i believe in most states, a refusal to test is the same as a guilty plea... no trial involved
Posted on 12/16/2005 5:33:56 PM PST by RWR8189
No one wants to see a family of four killed by a drunk driver. But the United States has veered way out of the lines in its DUI laws, and it’s time to rethink them from bumper to bumper.
Whether you’re a 220 lb. guzzler with an iron liver or a 120 anorexic who’s just had her first drink, you will be evaluated by the same standard in determining whether you’re capable of driving. The standard in most states is a .08 blood-alcohol content or BAC. But other states have policies in which an even lower BAC can send you to jail. Recently, for example, the Washington D.C. city council voted in favor of raising its legal BAC from .01 to .05 -- where between .05 and .079 police may use their discretion about whether to make an arrest.
This will be a marginal improvement over rules yielding incidents like the one involving Debra Bolton who was arrested for a BAC of just .03 (that is, a single glass of wine). Allegedly Mrs. Bolton had forgotten to turn on her headlights, and the police pulled her over. But it is not clear that failing to burn one’s lights is probable cause for suspecting impairment. (Most of us forget from time to time. It doesn’t mean we’re drunk.) But in Debra Bolton’s case, it was only a quick (and questionable) step from a very charitable interpretation of probable cause, to the evocation of the “police discretion” standard, in which officers may arrest based on their subjective belief that the driver is impaired. After all, when they administered the Intoxilyzer 5000, they came up with a .03 reading -- well below the legal limit.
Despite the laudable .04 percent change in the standard for acceptable BAC in Washington (before “police discretion” can be evoked), the city is still left with a rather draconian DUI law. The Cato Institute’s Radley Balko puts all this another way:
But when two-thirds of alcohol-related traffic fatalities involve blood-alcohol levels of .14 and above, and the average fatal accident occurs at .17, this move [changing the legal limit from .1 to .08] doesn't make much sense. It's like lowering the speed limit from 65 to 60 to catch people who drive 100 miles per hour. In fact, the U.S. Government Accountability Office reviewed all the statistical data and concluded "the evidence does not conclusively establish that .08 BAC laws by themselves result in reductions in the number and severity of crashes involving alcohol." (Emphasis added.)
The prima facie argument for a single BAC standard is that there is no other fair standard available for police to make a determination. BAC was introduced because many thought that police discretion and sobriety tests were too subjective on their own, and people were thus vulnerable to abuse by cops looking to fill a quota. BAC was to be an objective standard upon which the law would rest -- with subjective sobriety tests becoming a supplement.
It turns out that while the BAC standard is an objective standard for measuring the percentage of alcohol in the blood. It isn’t an objective standard of someone’s ability to drive safely. The very term DUI stands for “driving under the influence.” But the breathalyzer and other BAC measures can’t determine the influence of alcohol on one’s reaction times, faculties, and motor skills. If we were trying to determine whether someone is actually impaired, aren’t reaction times, faculties and motor skills what we ought to be looking at?
To be fair, there was a time in which the BAC standard made sense. In the absence of a better standard, a proxy standard would have had to suffice -- just as age 65 might be a reasonable proxy standard for testing elderly drivers for the degenerative effects of aging.
So the question comes down to this: Are there other (non-cost prohibitive) standards available for testing drivers? One’s that actually test for impairment?
You bet -- and they’re inexpensive.
My tentative suggestion would be a portable driving simulator. If we train fighter-pilots and astronauts on sims, why not test drivers with them? In fact, there are all sorts of computer programs sitting on servers at different universities around the country, not to mention in for-profit companies. There are programs for everything from learning to drive an eighteen wheeler, to -- eureka -- testing people’s driving abilities under the influence.
Even if we thought the driving simulators extant were somehow insufficient for the task of determining whether or not someone is impaired, we know the technology exists and that a prototype for cops could be worked up in a matter of months. Don’t believe me? This following list of games should give us an idea of what’s out there:
I admit that a formalized simulation might have to be studied extensively. But the technology is there: 3-D virtual reality glasses, algorithms that recreate physical forces, graphics, sound -- and everything else cool and realistic that you might find in your kids’ X-Box 360.
While such new technologies may have to be reworked and tested for use as a legal standard, it’s certainly a significantly better objective standard for determining whether a person is capable of driving than breathalyzers. And while there may be a minor inferential step from someone’s score on the simulation to the presence of alcohol in her body, such a step is far, far narrower than the giant leap between BAC and impairment.
In the interests of justice, have our lawmakers even looked into these options?
Max Borders is Managing Editor for TCS Daily. He is also founder of the Wingbeat Project.
This is all about power and politicians who want to tell people what to do. And in that regard it's no different than any other "Hot Button" issue that you see here on Free Republic.
It's still far easier to refuse the BAT and take your chances in court...with a good lawyer.
The MADD ninnymorons are long overdue for a serious blowback.
That would be a much more objective standard. However, it's a pretty costly one, and one that can't possibly become law until every police department within the state has at least one simulator in place.
But it seems almost everyone wants to see hundreds of thousands arrested, jailed, and financially raped because they have a one-in-ten-million CHANCE they MIGHT have an accident.
That's because it is always about the money. How much revenue is generated in increased number of fines, etc by decreasing the BAC laws?
Let them have your license for 6 mos if you think the alternatibe is a DUI.
Mark
i believe in most states, a refusal to test is the same as a guilty plea... no trial involved
And that is itself a travesty;it shows how little the Bill of Rights means to today's petty tyrants.
I would further provide that if someone is cited for DUI, they would be allowed to go to the testing center, consume a measured amount of alcohol, wait about 30 minutes, and then attempt the simulator at the BAC level they had while driving. If they pass, their punishment would be reduced to a small civil fine (to compensate for the police time made necessary by their failure to take the test earlier).
MADD et al. would hate this notion, but IMHO it would probably save lives. One of the problems with drunk driving is that many people think they are less impaired than they really are. Although this approach would allow some people to drive at 0.12BAC without fear of arrest, I think many more people would discover that they weren't as capable as they thought and would thus moderate their alcohol consumption appropriately.
A couple States (e.g. Minnesota and Nevada) have done economic impact studies, and found that reducing BAC reduces net revenues. First, the compliance costs of enforcement alone exceed any revenue gained. Second, it reduces alcohol excise taxes which are a significant source of revenue in many States.
This was discovered when the Federal government tied highway money to compliance with the 21 drinking age and .08 BAC limits. It turns out that the net revenue lost exceeds the highway funds at risk in most States. The Feds get compliance by appealing to the baser nature of politicians: money that is not paid out due to non-compliance is kept in an account by the Feds, which gets bigger and bigger every year. States that cave and create the required laws get all the back money they never got for non-compliance all those years plus a bonus percentage on top of that lump sum for coming back on the reservation.
Very few politicians can resist that jackpot of free un-earmarked money once it grows big enough, and that "free money" can quickly accumulate to being a non-trivial fraction of a State's annual revenue. Taking it in the ass for a massive cash windfall would make anyone else a whore, but the highway funds have shown that every politician has their price and not even a particularly high one at that.
One of my classmates in law school was arres...uh...kidnapped right after she pulled into her driveway - no harm done. When she read me the list of fines, fees, suspensions, classes, etc. she was put through, I could not believe my ears. And that was 7 years ago. I can only imagine how far they shove the cattle prod now. Of course it's about the money - she hadn't done anything to anyone. Money, and power.
i believe in most states, a refusal to test is the same as a guilty plea... no trial involved
Yeah - they call it "administrative suspensions" and pull your "license." For you see, a license suspension is not a criminal punishment - as, say, driving after you've had it pulled. Money and power.
Sorry - I meant if you get "caught" driving after having it pulled.
I know they tried to withold money from WV because we resisted lowering the level. I am pretty sure the argument was that it would cost us more money is housing people in the jails, etc than what the money amounted to that was being withheld. Of course, WV caved. I am not up on all the details, but our level was lowered to .08 this year.
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