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The Non-Crime of Drunk Driving

      The name of the offense varies from jurisdiction to jurisdiction and from legal to colloquial terminology. In the United States, the specific criminal offense is usually called “driving under the influence” (DUI), but in some states “driving while intoxicated” (DWI), “operating while impaired” (OWI) or “operating while ability impaired”, “operating a vehicle under the influence” (OVI), etc. Such laws may also apply to boating or piloting aircraft. Vehicles can include farm machinery and horse-drawn carriages. Other commonly used terms to describe these offenses include drinking and driving, drunk driving, drunken driving, impaired driving, operating under the influence, or “over the prescribed limit”.

Merriam Webster’s Dictionary defines DUI as the “crime of driving a vehicle while drunk; also : a person who is arrested for driving a vehicle while drunk; the act or crime of driving while affected by alcohol or drugs; a person who is arrested for or convicted of driving under the influence or an arrest or conviction for driving under the influence. In some countries (including Australia and many jurisdictions throughout the United States), a person can be charged with a criminal offense for riding a bike, skateboard, or horse while intoxicated or under the influence of alcohol.

The state criminal statutes concerning drunk driving are unjust, and are so vague and broad that certainty of compliance with the law is impossible. The law punishes anyone who mixes drinking, no matter how temperate, when they operate a vehicle. Anybody who drinks and then crashes into someone or something and causes any property damage is certainly guilty of a crime and should suffer the penalty.  BUT — That is only 5% of the DUI cases that are dragged into court.  The other 95% of the cases are people who had one or two drinks and their driving hurt no one and they caused no property damage – no crime was committed. Why should they pay any penalty?

First, the law is enforced by highly specialized and sophisticated police forces from multiple agencies & departments, state, county, and city. These police zealously enforce two separate DUI statutes, and vehicle code bans on driving with a blood alcohol content of .08% or greater. Clearly this limit is too low.

But the real injustice of the law is not the low threshold, but the fact that the mere act of driving with excessive blood alcohol is a crime at all. The purpose of the law is to forbid drivers from creating an unacceptably high risk of a traffic accident. This flies in the face of all reason & centuries of legal tradition. As every first year law student knows, liability for negligence requires an unreasonable risk and damages. Yet California criminalizes the mere creation of a risk and we wonder whether a .08 BAC level driver actually poses a real risk without any damages or consequences at all.

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Field sobriety testing

A police officer in the United States must have Probable Cause to make an arrest for driving under the influence. In establishing probable cause for a DUI arrest officers frequently consider the suspect’s performance of Standardized Field Sobriety Tests. The National Highway Traffic Safety Administration (NHTSA) developed a system for validating field sobriety tests that led to the creation of the Standardized Field Sobriety Test (SFST) battery of tests. The National Highway Traffic Safety Administration (NHTSA) established a standard battery of three roadside tests that are recommended to be administered in a standardized manner in making this arrest decision. There are Non-Standardized Field Sobriety Tests as well; however the Non-Standardized Field Sobriety Tests have not received NHTSA Validation. This is the difference between the “Standardized” and the “Non-Standardized” Field Sobriety Tests. The NHTSA has published numerous training manuals associated with SFSTs. As a result of the NHTSA studies, the Walk-and-Turn test was determined to be 68% accurate in predicting whether a test subject is at or above 0.08%, and the One-Leg Stand Test was determined to be 65% accurate in predicting whether a test subject is at or above 0.08% when the tests are properly administered to people within the study parameters.

The three validated tests by NHTSA are:

The Horizontal Gaze Nystagmus Test, which involves following an object with the eyes (such as a pen or other stimulus) to determine characteristic eye movement reaction to the stimulus.

The Walk-and-Turn Test, (heel-to-toe in a straight line). This test is designed to measure a person’s ability to follow directions and remember a series of steps while dividing attention between physical and mental tasks.

The One-Leg-Stand Test, stand on one leg for 30 seconds without touching the other foot to the ground or falling on your face.

Alternative tests, not validated by the NHTSA, are:

The Romberg Test, or the Modified-Position-of-Attention Test, feet together, head back, eyes closed for thirty seconds.

The Finger-to-Nose Test tip head back, eyes closed, touch the tip of nose with tip of index finger.

The Alphabet Test, recite all or part of the alphabet.

The Finger Count Test touch each finger of hand to thumb counting with each touch (1, 2, 3, 4, 4, 3, 2, 1).

The Counting Test, counting backwards from a number ending in a digit other than 5 or 0 and stopping at a number ending in a digit other than 5 or 0. The series of numbers should be more than 15.

The Preliminary Alcohol Screening Test, PAS Test or PBT, breathe into a “portable or preliminary breath tester”, PAS Test or PBT.

Remember, that you are testifying against yourself if you do these tests.  In the U.S.,  field sobriety tests are voluntary;  however, some states mandate commercial drivers accept preliminary breath tests (PBT). The Preliminary Breath Test (PBT) or the Preliminary Alcohol Screening test (PAS) is sometimes categorized as part of field sobriety testing, although it is not part of the series of performance tests. The PBT (or PAS) uses a portable breath tester. While the tester provides numerical blood alcohol content (BAC) readings, its primary use is for screening and establishing probable cause for arrest, and to invoke the implied consent requirements. In US law, this is necessary to sustain a conviction based on evidential testing (or  the implied consent refusal). Regardless of the terminology, in order to sustain a conviction based on evidential tests, probable cause must be shown (or the suspect must volunteer to take the evidential test without implied consent requirements being invoked).

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Drunk driving defendants are dragged into court, who had not caused any accident, injury, or property damage, and were facing devastating criminal penalties merely for driving with an unlawful blood alcohol content (BAC).

In fact, many defendants had already arrived at their destination without incident, and were arrested subsequently during unrelated police investigations, when the police noticed symptoms of alcohol consumption, and evidence showed that the defendant had driven there. The fact that there was no crash made no difference.

Again, it is not that .08% is too low, it is. But California would still unjustly penalize drivers who caused no harm to anybody whatsoever even if the limit were raised to .10%, or to .60%. A further defect of the law is that people who wish to comply cannot know with any certainty what their BAC is until the police test it. This is the exact definition of tyranny. When citizens cannot know how to conform their acts to the law, the rule of law is at an end.

But it gets even worse. At least there is a clear definition of lawful and criminal behavior. It is criminal to drive “under the influence of any alcoholic beverage or drug . .” In practice “under the influence” means whatever the authorities decide it means. Prosecutors often file charges when blood tests only show a BAC of 0.07%, 0.06%, or even 0.05%, when they have evidence that the defendant weaved or drifted, or that the defendant performed poorly on police administered “Field Sobriety Tests”. Thus the laws subject anyone who drives after drinking even a totally insignificant amount of alcohol to the threat of prosecution, if prosecutors think they can persuade a jury that the person drove “under the influence” whatever that means. A favored prosecution trick is to charge defendants with less than .08% blood results with a violation, even when there is no evidence showing the defendant was under the influence, in hopes that the defendant will plead to a lesser charge rather than risk a jury trial.

Prosecutors often make a big show about “offering” to allow a plea to the lesser included charge when no evidence exists that a below-the-limit defendant was under the influence, but of course if the defendant was below the limit and was not influenced, there was no crime! But many frightened defendants take the deal.

This isn’t “law” at all. The standard is so vague and dependent on the arbitrary whims of the authorities that prosecutions under this statute are nothing more than displays of unrestrained government power. Indeed, under this statutory scheme there is no way to mix driving with drinking, no matter how small the quantities and be safe from the threat of criminal penalties.

Indeed, so called “zero tolerance” laws banning driving with any blood alcohol at all would be a vast improvement on this situation. At least then people who wished to behave legally would know that compliance requires no drinking whatsoever if you wish to drive.

Another problem with the the drunk driving laws is that they create a vast and parasitic industry of specialized sobriety police, tow truck companies, judges, DUI defense lawyers, DUI prosecutors, and ignition interlock companies. Particularly ghoulish are the government’s blood testing labs, which draw and test blood from arrested suspects, and the paid blood “experts” who testify for the prosecution in DUI trials. Interestingly, these same blood labs participate in the drug war, testing blood for “controlled substances.” One comic aspect of the DUI industry are the court ordered DUI schools, which are expensive and silly wastes of time where students watch crash videos in a supportive AA environment.

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Of course the drunk driving laws also bring in huge amounts of money to the county governments and courts that enforce them. Fines for first time offenders can reach as high as 1,200 dollars, plus booking fees and victim’s fund fees. Their mandatory auto insurance rate will usually double in cost.

Once a defendant has been convicted of a DUI the Department of Motor Vehicles automatically suspends his license. Since modern life requires driving, the defendant now runs the risk of prosecution for driving on a suspended license, which will bring in another $1200 fine for the government upon conviction.

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Can’t pay? The court will order a convenient monthly payment plan at 50$ a month until the entire amount has been paid. Such fines can financially destroy a working class person and cripple a middle class person. But by far the worst indictment of the criminal drunk driving laws were the types of people the law sucked into the torture of the criminal justice system. The majority of defendants had no criminal record and no experience with police or the courts. Unlike other classes of criminal defendants, who were mostly young males, DUI defendants were just as likely to be elderly, or middle aged women, or thirty-something professionals, as they were to be young males. This suggests that the problem is not with the defendants, but with the laws.

The frustration, fear, and humiliation was obvious to anyone in court who cared to look, and it should be embarrassing to be part of the system that was torturing them. Just to extract money for the court system.

Turn off the money machine….

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