of a carful of drunks crossing the line at me scares the crap out of me. When I was in practice and on call, it wasn’t unusual for me to be driving at 2 AM, and yeah, I thought about the possibility a lot.
April 26th, 2010 at 6:51 am
Oh, I do too.
But there are really two different questions, here; How do we prevent fatalities, and what defines “drunk driving?”
The current low-end definition of the latter has nothing to do with the former.
April 26th, 2010 at 7:59 am
The Cambridge accident, while terrible actually proves the point that draconian laws don’t prevent these types of accidents. As I understand it, many laws were broken here–16 year old driving after underage driving curfew, multiple kids in the car being driven by an under 18 driver, underage drinking—as well as the drinking and driving. As long as kids think they are immortal, you are going to have this kind of tragedy. Which is to say forever. After such a dramatic situation I am sure it will be cautionary tale for this seasons group of graduates but not necessarily next years. Imposing tough laws on the rest of society doesn’t seem to get rid of these accidents.
One thing nobody seems to remember is that breathalyzer data was thrown out when it was discovered that law enforcement wasn’t properly or regularly calibrating the devices. Now they use blood tests. How would you like to have had a glass of wine, get stopped, and blow over the limit? Who would have believed you? We have too much faith in machines and not enough in people.
April 26th, 2010 at 8:04 am
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April 26th, 2010 at 8:11 am
Margaret hits on the heart of the matter. Criminal law should not be written to prevent tragedy, but ensure justice. The idea of deterring criminal behavior with laws is redundant; those with the foresight necessary to be deterred are not the problem. The price of a free society is a reactive criminal code, with few expections.
April 26th, 2010 at 8:45 am
One additional thought. We can’t legislate accidents out of existence. My dad has been diabetic for 40 years. He’s had a couple of minor fender benders when his blood sugar got out of control becuause he was working late.
One undeniable reality of life: shit happens.
April 26th, 2010 at 1:13 pm
Why don’t we have the right to travel on public lands. I understand the pioneers didn’t have the right to settle or travel on Indian Reservations, but was it really a privilege to travel on state of federal land? Which then begs the question of “We the People”.
April 26th, 2010 at 7:10 pm
A few points to be made:
1. No law gets rid of ALL accidents. That’s a chimera, and behind it hides a great deal of bad argumentation. The question is whether .08 or .10 or .12 is a big difference in terms of public safety. Decisions are made at the margin.
2. At that margin, it doesn’t appear that many fatalities occur for BAC under .15. But is fatalities the right metric, or is it property damage, serious injury, or …?
3. How long does it take to write a DUI ticket? My understanding is that it’s more than an hour, perhaps 2. So how many other drunk drivers, perhaps over .15, are not caught while the cop writes up the poor schlub with the .09? See Radley Balko for more, http://www.cato.org/pub_display.php?pub_id=5167
4. I would argue with Mitch about the “more than a privilege” point. That is one very slippery slope. Either rights are limited to what’s in the Constitution or we go into the penumbra-making business. Conservatives cannot win that game.
5. What is the recidivism rate for DUI? MADD says it’s quite high. I don’t see a lot of good research on this. If it is high, I think you have to score that point in MADD’s favor, which argues for suspension-while-waiting.
6. Put this together and I would say I could trade a higher BAC limit for the continuation of suspension rules, until we have good data on recidivism.
April 26th, 2010 at 10:52 pm
King, on your last point– It could be that most drunk driving fatalities are caused by alcoholics who drive, with or without a license. In which case suspension does little to keep them off the road. The new law we passed with ignition locks with a built in breathalyzer might, although human ingenuity will probably find a way to defeat it.
April 26th, 2010 at 11:27 pm
One thing nobody seems to remember is that breathalyzer data was thrown out when it was discovered that law enforcement wasn’t properly or regularly calibrating the devices.
That’s not quite true. The company that makes the machines did not want to release their proprietary source code to defense lawyers. The court ruled that until the information was made available, the Intoxilyzer could not be used in DUI cases.
The company then did say the lawyers could see the data, but would have to travel to the company’s HQ, which is in KY. The court ruled that was acceptable, and has re-allowed Intoxilyzer evidence. For now.
There are accusations from defense lawyers that the source code might be faulty. Both the MN DPS and BCA have tested the machines and found them to be accurate. Some departments, including Minneapolis, have continued to do blood or urine tests only, waiting until a court decides on whether the source code is reliable
April 27th, 2010 at 5:35 am
Both the MN DPS and BCA have tested the machines and found them to be accurate.
In related news, Cats have run tests, and determined that Mice are tasty.
April 27th, 2010 at 3:24 pm
Well, defense lawyers have the ability to review and recreate the tests and see if they are accurate or not. That’s how science works. Seems to me having an independent review of the numbers would clear that issue up.
April 28th, 2010 at 2:42 am
[…] your public record. Those are hardly earth-shattering concepts and for those of you supporting the concepts of due-process and innocence until proven guilty are inclined to support. Plus he did this 18 full years after his most recent conviction. At […]