OldSpeak
Driving Under the Inference
By Doug Hornig
September 02, 2005
What’s the most powerful lobbying group in the U.S.?
Liberals might argue that it’s the NRA, while conservatives might nominate the NEA. Many from both sides of the aisle would put forth the oil industry. But for sheer proven effectiveness, it’s impossible to top the Mothers Against Drunk Driving (MADD).
Founded in 1980 by Californian Candy Lightner, whose 13-year-old daughter had been killed by a repeat drunk driving offender, the organization has grown steadily in numbers—it boasts about two million members today—and influence. In fact, it would probably be fair to say that on no political or social issue of the day is there only one side, except here. No politician can afford to be seen as for drunk driving, and thus there isn’t a one who dares cross swords with MADD.
With that kind of clout, the group invariably gets what it wants. Over the years, this has included such victories as tougher penalties for “driving under the influence,” lowering the level of blood alcohol concentration (BAC) at which one is considered drunk, universal use of the breathalyzer to determine a driver’s degree of impairment, and the proliferation of random traffic stops and roadblocks to ensnare those with illegal BACs.
Now, maybe aside from the driver, nobody is fond of the idea of operating a motor vehicle while drunk. But there are quite a number of flies in that particular ointment, beginning with the definition of the term. Any attempt to quantify such a thing is clearly arbitrary. Which hasn’t for a moment stopped public officials from trying.
At the moment, the national definition of “drunk” is having a BAC of 0.08 g/dl. That came about in the mid-‘90s, when MADD persuaded President Clinton and Congress to agree to use the withholding of highway funds as a stick to get states to conform. Though many were still using a 0.10 standard, all eventually capitulated.
But MADD is not about to stop there. It aims to steadily lobby for lower and lower offending BACs (five states already have responded with initiatives, as yet unsuccessful, to go to 0.05), with zero tolerance as its ultimate goal. According to a spokesperson, “The only safe amount when you are mixing drinking and driving is zero—double zero. No alcohol.” Pursuant to that goal, the group supports, for example, federally mandated installation of breathalyzers on new cars. In order to start the vehicle, you’d have to breathe into the tube, whether you’ve been drinking or not. There is actually some support for this in Congress.
A major problem with breathalyzers in general is that they can give false readings for many reasons, including previously deposited contaminants, or if, for example, the testee has just gargled with an alcohol-based mouthwash. Unfortunately, at present there is no appeal. Refuse to take the test and you’re presumed to have flunked it. Ask the officer to wait twenty minutes, which is the guideline according to his rule book, and maybe you’ll get it. But most likely not.
Even if the breathalyzer is working perfectly, the reading may still be erroneous. This is because these devices don’t actually measure your BAC, but rather your breath alcohol concentration, which should more properly be called BrAC. BrACs are used because of the time and effort required to take actual blood samples, a procedure the police are neither equipped nor trained to carry out in any case. In order to transform BrAC into BAC, the number must be multiplied by some constant. Trouble is, there’s no medical agreement on what that multiplier should be. Thus in one study, BrACs and BACs taken at the same time diverged significantly in one instance out of every three.
And is being perfectly legal good enough? Not always. Wrote columnist John Doyle in the Providence Journal: “One Florida man recently ended up in jail with a BAC of 0.02… about one drink. The grandson of a former Supreme Court Justice... was arrested in Washington with a BAC of 0.03. And [earlier in 2005], a Florida man who admitted he drank a few beers hours before spent a night in jail though his BAC was a flat 0.00. These are more than just isolated incidents. They are harbingers of a growing trend.”
Then there’s this: There is no evidence that lowering tolerable BACs past a certain point makes any difference. While the vast majority of alcohol-related fatal crashes involve a driver with a BAC of 0.15 or more (the average being 0.19), only 6% involve drivers with less than 0.10 (and that’s with no other factors taken into account). An AMA study found that 86% of drivers in the 0.05-0.10 range are not physically impaired at all. In other words, as we might expect, light drinkers can drive reasonably well; dead drunks often end up plain dead. So why equate the two?
Well, many now believe that MADD has morphed from an anti-drunk driving organization into one that is simply anti-alcohol, period. Its founder, Candy Lightner, has left the group and has testified to state legislatures about the futility of lowering legal BAC levels. Since most fatalities involve drinkers with high BACs, she argues that “lowering the blood alcohol content won’t make a difference to these offenders.”
“If,” she adds, “we really want to save lives, let’s go after the most dangerous drivers on the road. Putting our trust in new laws and regulations that only address the tip of the iceberg will not make our highways safer.”
Dr. H. Laurence Ross, author of the book, Confronting Drunk Driving, goes even further. He estimates that lowering the legal BAC level from 0.10 to 0.08 means a potential increase of 60% in DUI arrests, with no discernible decrease in fatalities. In addition, adoption of the new standard “has not to date been accompanied by any comparable new investments in police resources, thus diluting an already inadequate control system. The effect may well be to reduce the chances of any impaired drivers being arrested.”
John Doyle puts it this way: “Our collective failure to adequately deal with alcohol abusers who drive drunk should not be used as an excuse to punish moderate consumption of adult beverages. Responsible adults who share a bottle of wine with their dinner deserve privacy, not persecution.”
Perhaps worst of all is the mockery DUI laws make of our most cherished right, the presumption of innocence. You are presumed guilty if you either fail or refuse to take a breathalyzer test, no matter how much alcohol is in your blood. You are also presumed to be about to commit a vehicular crime, no matter your level of impairment—from very to slightly to not at all—and you can be arrested to “prevent” that.
Using the same logic, we may ask if gun owners should be routinely jailed because they may, some day, kill an innocent person. Or should swimming pool owners be liable for negligence before someone drowns? Of course not. The questions are absurd. Yet the courts have consistently upheld the right of law enforcement to make just those kinds of judgments in DUI cases.
Until now.
In early August, Ian O’Flaherty, a Fairfax, Virginia district court judge dismissed two drunk driving convictions on constitutional grounds. Citing Francis v. Franklin, a 1985 U.S. Supreme Court ruling that held that a prosecutor is obliged to prove all elements of a crime beyond a reasonable doubt, O’Flaherty argued that Virginia’s law is unconstitutional because it presumes that an individual with a BAC of 0.08 or higher is intoxicated, denying a defendant’s right to a presumption of innocence.
Because he’s a district judge, O’Flaherty’s ruling does not establish a precedent. But lawyers in Virginia and elsewhere have taken note. State prosecutors have withdrawn DUI cases assigned to O’Flaherty, whose judgments cannot be appealed, and headed directly for Circuit Court, where a similar ruling could be taken higher. By the same token, defense attorneys around the nation are scurrying to prepare arguments that take the O’Flaherty ruling into account. There’s little doubt that this one is headed eventually for the big court on Capitol Hill.
No reasonable person condones drunk driving, but the laws that govern it seem long overdue for a closer look. Minnesota Judge Dennis Challeen, a 30-year veteran of the bench, expressed it well when he made the point that individual liberty is best balanced against public safety by finding better ways to target only the drivers who are actually inebriated. Otherwise, he says, increasingly restrictive laws will end up "simply catching more of the wrong people, the people who are not the problem."
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