Drunk driving is a bad thing. I feel bad for anyone who has lost a loved one to a drunk driver. But I can not tolerate the type of bedwetter hysteria that allows this sort of stupidity to happen:
Miami Dolphins receiver Chris Chambers will plead not guilty to driving while impaired, his lawyer said Wednesday.
George Laughrun said Chambers will fight the charge stemming from his arrest July 14, when he was pulled over several miles south of downtown Charlotte.
Chambers was also charged with reckless driving and speeding. A hearing on the case scheduled for Wednesday was postponed until Sept. 26.
Laughrun said Chambers was charged with DWI despite a blood-alcohol level of .06, below the legal limit of .08. Under stricter drunken-driving laws in North Carolina, Chambers could still be convicted.
Why even have a limit? Why not make it so that if you watch a beer commercial 5 hours before driving, we can put you in jail. Wouldn’t we be better off spending our resources to catch real criminals who are a real threat. Like locking this guy up for 25 years for…. gambling?
The Pirate
I have no sympathy for DUI offenders. If you consume alcohol and then drive, you are making a concious decision to put the lives and the well-being of other people at risk. I don’t care if you’ve only had one glass of wine, it’s still extraordinarily irresponsible and belies an extreme disregard for the lives of your fellow man. DUI laws ought to be harsher, not less harsh. Like mandatory-license-confiscation a year or two in jail harsh.
John Cole
I say execution! For .01! Let’s make it illegal to have any chemicals in your system whatsoever!
Because then everyone will be safe!
Zifnab
There is a reason we set the legal limit at .08 and not .06 or .10 or .0314159265… and the reason is that at .08 we believe your driving is impaired enough to make you a hazard to others.
Why drunk driving is demonized while talking on a cell-phone or driving while really, really tired or driving with lots of loud children in the car all get you off with a wrist-slap at the worst is somewhat beyond me.
Coming from a college town, I can tell you tons of people drive drunk. It’s not safe, it’s not smart, and it’s not to be encouraged, but treat the crime like what it is – a crime of stupidity. Fining someone a $1000 and revoking his license for a month makes someone less stupid. Throwing someone in jail for a year just wrecks his life. Chasing after someone who’s not even a real danger cause he’s only had one beer? Now you’re just wasting my time and tax dollars.
demimondian
Let’s start by asking a couple of good questions here, John.
(1) How long after the arrest was the test run? If you’re at 0.06 two hours after the arrest, then you were significantly about the limit when you were on the road?
(2) Do you trust a defense attorney to do his job? If so, then why aren’t you looking at his statements as being the equivalent of the Betrayus Report in September? It’s not his job to tell the truth; it’s his job to make it hard for the police to win their cases.
RandyH
My problem with the whole DUI enforcement scheme is that it is actually a profit center for law enforcement. So they have no incentive to investigate violent or property crimes because that costs money. But DUI’s make money from fines and administrative fees for whatever law enforcement entity stopped you.
And .06 as a bllod alcohol level? Puuuhlease! You can blow that after eating a slice of white bread. Or after gargling with mouth wash. Really. But it’s A-OK to drive on your anti-depressant medication, as long as you have a valid prescription for it.
demimondian
No. You can’t.
Sorry — that’s just not true.
Shabbazz
I’ve gotten a wicked-dizzy-pass-out buzz from smoking cigarettes before! I say we ban smoking while driving, too!
THE CHILDREN! THE CHILDREN! WON’T SOMEBODY THINK OF THE CHILDREN?!?
RandyH
Prove it.
marc page
An associated bit of unconstitutional stupidity is the practice throughout the nation’s courts of ordering people accused of DWI/DUI (prior to conviction) to attend meetings of Alcoholics Anonymous.
AA has long been recognized (by several court rulings) to be a “religious organization,” and this widespread practice amounts to the state ordering a citizen to attend church services.
Fledermaus
Hate to tell you this, John. But most DUI laws are written so that all the state need show is that the person is driving under the influence of alcohol, the definition of under the influence being left to a jury – the breath tests are just an easy way to get a conviction
Everyone should also know that DUI’s apply to prescription drugs in most states as well, even if you have a prescription.
demimondian
Trivially.
White bread contains less than 0.02% alcohol *by weight*. The amount of goo left on your teeth is a tiny volume. There isn’t enough ethanol in that bread to significantly affect the amount dissolved in your air stream, much less your blood stream.
demimondian
Oh, yeah, and locking someone up for selling privileged information — as well as, it appears, fixing games upon which tens of millions of dollars of advertising depend — is quite a bit different than locking him up for gambling, wouldn’t you say, John?
You know, you’d do well to rethink your knee-jerk antipathy to the legal system. It’s not perfect, but it’s not comprised of idiots, either — and it’s the closest thing we’ve got to justice in this country. Yes, it’s opaque, but it’s no more opaque than any other highly developed area of information-based work.
Tayi
I don’t know the laws in North Carolina, but since he’s also being charged with reckless driving and speeding, isn’t that likely the basis of the drunk driving charge? You know, he was demonstrably driving as though he was impaired, and he had demonstrably been drinking, therefore they’re assuming he was impaired because he had been drinking.
Not that that’s always a good assumption, but it’s not totally crazy. Perhaps he was impaired from something else- maybe he was really tired, or talking an a cell phone. But they can’t test your breath for how tired you are, so this was the only thing they had evidence for.
Dave
…but mouthwash will set off the breathalyzer. He did have a point with that.
However, if Chris was under the legal limit why is he being punished? Seems insane.
Zifnab
Could he walk a straight line, say his ABCs, and touch his nose while standing on one foot? No? Then we’ll talk.
But if you’re going to mandate .08 as the legally drunk limit, then enforce it. That’s all people ask. If we really think .05 or .03 is closer to the “You’re too fucked up to drive” limit, then by all means, lower it and save us all this bullshit.
demimondian
Now it’s your turn. I don’t believe that claim, although I’ve heard it a great many times.
Find an example of a controlled study in which the subjects had not been previously drinking, please. In principle, yes, mouthwash (which contains quite a bit of ethanol) can set of a breathalyzer. I’ve never seen a controlled study, though — and I will bet you long odds I’d have seen one, if it existed. There are too many people who want to get out of the 0.2% BAC (not 0.02%, 0.2%) that they’ve gotten nailed with.
But I’m willing to be wrong. So, please, show me the data.
marc page
In California, there’s an often used charge called “wet reckless,” … despite being under the legal limit (.08) it is still prosecuted as a DUI.
John Cole
It is far from perfect. It is basically, anymore, a random draw to see whether anyone of us will be sent to jail after we have been charged with a crime by a career-minded prosecutor after being arrested by an underpaid and under-educated and more than likely ignorant and aggressive law enforcement officer, out enforcing laws written by a self-serving politician catering to the squirming and screaming masses who have somehow been convinced everyone has an automatic right to be perfectly protected from everyone and everything. And that is before you are tried in front of a disinterested jury who aren’t being properly compensated for their time.
In my short lifetime, incarceration rates are through the roof and the mindset of “THROW THE BOOK AT THEM” seems to be the default position of all politicians, and more and more people are in jail and less and less is being done to make sure they belong there or that they receive the attention they need to make sure they don’t come back.
So, when someone is charged for a DUI when they are well under the limit established by law (a limit which I think is too low as it is), I think a little sarcasm is in order.
Perry Como
Field tests are a really, really poor way of determining impaired driving. They are entirely subjective.
demimondian
Perhaps — but how many times have you flown off the handle about some legal obscenity, only to have to back off from it later on?
As I said, there are reasons to doubt the complete candor of the source in this case — attorneys aren’t paid to tell the complete truth except when it serves their purposes. As other people have said, 0.08% is a sufficient, but not necessary, criterion for DUI — you can be operating while impaired with no alcohol in your system, for all that.
Zifnab
Uh… I hate to do this to you John, but that’s your former party you find yourself complaining about again.
It wasn’t “Hugs for Thugs” Democrats who were jacking up sentences and screaming bloody murder over furlow programs, when prisons were getting overcrowded in the 70s.
The Republicans were notorious for getting “tough on crime” by pushing state executions en mass and long-term sentences for minimal offenses, all while privatizing the fuck out of the prison system. And that was way back in the 80s, when all of America was getting its Reagan on.
Seriously, you want to free pot, you hate government intervention, and you think turning the justice system into a giant political organ is a bad thing. How in the flying fuck were you ever a conservative?
Dave
Well I didn’t call you out in the first place…I just noted that mouthwash will set off a breathalyzer…but since you asked:
From here:
further on:
but really demi, think about it, most mouthwashes contain around 40% alcohol. If you rinse and blow you are going to blow alcohol into the machine.
I believe Mythbusters also did this on an episode testing various ways to beat the breath test. When they tried mouthwash, the machine showed a marked increase in the amount of alcohol reported.
John Cole
Zifnab-
That is a complete whitewash of history. Both parties are complicit in the current state of affairs in regards to the criminal justice system. Much of the idiocy regarding the current war on drugs can be traced DIRECTLY to none other than arch-conservative Tip O’Neill.
You have heard of Len Bias, haven’t you?
Punchy
Holy effin’ crap. Something me and Cole strongly agree with. Lordy….
srv
Zif – I challenge you to find a single Dem who has ever voted against MADD.
demimondian
What volume of ethanol is going to be retained in the mouth? Think about it — the total volume of liquid retained will be a few hundred microliters, at most, which is not enough to raise the exhaled ethanol level measurably.
Punchy
So the objective measure, the BAL test, is now subjective, too? And this is fair?
Demi, under what reasoning? Why isn’t having a child crying in the car considered “impaired”? What about cell phones? Yet you only rail against someone with trivial amounts of chemicals in their body. How biased.
Fledermaus
Au contrare.
The Other Steve
and just two weeks ago the 19 year old daughter of my cousin was killed in a single-vehicle car accident. She was with her boyfriend, and the boyfriends mother was driving the SUV. She left the road and hit an embankment at 2am in the morning.
I guess I’m not too convinced that drunk driving is a big scam.
demimondian
Well, seeing as how I, myself, have, in fact, been pulled over because I had a sick child screaming in my car, distracting me, the answer is “who says it isn’t?” (This happened in Natick, MA, in the fall/winter of 1989, for those of you playing the home game.) I’m all in favor of pulling people over for driving while cell phone, and, tragically, there will eventually be an accident like the one in Madison that led to the creation of MADD, but due to phone distraction.
As to the triviality of 0.08% BAC, the reaction time effects of that level of intoxication are pretty dramatic. So I’d question your use of a perjorative.
demimondian
Sorry, GermanBat — wiki is not a reliable source, particularly where there’s a political point to be made. Seriously, do you people think that judges are credulous fools?
The Other Steve
Guys concerned about how terribly inaccurate the breathalyzer is.
You are more than welcome to submit to a blood or urine test. I’m quite certain that the officers will be more than happy to make that happen.
Always remember that, so next time you get pulled over because you just took a swig of listerine and spit it out the window. Remember you can take a blood test to prove your innocence.
caustics
Maybe. But we sure did have Tipper Gore and the whole PMRC thing, including such memorable highlights as Frank Zappa testifying before congress:
“My name is Frank Zappa. This is my attorney Larry Stein from Los Angeles. Can you hear me?”.
It was in spirit of that time I suppose. 2000 years from now, the ’80s culture in America will still be footnoted as a baffling anomaly.
John Cole
I am not excusing the behavior of Tipper Gore and the other idiots who launched into the idiocy over music and video games (a movement now infested with Sharpton and the Religious right), but comparing their behavior which was at best a tedious and minor nuisance to the direct frontal assault on our liberties that took place because of the 1986 drug law. All the good stuff we enjoy now- the trashed 4th amendment, the foreiture laws, mandatory minimums, no knock raids, incentivised robbery of private assets by the police who then use the property to fund more of the same- all of that comes from the same source.
Comparing the two is to state that a hangnail is the same as having both legs amputated.
jake
Bring back Prohibition say I!
Or, make it really, really hard to get a license and fairly easy to lose it so numbnuts of all stripes are kept off the road and people who are allowed to drive are afraid of getting their driving privileges yanked so they POLICE THEMSELVES.
Yeah I know, Prohibition would be preferable, set flame throwers on “Crispy.”
As for this particular case:
At the most Chambers will have to make a PSA.
The end.
Dungheap
John,
Here’s the explanation:
In North Carolina you don’t have to have a BAC of over 0.08 to be charged, you just have to be under the influence of alcohol. Chambers qualified. However, he can use the fact that he was under 0.08 BAC as rebuttal evidence to the charges.
The Other Steve
Most memorable had to be John Denver and Dee Snider.
The Other Steve
True
Punchy
Huh? Triviality? Hey, the law must be grounded on objectiveness. A policeman must have tangible evidence that you’ve murdered someone….he cannot just say, “I think he’s a murderer”…
Likewise, why would you trumpet a DUI law that allows complete subjectiveness? What stops an angry or racist cop from just making up the charge, if the “0.08%” doesn’t really matter? You’d be happy for such subjectiveness by police?
Dave
How about this Demi:
It ain’t the AMA article referenced in the Wikipedia entry, but it’s a guy not drinking, who rinsed with mouthwash then blew into a breathalyzer. :)
jake
Right. Prohibition. Trust me on this. All regulations that limit and/or punish the use of certain substances follow the same pattern.
caustics
I was actually agreeing with you as to the point one can’t lay the blame for this sort of thinking solely on Republicans, that was my point in mentioning Tipper.
And the historical context does matter. Much of the the drug legislation in the ’80s was in reaction to how the cocaine trade was destroying Miami at the time.
dave
Breathalyzers are only considered to be accurate within +/-.02 BAC, so in most states they will still arrest you for a .06.
But it’s a pretty tough case to make, when the state’s own evidence says you are (very likely) not impaired according to their own standards.
Winning a .06 BAC case is a layup for any good DUI defense attorney, and I’m guessing he can afford a good one. So unless the guy took a piss on the cop or did something else dangerously stupid, he’ll be walking out with a not guilty.
Krista
Part of me wonders if this wasn’t sort of a tag-on, though. As an example, around here, even though pot is illegal, one rarely gets busted for posession of small amounts. However, if they’re caught doing other crimes while posessing that same small amount, the charge will definitely be added on. Maybe the guy wasn’t that drunk, but was driving like a lunatic, and the cop was able to use a legal loophole to add on the DUI to make a point to this guy.
Just a theory, anyway….
demimondian
How about that? Five minutes after the alleged report, the report is zero.
Next question?
demimondian
OT warning…
here we go again…
myiq2xu
No, a wet reckless is when a DUI with a BAC of .08 to .99 is plea bargained down to a reckless driving. If the person is subsequently convicted of DUI within 3 years, the first conviction counts as a prior DUI.
Here in Big Smoggy, we have 2 DUI sections, VC 23152(a) and VC 23152 (b). The first makes it a crime to drive under the influence of drugs or alcohol, the second says that if the driver’s BAC is .08 or higher, they are presumed to be under the influence.
What’s the difference? For a conviction under 23152 (a) the police officer has to show that the driver was under the influence by some evidence such as their performance of Field Sobriety Tests (FST’s) or erratic driving.
On the second charge, the cop must show that the person was driving and BAC was .08 or higher. That’s it. The FST’s and alleged poor driving only go to probable cause to arrest. I’ve never seen a judge dismiss a DUI for lack of PC to arrest if there was a BAC of .04 or higher.
tBone
That’s the case here – state law makes a distinction between DUI and DWI. Or it used to, at least. I don’t pay that much attention these days, I’m too busy posting comments to blogs from my phone while I’m driv
yet another jeff
I tried to talk about the whole 4th amendment slippery slope thing and grandpa john came in and accused me of jackalopery…
I just googled MADD+Mission creep and that link to my post was on page 1…fucking creepy…
Fun stuff, how MADD monitors judges that might be lenient and uses the information in political campaigns…remember how the founder left MADD due to mission creep?
“Even MADD’s founder thinks the group has gone too far. ‘I think they’ve become far more neoprohibitionist over the years.’”
— Candace Lightner, as quoted in Investor’s Business Daily, September 2000
“‘I thought the emphasis on .08 laws was not where the emphasis should have been placed,’ Candace Lightner [founder and former president of MADD] said. ‘The majority of crashes occur with high blood-alcohol levels, the .15, .18 and .25 drinkers. Lowering the blood-alcohol concentration was not a solution to the alcohol problem.’”
— Los Angeles Times, December 2002
Punchy
Gotta love a % error of 25%. I bet that goes over well. That means someone easily in the “sauced” range (0.099%) can claim “% error, bitches!” and walk.
Really, that degree of accuracy is horrendous.
The Pirate
John, if someone knowingly put the lives of other people on the road at risk, why should I have any sympathy for him at all? It is a fucking fact that even one drink will impair the ability to drive and to react. If someone is such a tremendous asshole that he’s willing to fuck up other people’s lives because he can’t be bothered to call a cab, then throw the book at him.
Don’t try to compare this with the War on Drugs and don’t pull out a “no chemicals at all in your body!” strawman. This isn’t about that. I don’t care if you snort lines of coke in between shots of Wild Turkey. Just don’t get in a car afterwards.
yet another jeff
It’s ok, Punchy…they round up and never let anyone independent verify that the breathalyzer is calibrated correctly. If you blow, and you’re in the ballpark, you’re fucked. Prison Nation, bitches!
myiq2xu
When MADD first came into existence, their mission was essentially to strengthen DUI enforcement to crack down on repeat offenders.
We heard true horror stories of drivers with multiple prior arrests killing innocent people (mostly children) while driving drunk.
There being no constituency in favor of drunk driving, politicians rushed to enact new laws.
But among the laws pushed nationwide was a reduction of the presumptive BAC from .10 to .08, even though most drivers arrested for DUI had BAC’s well above the higher limit.
There was no real explanation for the lowering of the limit, no evidence of any significant problem of drivers in the .08 to .099 range being at fault in fatal accidents.
Not satisfied with the number of drivers arrested under the new lower limits, DUI checkpoints were instituted, and evidentiary standards were loosened.
Now we are presented with an example of someone who was under the presumptive limit and was arrested anyway.
No one is arguing that people should be allowed to drive drunk. There is a rational argument that driving with any measurable level of alcohol should be prohibited. After all, we do the same thing with marijuana and meth.
But a cynic like myself might wonder if the continually increasing emphasis on DUI enforcement might have something to do with the disposition of the escalating fines and penalty assessments imposed on people convicted of DUI.
Here in California, the arresting agency even bills the arrestee for the “costs” of the arrest, a situation unique to persons charged for DUI.
Don’t even get me started on the money making potential for towing and impound companies, mandatory DUI classes, insurance companies and others.
The Pirate
I agree with you in some cases- DUI checkpoints, in particular, are ridiculous. But characterizing drivers who are under the influence as not being a “real threat”, as John did, is absurd. And yes, I agree that it’s probably not a good thing that there’s a fairly substantial industry revolving DUI convictions. That’s part of the reason I’m in favor of a much simpler system – drive under the influence (not necessarily drunkyou don’t have to be shithoused to be a danger), lose your license.
Dave
What about people who drive tired? Or talk on their cell phones? Or change a CD? Or look at a map? Or drive to fast? Or drive to slow? Or let their mind drift while driving?
There are literally thousands of things that a driver can do that are dangerous and put others at risk. Most of them aren’t illegal. What about all those?
Because of random circumstance, the act of driving itself is dangerous and puts others at risk.
Obviously I’m not advocating drunk driving or even buzzed driving, but if someone has a couple at a bar while watching a game, or a couple of glasses of wine at a restaurant at dinner. I don’t think they are tremendous assholes that need to have the book thrown at them.
myiq2xu
I think the current system makes little sense.
You can drink a little, but not too much. There is no practical objective way for people to tell whether they are over the limit or not, until they take a PAS or Intoxilyzer test, currently available only after they have been detained or arrested.
Some drivers are legally intoxicated hours after they last consumed alcohol, such as someone who drank heavily and then slept six hours before getting up to go to work the next morning.
The subjective tests for intoxication aren’t much use to someone who has their judgment impaired by alcohol. The level of impairment is typically minor for someone at the .08 level, so a person at that level could easily conclude that they are okay to drive.
Forget about trying to estimate the intoxication level by calculating body weight, number of drinks and time. That’s as unreliable as using the rhythm method of birth control.
A zero tolerance policy is simple for everyone. If you drink, don’t drive. Period.
But we need to quit demonizing the low BAC drivers (.08-.10) by comparing them to drivers who are semi-concious because of a BAC of .20 or higher.
Enacting harsh penalties for 1st offenders with relatively low BAC levels because of repeat offenders with high BAC levels makes little or no sense.
Nancy Irving
I would think that the significant, though not by itself illegal, blood-alcohol level, *together with the observed reckless driving that caused the guy to be pulled over in the first place*, puts the charge well within legitimate prosecutorial discretion, if consonant with the letter of the law.
Have to disagree with you on this one.
jake
DUI laws in other nations.
Simply because I’m a research geek.
There is a neater run down on wiki but it’s wiki.
MNPundit
I disagree, mostly because there are people who are lightweights (it might even apply to a football player) who are actually impaired though their blood alcohol may be under .08. Was he impaired by alcohol? The best way to find out is to have all the evidence out I think, and that means court.
August J. Pollak
What’s funny is how you’re trying to set up an initial premise that anything akin to saying you simply shouldn’t be allowed to drive with a trace of alcohol on you is a ludicrous notion. It’s funny because that’s a perfectly sensible policy and I’d support it wholeheartedly. I’m not really sure how I’m supposed to be sympathetic for people who only SLIGHTLY impaired their motor skills before getting behind a wheel.
And frankly, John, no offense, but starting a post with “I feel bad for anyone who has lost a loved one to a drunk driver” and then spending a few hundred words suggesting laws punishing drunk driving are ridiculous sort of belies that.
John Cole
If he had blown .08 or above I would not have said a word.
Billy K
But…Johnny Fever’s reactions got QUICKER the more he drank. I’m going with him on this one.
yet another jeff
Wow, a whole lot of ability to detach emotion from this issue…and still one person’s mild impairment if any might be better than another person’s lack of impairment and skills. No individual baselines to determine what is impaired, a BAC that is determined by machines with software as secretive as a Diebold voting machine, and a percentage selected by the urging of lobbyists. Yet you want to give more power to the authorities? Good thing we’re not talking about the PATRIOT act here…but you see why that worked…we already gave up part of the Constitution to face a lesser threat, why wouldn’t we give up those rights on a wider basis when facing a more existential threat?
August J. Pollak
What about people who drive tired?
If you are noticeably impaired, even without alcohol, you can be arrested.
Or talk on their cell phones?
This is in fact illegal in several states and an enhancement of the impaired driving statues.
Or change a CD? Or look at a map?
Several states prohibit driving with only one hand or a blanket use of any device while driving so as so impair reaction.
Or drive to fast? Or drive to slow?
Umm…
Or let their mind drift while driving?
Sorry, I’m still stuck on trying to figure out if you just suggested speeding being illegal is unfair.
Punchy
You do realize, right, that restaurants make a ton of money on liquor sales, right? A zero tolerance policy would crush most small restaurant buisnesses, as what responsible adult is going to risk even a glass of wine at dinner?
Sorry, but that’s lunacy. It’s complete bullshit to imply that a slighty impaired driver is just as dangerous as a very impaired driver. That’s political correctness speech run amok. There’s degrees of everything in this world, and to claim that a 0.02 is the same danger as 0.12 is just pure bullshit. And to enforce a “zero tolerance” (read: draconian) policy would make drivers paranoid, crush the liquor and restaurant industry, and absolutely clog the courts with ridiculous “DUI” cases with some guy that swallowed his mouthwash on accident before going to the convience store and got pulled over.
August J. Pollak
But he’s being charged with driving while impaired. The state is, I would assume, planning on proving this in a trial. If they prove he was impaired while driving, do you still object because he was below the “official” drunk level?
Again, your next comment was mocking the existence of the BAC level in general, and the idea of setting laws like this for public safety. What exactly is your problem here? Do you think BAC levels should just be eliminated? If so, why are you complaining he’s being charged below a BAC level you think is stupid anyway?
John Cole
August- The limit is in place for a reason- we don’t want impaired drivers on the road. It makes no sense to arrest people for driving under the limit if the “limit” is the law.
Well, no sense other than another conviction for a prosecutor, another round of court fees for the county, and who knows how much geld passed on to the police department and the social workers the guy will have to see after he is convicted.
You want to arrest and prosecute people for driving at the .06 level, then make the limit .06. Right now what you are arguing for is a system which is, essentially, one in which drunk driving is whatever the prosecutor says it is. Have you ever heard of a case in which an individual blew a .10 (the same amount over .08 that Chambers was under), but the cop testified the guy was not impaired and really not a threat or a problem and that he should not be convicted? Of course not, because it is agreed (in those states where .08 is law) that .08 is the established limit.
August J. Pollak
You do realize, right, that restaurants make a ton of money on liquor sales, right? A zero tolerance policy would crush most small restaurant buisnesses, as what responsible adult is going to risk even a glass of wine at dinner?
Oh dear god, not responsible adults! They’ll be the downfall of all of us!
Arguing an ease on BAC levels based on statistics is one thing, but that’s just a really lame argument, complete with the standard “it’s PC oh noes a term no one has ever used non-sarcastically in about thirty years!” nonsense. The beer industry suffered over drinking ages, too. Defenders of drinking and driving should stick to statistics, not fear-mongering about teh eval NannyState.
Punchy
WTF does this mean? See, it’s a SUBJECTIVE interpretation where an objective one is demanded. You cannot pull me over and simply declare “he’s impaired b/c he’s smoked the weed”, without any evidence of highness!
A felony such as DUI demands an objective measure. If that doesn’t exist, than any disgruntled cop can simply lock you up under the phony guise of “impairment”. I’m shocked you agree with this.
August J. Pollak
It means
There’s this site called Google that lets you input things like “North Carolina drunk driving law” and then you don’t need to yell at me to explain it to you.
And John, I think that pretty much answers why he’s being charged despite being below the .08 BAC level as well, and why “setting the standard” isn’t relevant- because it’s not the standard. The state uses multiple factors to determine driving while impaired… as they reasonably should.
Punchy
You’re right. It’s so completely irresponsible for an adult to have a glass of wine with dinner at a nice restaurant. How completely immature. Yet it’s amazing how many MILLIONS AND MILLIONS of adults do this every night. I guess most of us are all just fucking lunatics. Whooda thunk?
Fear mongering? It’s called common sense. I’m glad you trust your PD to apply “impairment” based on “physical appearance”, but I sure the hell don’t.
August J. Pollak
So you’re saying Chambers is innocent, then?
myiq2xu
I wasn’t arguing that someone with a BAC of .02 was as dangerous as someone with a BAC of .12, I was simply saying that a zero tolerance (meaning driving with any measurable level of blood alcohol would be illegal) would be simpler.
The current law is confusing and sweeps up many people who were trying to obey the law but miscalculated, or in Chambers’ case, were under the presumptive limit but got arrested anyway.
BTW, in the Draconian code, the punishment for every listed crime was death.
John Cole
I am saying he should not have been charged with DUI.
BTW- if I am dressed really well and blow a .12 when stopped at a checkpoint, and not for driving erratically, will I still get a DUI? Even if I “passed” all the field sobriety test? I mean, since the state is taking into account all sorts of factors.
What if I am polite? Rude? Black?
yet another jeff
Zero tolerance is always simpler, it doesn’t require thinking.
Andrew
And stupider. So…
Punchy
Innocent of the DUI. Can’t say he wasn’t speeding (objective measure!) or reckless driving (crossing the center line, objective measure!) or driving without a license (objective measure!).
Punchy
Yep. And then you’ll get 14,934 DUI’s a month, all litigated using the quite reasonable Mouthwash Defense, applicable or not.
Yet 14,934 people are out thou$and$, lawyers are driving new BMWs, the courthouse is jammed, and halitosis becomes Public Enemy #1 as mouthwash sales plummet.
yet another jeff
Then we could finally get the “10 and 2” vs “9 and 3” debate codified.
Krista
Really? Are you serious? That seems rather over-the-top. (Although it might help reduce having to watch any fellow commuters mining for the green gold…)
I’m glad it’s not illegal to drive with only one hand here. There are many, many farms between my home and my work, and I’ve usually got one hand on the trigger of my air freshener, to eradicate the perpetual smell of cowshit that wafts through my vents.
akaoni
Come on John, we know the real reason you’re pissed about this: Chambers is on your fantasy football team. So not only did he stink it up for you last year, but now he’s facing imprisonment and might miss time even if he gets off.
Don
I see a lot of arguing over what music the band on the Titanic is playing, .08 vs .06, DUI iz evul, etc.
The point I believe John was making, and I entirely agree, is that a law that says you are driving under the influence when you (1) blow .08 OR (2) someone simply claims says you are under the influence, is baloney.
If this person was driving erratically there are a plethora of violations to charge him with. Tagging him with DUI is some combination of grandstanding and over-reaching, and reveals the law to be a lose-lose for citizens – if .08 is a squishy limit in one direction then it should be in the other as well.
demimondian
I’ll bet that all you French-loving America-hating leftards remember that it’s an important part of many European cultures to drink with a meal? I’ll bet that you don’t know that there’s *also* a zero-tolerance policy in force throughout much of Northern Europe. Now, how do you think they reconcile those two things?
There’s this concept called “designated driver”. You might have heard of it? Right. So, guess what? Somebody doesn’t drink with dinner. Wow!
Perry Como
Really? This site doesn’t quite agree with you. Unless “much of Northern Europe” is Hungary, Czech Republic, and Croatia. Although the location of zero tolerance nations in Europe is somewhat illustrative…
Zifnab
Touche
Bas-O-Matic
August 15th, 2007 at 6:27 pm
demimondian Says:
mouthwash will set off the breathalyzer
Now it’s your turn. I don’t believe that claim, although I’ve heard it a great many times.
Find an example of a controlled study in which the subjects had not been previously drinking, please. In principle, yes, mouthwash (which contains quite a bit of ethanol) can set of a breathalyzer. I’ve never seen a controlled study, though—and I will bet you long odds I’d have seen one, if it existed. There are too many people who want to get out of the 0.2% BAC (not 0.02%, 0.2%) that they’ve gotten nailed with.
But I’m willing to be wrong. So, please, show me the data.
I know this was addressed partially above but:
On the other hand, products such as mouthwash or breath spray can “fool” breath machines by significantly raising test results. Listerine, for example, contains 27% alcohol; because the breath machine will assume the alcohol is coming from alcohol in the blood diffusing into the lung rather than directly from the mouth, it will apply a “partition ratio” of 2100:1 in computing blood alcohol concentration—resulting in a false high test reading. To counter this, officers are not supposed to administer a PBT for 15 minutes after the subject eats, vomits, or puts anything in their mouth. Also see the discussion of the “slope parameter” of the Intoxilyzer 5000 in the “Mouth Alcohol” section above.
This was clearly illustrated in a study conducted with Listerine mouthwash on a breath machine and reported in an article entitled “Field Sobriety Testing: Intoxilyzers and Listerine Antiseptic”, published in the July 1985 issue of The Police Chief (page 70). Seven individuals were tested at a police station, with readings of .00%. Each then rinsed his mouth with 20 milliliters of Listerine mouthwash for 30 seconds in accordance with directions on the label. All seven were then tested on the machine at intervals of one, three, five and ten minutes.
The results [I can only read this as after one minute, .ed) indicated an average reading of .43 blood-alcohol concentration, indicating a level that, if accurate, approaches lethal proportions. After three minutes, the average level was still .20, despite the absence of any alcohol in the system. Even after five minutes, the average level was .11.
In another study, reported in 8(22) Drinking/Driving Law Letter 1, a scientist tested the effects of Binaca breath spray on an Intoxilyzer 5000. He performed 23 tests with subjects who sprayed their throats, and obtained readings as high as .81 — far beyond lethal levels. The scientist also noted that the effects of the spray did not fall below detectable levels until after 18 minutes
So in short, yes mouth wash can make you blow a ridiculously high BAC. However, the effect dissapates within 15 minutes or so.
I get to watch DUI tapes as part of my job, and the actual procedure followed in my jurisdiction is as such:
1. Officer One arrives on the scene of an accident or pulls over someone driving suspisciosly. Officer One suspects the driver is impaired and calls the DUI car.
2. The DUI car arrives in five to fifteen minutes. DUI Officer administers field sobriety tests which take about another 10 to 20 minutes.
3. If DUI Officer determines that a Breathalyzer is needed, DUI officer places suspect under arrest and places the suspect in the back of his squad car.
4. DUI officer reads a required four paragraph notice detailing the consequences of refusing to submit to the breathalyzer. Approximately 5 Minutes
5. DUI officer Mirandizes suspect and asks him if he will continue to answer questions. DUI Officer tells suspect that they will then wait 20 minutes before applying the Brethalyzer
6. They officer waits about 22 minutes. Then the Breathalyzer is given.
So it can be anywhere from 40 minutes to an hour and a half between a traffic stop or an accident and adminstration of the Breathalyzer test.
My guess is that in this case, the arresting officers and the DUI officer (if there was one) pretty much took their time to get everything right becasue they realized that this guy was going to have a top defense lawyer. The prosecuter is probably taking the position that the defendants BAC was much higher when he was driving than it was when he blew a 0.06.
As people have said, blowing a 0.08 creates a presumption of intoxication. It isn’t necessary to prove intoxication, much less bring charges.
Leo
“As people have said, blowing a 0.08 creates a presumption of intoxication. It isn’t necessary to prove intoxication, much less bring charges.”
Of course, that doesn’t answer the policy question, which is what this thread is about.
To put it another way – the question isn’t what the law is, but what the law should be.
r€nato
I don’t understand the outrage. There have been laws on the books for quite some time which allow the police to cite drivers for driving while impaired, which is not the same as DUI (.08 threshold). This is not some new invention of the MADD crowd (which verges a bit too much on joining the abstinence bandwagon for me).
Some European countries, as pointed out up-thread, can cite you for BAC as low as .02 or .05. You can be jailed for a year and lose your license for a year.
Some pro athlete getting cited for blowing .06 just doesn’t even begin to move the needle on my injustice meter. I’ll save my outrage for things like, oh, Jose Padilla or warrantless domestic wire-tapping.
mark
I sumbled on this web blog today when researching for something else. I have read a vast amount of what is said on this and have to take issue with demimondian. After over 15 years of working in the criminal justice system and knowing many judges, prosecutors and police officers first hand, I feel that the faith you put in them is misplaced. I have practiced law in 6 states and over 30 counties. I have practiced on things running the range of DWIs to billion dollar white collar fraud. I have practiced in state and federal courts and handled street crime, white collar crime and juvenile crime. I have represented multiple priests, police officers, lawyers, federal agents, business leaders, teachers and respected members of the community. I have represented Democrats and Republicans, men and women, old and young, white, black, asian, latino, straight and gay, educated and mentally retarded. I have been in front of every kind of judge you can think of and in every type of setting. Want to know what I find that is consistent? They are all people. There are as many good people as bad in every part of the system. There are as many liars and cheats in the government’s witness lists (and government counsel) as there are in the defense. There are so many wrongs that are perpetrated every day, it would make your head spin. This is not TV and I am not some bleeding heart (registered Republican, offered jobs with the NY DA and the FBI) who just thinks the system is broken. I think that each and every case requires a very clear and very calculated assessment of the facts and the people involved. There is no more reason to believe a police officer than there is to believe or disbelieve a defendant. Cops are not always “lying” but rather see what they want to see, just like any normal person. The problem is when these assumptions are morphed into facts and then used to convict someone.
Having said that, I have to tell you that you are wrong on your views on DWI. Having lost family (my cousin and her infant child) and friends (two high school friends in two separate incidents) to drunk drivers, I am the first one to support ignitition interlocks in every car. I am also completely behind the use of blood draws in every suspected DWI case. However, the Intoxilyer is so inaccurate, so suseceptible to interference (from radios, temp variations, GERD, residual mouth alcohol, mouthwash, etc..) that no rational system should permit a conviction without a blood draw.
I have neither the time nor the effort in me to knock down each of your false statements, but I encourage you to do some research and you will certainly open your eyes ad change your mind. Until then, God help you if you get arrested and charged for a crime you did not commit. For only then will you know just how dysfunctional our system really is. Then you will know and that knowledge will change you forever.
Glenny
DUI laws in my state of GA have reached the point of insanity (and major revenue for law enforcement). Using a breath test is the first mistake. There are too many mitigating factors that influence BAC readings, such as weight, male or female (female livers are smaller and do not metabolize alcohol as quickly by almost 50% less), and in my case (any methyl compounds will quickly raise a BAC level) I was taking ritalin, which is one of these compunds. As luck (or misfortune) would have it, I also cannot swallow pills, which is one reason I take ritalin, instead of other “time release” pills. I was playing in the hot sun with my band, and had consumed 4 beers over 5 hours, and chewed one ritalin during that time. My reading was a whopping .175!!! My wife and step-son KNEW damn well I was not impaired or drunk in the least, and my wife insisted that (I) drive because she didn’t like driving my large truck. We hit a roadblock and they turned my life into a living hell.
I am dead set against DRUNK DRIVING. But the use of BAC’s is junk science at best. Anyone knows that the regular drinker (say someone who has perhaps 2-3 beers in 2-3 nights a week, will have a migher tolerance than someone who had 2-3 beers in one night who never drinks. I know people who do not drink at all, and I would NEVER get in a car with them if my life depended on it cause they can’t drive worth a damn to begin with.
It is CORRUPT, and has become a revenue maker- it has nothing to do with making our streets safer anymore. AND, it had made MADD a frikkin fortune!!