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Driving Under the Influence laws and issues
Medopine
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Discuss here, carryover from the faith healing thread.
I'll stick some quotes in here in a sec.
Additional issues:
Are DUII laws in the US too harsh, or not harsh enough?
What individual rights issues are raised by making DUII a crime?
What actually happens in DUII trials?
I'll stick some quotes in here in a sec.
I actually prefer that standard. The old way, a cop could just say you were drunk, smelled of beer, slurred, etc and you'd didn't have much to argue against it. A lot of places have the camera on the cruiser now but that won't necessarily be enough to protect you. A defense of "Honest, I was fine to drive" wouldn't carry much weight.ViolentChemistry wrote: »
Yes, in most (or maybe just many) states driving while you test over the legal limit is a per se offense. The state no longer has to prove intoxication at all, simply having that BAC while driving is itself illegal.
EDIT: Relevant subsection of the code up here...Montana Code wrote:61-8-406 Operation of noncommercial vehicle by person with alcohol concentration of 0.08 or
more -- operation of commercial vehicle by person with alcohol concentration of 0.04 or more.
(1) It is unlawful and punishable as provided in 61-8-442, 61-8-722, 61-8-723, and 61-8-731
through 61-8-734 for any person to drive or be in actual physical control of:
(a) a noncommercial vehicle upon the ways of this state open to the public while the person's
alcohol concentration, as shown by analysis of the person's blood, breath, or urine, is 0.08 or
more; or
(b) a commercial motor vehicle upon the ways of this state open to the public while the person's
alcohol concentration, as shown by analysis of the person's blood or breath, is 0.04 or more.
(2) Absolute liability, as provided in 45-2-104, will be imposed for a violation of this section.
It's actually an entirely separate law from the "driving under the influence" law (which I also looked up, and you're correct that a BAC of .08 merely presents a rebuttable presumption of innocence on that one). It's likely the same in your state.
With a breathalyzer, If you're under the limit, you have scientific, documented proof and the offense is much less subjective. There's a definite standard that can pretty easily be assessed as to what "drunk" means (not so much hammered and can't stand as more than slightly buzzed) that can not only be estimated by how many drinks you've had in the amount of time but tested (I know bars that have breathalyzers as half jokes half liability protection).nexuscrawler wrote: »and refusing the breatalizer is assumed guilt in most places
In MA, its not guilt of DUI but it is a sufficient offense to get your license suspended.
But if we're going to continue either a DUI standard or the benefits of having actual empirical standards in law (or detriments of the "arbitrary") it should probably be split off before the Mod Hammer drops.
I actually prefer that standard. The old way, a cop could just say you were drunk, smelled of beer, slurred, etc and you'd didn't have much to argue against it. A lot of places have the camera on the cruiser now but that won't necessarily be enough to protect you. A defense of "Honest, I was fine to drive" wouldn't carry much weight.ViolentChemistry wrote: »
Yes, in most (or maybe just many) states driving while you test over the legal limit is a per se offense. The state no longer has to prove intoxication at all, simply having that BAC while driving is itself illegal.
EDIT: Relevant subsection of the code up here...Montana Code wrote:61-8-406 Operation of noncommercial vehicle by person with alcohol concentration of 0.08 or
more -- operation of commercial vehicle by person with alcohol concentration of 0.04 or more.
(1) It is unlawful and punishable as provided in 61-8-442, 61-8-722, 61-8-723, and 61-8-731
through 61-8-734 for any person to drive or be in actual physical control of:
(a) a noncommercial vehicle upon the ways of this state open to the public while the person's
alcohol concentration, as shown by analysis of the person's blood, breath, or urine, is 0.08 or
more; or
(b) a commercial motor vehicle upon the ways of this state open to the public while the person's
alcohol concentration, as shown by analysis of the person's blood or breath, is 0.04 or more.
(2) Absolute liability, as provided in 45-2-104, will be imposed for a violation of this section.
It's actually an entirely separate law from the "driving under the influence" law (which I also looked up, and you're correct that a BAC of .08 merely presents a rebuttable presumption of innocence on that one). It's likely the same in your state.
With a breathalyzer, If you're under the limit, you have scientific, documented proof and the offense is much less subjective. There's a definite standard that can pretty easily be assessed as to what "drunk" means (not so much hammered and can't stand as more than slightly buzzed) that can not only be estimated by how many drinks you've had in the amount of time but tested (I know bars that have breathalyzers as half jokes half liability protection).
There's no reason you can't do both, though. You can require a BAC test as a standard of evidence for a conviction (rather than relying solely on the officer's testimony) without making an arbitrary BAC level a per se offense on its own. That's what the actual DUI law in Montana does (I did not quote this law). It states that (IIRC) you have the right to request a BAC test, and the results of that test will largely (but not entirely) determine the outcome in court.
If you test below .04 (all the way to .00) you can still be charged based on a field sobriety test! But legally this is considered evidence that you were not under the influence, so the odds of a conviction are remote (charges would probably never be filed). Between .04 and .08, you are not presumed guilty based on that alone, but it is considered along with the field sobriety test or other factors to determine guilt. At .08, you are presumed guilty, and the burden is on you to prove otherwise (but this is still theoretically possible!).
Note, again, that this is entirely separate from the law I quoted, which you are pretty much undeniably guilty of at .08. There is no defense against that, other than shit like police misconduct or whatever. Once the prosecution can show that A) that was you andyou tested at that number and C) your rights were not violated, you are guilty. Period.
So at this point the state gets to have it both ways. Because you can still be convicted after as little as one drink (depending on the person, this can put you at .04) on the word of a police officer.But if we're going to continue either a DUI standard or the benefits of having actual empirical standards in law (or detriments of the "arbitrary") it should probably be split off before the Mod Hammer drops.
I would have taken this and started a new thread, but I figured I'd put it here so it can be included in the inevitable split (along with the rest of the lead-up posts). Sorry if this creates significantly larger hassle for the mod doing so....I'm assuming it doesn't, let me know and I won't do it in the future.
Additional issues:
Are DUII laws in the US too harsh, or not harsh enough?
What individual rights issues are raised by making DUII a crime?
What actually happens in DUII trials?
Medopine on
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edit: I should go into more detail, here: Drinking affects your ability to safely drive in subtle ways even for low levels of alcohol and long before you're visibly, stumbling-and-slurring drunk. Saying, "hey, it was only $SMALL_NUMBER of drinks and I'm totally good to drive" is not an excuse and should not be. I would be perfectly fine with a law that said that if you blow more than .02 (and assuming no police misconduct) you're guilty of DUI, full stop.
None, from where I stand. You can drive drunk all you like if you aren't leaving your property, but once you go out onto public roads you have to abide by public regulations. The danger presented by drunk drivers seems like a pretty uncontroversial state interest in restricting drunk driving.
As relating to the above discussion: I was under the impression that although a .08 BAC would generally get you a DUI, that the sentencing and all still varied based on what you blew and your behavior. For instance, friend of a friend was pulled over and blew just over .08, but he was well behaved and by the time he got to the station he blew under .08. He didn't wind up getting jail time or having a criminal record, iirc. So it doesn't seem to me like the .08 number makes the law too inflexible.
In North Carolina, the law is such that if you are caught behind the wheel, car in motion or not, you are charged with a DWI. In my town, the cops love to cruise the bar area and arrest drunks passed out in their cars.
The result of this genius level combination of tough on crime legislation and zero-tolerance police work is that a person who gets behind the wheel and realizes they are too drunk to drive is actually taking less of a risk by just driving home than they are in pulling over and sleeping it off.
We focus our attention very closely to certain problem behaviors: driving drunk, driving with a cell phone, driving over the speed limit. In the meantime, we manage to miss a lot of other problem behaviors simply because there's no objective verification for them (driving while sleep-deprived, for instance) or because they're more socially acceptable (driving with multiple screaming kids in the back seat, driving with an in-dash DVD player on for said kids) or because they'd be nearly impossible to catch or enforce (making a lane change without signaling in traffic).
The basic issue is not whether or not .08 is legally intoxicated. That differs from person to person. In general, I agree it's a good limit and I'm not looking to change that. The basic issue is that some people are simply irresponsible drivers, or drivers lacking basic vehicle control skills, reaction time, or situational awareness to drive. Such drivers might be functionally unable to drive at .03 BAC (being that they are, essentially, already impaired) while another driver might be reasonably safe at .07 BAC. And such drivers can end up with multiple minor accidents and multiple citations long before they end up in a serious accident.
Unfortunately, if you start to talk about taking people's licenses away, you start to run into the basic problem that due to the lack of public transportation and poor city planning, a car is a basic life requirement for many people.
I understand that in other countries, driving drunk is never socially acceptable, while in the US there are a lot of people who think that edging in at .079~ BAC means they're safe. I see this as a symptom of the car culture, where the law purportedly treats a car as a privilege rather than a right, but in reality it's treated closer to a right than a privilege.
the "no true scotch man" fallacy.
In other words, if you're asking me to take an unreliable test that might result in my driver's license being unfairly suspended or a criminal conviction, I should be able to refuse that test and demand a blood test instead without fear of losing my license or being convicted if that blood test shows that I was significantly below the legal limit enough that any discrepancy couldn't be attributed simply to the time it took to ride down to the station.
the "no true scotch man" fallacy.
Other things that impair human judgment and reaction times:
being old
being tired
being angry
being stressed
Would you approve of a law making driving under any of those conditions a felony too?
First DUI you should lose your license for minimum one year, be subject to a healthy fine, and some jail time. None of this AA crap.
Since VC's list was not remotely exhaustive, I'm going to dogpile and add a few of my own:
Driving with kids in the car
Driving with a GPS system on
Driving while on cold medicine (technically a DUI in California, but I don't know if it's ever enforced)
Driving a car that hasn't been properly maintained
the "no true scotch man" fallacy.
You aren't? Because everyone I know who has gotten one was.
Since antihistamines all carry drowsiness as a side-effect and driving while constantly blowing your nose is about as safe as any of the above, people with allergies just shouldn't be given licenses.
A first-time DUI is only a felony if you cause an accident or harm another person. If your driving is impaired enough that you do that, then I don't have a big problem with it.
Same in Ohio, except the keys have to be in the car. The general trick that has gotten a few of my friends off that needed those safety naps was to throw their keys somewhere underneath their vehicle.
An older ohio trick was that there was a clause that you were allowed to have a lawyer present to witness your B.A.C. test. I think the implications of this loophole are pretty clear but people would just request to have their lawyer present. So the police had no choice but to take the person into holding until the lawyer arrived and by that time the test was pretty much worthless.
On topic; I think drunk driving is incredibly stupid and while perhaps it should not be a felony the penalties are nearly accurate.
That's so weird. Not the first time I've heard it, but it's weird.
I've always wondered about that: What if you were asleep in the passenger seat? Or the back seat? Would they still call it a DUI/DWI?
the "no true scotch man" fallacy.
That always struck me as brilliant. Yes guys, let's punish the people who are responsible enough to sleep it off before trying to drive. That's the best plan. That's exactly what the law is for.
If you had the keys on you? Yes.
So lemme just have an asperger's moment here... I decided that I was too impaired (tired) to drive, does that mean that I was too tired to take a nap?
VC: I suspected the answer would be yes. That's retarded.
the "no true scotch man" fallacy.
In OR you either charge it is driving under the influence of alcohol or controlled substances, or both.
The crux is that when you were driving, your physical and mental faculties were impaired to a perceptible and noticeable degree. The .08 is presumptive of this but can (theoretically) be disproved. Controlled substances includes illegal drugs, drugs you don't have a prescription for, and even things like a prescription drug that you have a prescription for but that impaired you to the legal standard.
Obviously this varies from state to state.
Not really understanding your question, but DUII is under the influence of alcohol or drugs. So I have no idea how you could possibly be prosecuted for being tired and responsibly taking a nap.
It is. And bringing it up I guess I lied earlier, because one night I was way too drunk to drive so I got in my Cherokee and took a nap on the bench seat for a couple hours before driving home. I discovered later that Ohio considers that a DWI (because my buddy got a DWI for exactly that). So I guess I have "driven" drunk. I forgot.
I really don't think it's appropriate to have a law that does not include the element of "driving on a public roadway" as part of the crime of DUII. If you are sitting in your car drunk, but not going anywhere, you haven't become dangerous to other drivers (or yourself) yet.
State troopers I know around here do stake out the bars. They watch as people leave and if they see traffic violations, they pull the person over. If they notice signs of intoxication, they then go into a DUII investigation.
Ignore the analogy to being tired. This isn't a question about the letter of the law, but the spirit of it.
We don't want people to drive while impaired. Hence, we have DUI laws.
The responsible thing to do, if impaired, would be to wait until one is not impaired.
In many cases, particularly in the middle of the night (when people are most likely to be drunk), the only legal and/or safe place to sleep would be in one's car.
Why would we punish people for doing that?
Edit: never mind, you just addressed that.
the "no true scotch man" fallacy.
Our posts are getting crossed.
the "no true scotch man" fallacy.
I'm not sure if .08 BAC is the right number or if it needs to be on more of a sliding scale based on observation of impairment, but I don't think it's something that should be let go just because it's difficult to enforce/measure. Hell, I know some people that couldn't pass a field sobriety test even if they were stone cold sober because they just are awkward people.
Focus on .08 BAC also ignores other possible driving imparements, including legal and illegal drugs, sleep deprivement, and all the possible distractions that you encounter every day, from ringing phones, to women with big hooters and short skirts, to sneezing.
The inflexabiity depends on the jurisdiction. Some places, they take a "zero tolerance" stance on it, and will prosecute anything over the limit as far as they can. In Texas, they're allowing the DPS to take blood as soon as possible just so that they get a good read and so you can't "sober up" on the way to the drunk tank.
In my state, yes. If both you and your keys are anywhere within the vehicle, you are considered to be "in control of" the vehicle and are eligible for a DUI.
I agree that the punishments should be harsher, I just don't agree with some ways in which the law is enforced. I'm not a fan of implied consent, I don't like the "either-or" system regarding intoxication (the combination of a per se law and officer discretion), and in general I think there are a lot of issues with presumed guilt going on in the DUI realm.
I'm working on a take-home final, or I might go into more detail.
Basically I think that if convicted people should have the book thrown at them (as far as I'm concerned, it's attempted vehicular homicide or similar) but I think we've made it far too easy to round people up. Add to that the issue Feral is talking about, in that we treat breathalyzer tests as if they're CSI-level evidence, and scientifically they're fairly spotty (blood is far more accurate)...yet in my state at least you have no right to a blood test, and assuming they even let you get one within a reasonable amount of time you're forced to pay for it.
So scientifically shaky evidence can be used for conviction of a per se crime, and though better methods are available, and we force people to pay for the collection of the evidence we should be using in the first place.
Also most of the DUII trials I see in this office involve someone who refused to blow. I had one trial where the guy refused to do field sobriety tests and refused to blow. He was convicted. That's what trials are for
And I don't agree .08 should be a per se crime. I believe it should set a presumption of intoxication or impairment. This means it can be disproved by evidence. Also every jury here is instructed that they can judge the weight and worth of BAC on their own, and aren't required to convict just because it's a certain number.
Cops here can bust you for sleeping in the car, whether you are seen driving or not. People know this and, when faced with the choice, usually decide just to drive home. This is compounded in my town by the fact that police actively and enthusiastically enforce this particular law in the areas around the downtown district where people go to drink.
As for the article in question, it's worth noting that the guy was parked about a five minutes casual walk from the bar where he was drinking. So, he had just about enough time to get in the car, drive the length of half a dozen houses and decide he needed to pull over and sleep it off. Making that decision making process illegal creates a bit of a perverse incentive.
N.C.'s various zero tolerance policies creates a lot of these perverse incentives. About a decade ago, the state decided the best way to punish habitual offenders was to seize their vehicles and give them to the schools, which would then sell them for cash.
It didn't take long for the schools to realize that the cars they were getting were generally unsellable crap. Now, a lot of school districts are having to pay for land and faciliities to store hundreds, thousands in the larger districts, of junk cars that no one wants.
Yeah, not really the right way to get tough on this particular crime.
I know it differs from state to state and might even differ from county to county. I don't know.
I do know that in some places (though I can't remember exactly where off of the top of my head) a breathalyzer alone is technically enough to suspend or convict. Now, if that never actually happens, because as Medopine says above judges or prosecutors are also looking for other evidence of impairment (an accident, intoxicated behavior, etc), then it's not an issue.
Like I said, it's fine for probable cause. If you blow .08, the most reasonable explanation for that is that you've had too much to drink. However, the other possible explanations, though less possible, are still possible enough that I don't think that refusal to blow alone should be enough to justify suspension of my license - as long as the possibility exists that a breathalyzer test can be used to convict me in absense of other evidence. Perhaps refusal to blow plus a moving violation, or refusal to blow plus a field sobriety test and clear confirmation of impairment (slurred speech, etc), and so on. Just not refusal to blow alone.
the "no true scotch man" fallacy.
The DMV automatically suspends a license here for refusing a breath test and for failing one. The suspension is longer if you refuse than if you fail. Note that's the DMV, not the courts, doing an automatic suspension. I'm not sure how you go about disputing that result. I do know you can apply for a hardship permit in some situations.
Yeah. In general, that's the case from what I've seen in California, too. (I've spent a little bit of time sitting in drug treatment courts and in Santa Clara's specialized mental health court, partly from when I was a psych student doing field study and partly from family members who ran afoul of the law. We saw quite a few people failing their drug diversion or court-mandated mental health outpatient treatment programs by driving under the influence.)
the "no true scotch man" fallacy.
This is my issue. Upon making a BAC of above .08 a per se criminal offense (and I know mine is not the only state that does this) the whole implied consent for a breathalyser skirts way too close to self incrimination for my comfort.
And I also reject the argument that suspension of license (for refusal to blow) isn't equivalent to a criminal punishment here as well, though I know the law specifies otherwise. Same with things like sex offender registration or suspension of gun rights under Lautenberg.
EDIT: Basically I am fine with prosecuting DUIs, and I think the penalties need to be severe, but I think the process is weighted too heavily against the accused in this instance.
People sufficiently old to impair their driving to an extent analogous with intoxication should lose their licenses. In cases of tired driving I do not support criminalization because enforcement would be a nightmare and there are many legitimate reasons why someone would need to drive while exhausted (new parents taking their baby to the hospital). If you get so angry or stressed at times that it impairs your driving to the same extent that .08 BAC does, then you need serious therapy. The social cost of banning driving with kids would far outweigh the benefits. Driving with a GPS on is not in fact a serious distraction; driving while operating one manually is, and should be illegal. Driving in a car that is not properly maintained should certainly be illegal, which is why many states have annual inspection laws and why all states should.
Oh, and if VC was way too drunk to drive before getting in the car, he was probably too drunk to drive two hours later whether he felt like it or not. This kind of behavior is exactly why most state laws require you to get rid of the keys. Really though you just should never drive to a bar if you plan to drink. Problem solved.
There is no "implied" here; you gave express written consent when you signed the forms to get a driver's license.
edit: Also, I'd like to point out that not every state has retarded "parking while intoxicated" laws, and the existence of such laws does not mean that actual driving while intoxicated laws are somehow illegitimate.
True, but I think they're symptomatic of a zero-tolerance attitude that is ultimately counterproductive.
the "no true scotch man" fallacy.
True.
But then you get into right-to-travel issues, in areas where there is literally no other way to do so. The idea that you have to sign away rights in order to be able to legally travel from A to B effectively seems a bit draconian to me.
Especially when the alternative is simply requiring some form of probable cause for gathering such evidence. Is there some reason the police need a standard of probable cause of "was driving" to test for BAC?
EDIT: Also, I realize that the right to travel doesn't necessarily cover this level of travel (and obviously legally it doesn't seem to) but I think that the more draconian the laws we create regarding driving, while failing to replace it with any viable alternative, the more unacceptably restrictive our society gets in this regard.
There are laws in many states that use the phrases:
Reckless driving, aggressive driving, careless driving, improper driving, or driving without due care and attention. Also ever heard of a ticket for a broken tail light? There are already several laws for driving a vehicle that is not is not in proper working order.
Most of these carry lesser punishment than a DUI. This is mainly due to the fact that DUI drivers have caused a larger number of serious and fatal accidents than accidents caused by people in the previous set of infractions.
While the situations you listed do cause diminished reaction time and judgment none of them are as consistent or severe as DUI has proven to be.
I think to say that these situational distractions are equivalent to a persistent state of being drunk is disingenuous.