Buzzed Driving and DUII
by: Reoberdorfer • July 29, 2012 • no comments
California attorney Lawrence Taylor just wrote a fantastic blog post about DUII Task forces here. It includes the following blurb: "Austrian-American psychologist and philosopher, Paul Watzlawick, stated 'A self-fulfilling prophecy is an assumption or prediction that, purely as a result of having been made, causes the expected or predicted event to occur and thus confirms its own "accuracy.'"
Anyone out there who has ever worked on a government grant or grant-writing understands: if you get a government grant (esp. federal), you get a bunch of dough. With strings attached. But the strings aren't that bad - you simply have to keep meticulous records of how the funds were used. For instance, many lawyers in my community do work through the county's Legal Aid office to represent victims of domestic violence who seek FAPA Restraining Orders. When we finish the representation (often in a matter of weeks or even days - these are fast-track hearings) we fill out a check-box form that helps keep track of numbers for purposes of the grants that help fight violence in the home.
For cops on DUII saturation patrols, missions, or overtime grant positions (all pretty much the same thing), they also must keep meticulous records for purposes of the grant. The difference is that when I work on a Family Abuse Prevention Act case, I'm not visiting homes to see if I can spot some domestic violence. I'm not getting paid time-and-a-half (pro bono means, in this context, free). However, like the Legal Aid grants, if the numbers don't pan out (if the grant did not result in the projected amount of arrests)
maybe the agency won't get a grant next time. There can be penalties built into the grant itself. So we give police officers a motive to go out and drum up arrests. In one particular county, I've seen this translate to police simply waiting outside of bars and following every car all the way home. If there are no traffic violations (ha! good luck with that) on the way, the person is not stopped. For everyone else, if they slightly touch a fog line (let's say they're just a LITTLE distracted with the police cruiser directly on their tail), they get overhead lights, etc. Bear in mind that it is not illegal in this state to drink alcohol and drive a car (that message may have been lost in the "buzzed driving" billboards) - it's only illegal to drive if you've had "too much." And "too much" means over .08% BAC at the time of driving - or that you've had so much that your mental or physical faculties are adversely affected to a noticeable or perceptible degree by the use of alcohol. My point is that if safety is the goal - safety, not revenue - and there's going to be a police analysis of everyone leaving a bar, why not prevent crime? Why not have a voluntary breath test machine in the particular bar? Why use un-marked police cars in these missions? I've talked to a lot of jury panels, and many of them have that question about breath test machines in bars - they WANT to know what it takes to get them to a particular BAC. Even though "there's an App for that," the BAC from number of drinks consumed for a particular weight and gender still eludes many people. Here my point is that if safety is the goal, the "buzzed driving" billboards that preach abstinence are NOT effective education. What would be more effective education is something that actually complies with the nuance of the real law, that it's legal to drink and drive up to a certain point, and explain what that point is. Maybe it's ugly or not-PC that "that point" is based on weight and gender.
In any event, this blog's point was that if you take a bunch of cops and offer them time-and-a-half to round up as many drinking drivers (remember, that's not illegal) as they can, you're going to introduce bias into the equation - the police want the grant money, the individual officers want the time and a half, and we're dealing with that "often competitive enterprise of ferreting out crime." (That was the language of the late great Justice Robert H. Jackson, U.S. Supreme Court Justice and Nuremberg prosecutor). You're going to end up with .02% BAC arrests - by good cops, who have simply lost perspective. Every year, I talked to more and more people with under-the-limit blows. If you think the officers involved offer an apology, you'd be wrong. Instead DOT pays for a billboard that implies that having ANYTHING to drink and drive is a crime, in an attempt to simply change the law without changing the law. If the police or special interest groups want to change the law to require abstinence - making it illegal to have anything to drink and drive - they should pursue that goal in legitimate ways through the legislative process. Based on my polling of juries on that question over the years, I doubt it would ever work - jurors recognize that having a drink (or quite a bit more! if your weight and gender allow) with a friend after work and then carefully driving home doesn't make them criminals. Having a glass of wine with your spouse at dinner and driving home doesn't make you a criminal. Even if it makes you feel good, relaxed, happy, or "buzzed." What makes it illegal is if (a) your BAC is greater than .08% at the time of driving or (b) your mental or physical faculties are adversely affected to a noticeable or perceptible degree because of the booze. That standard is not zero-tolerance, no matter what a billboard says.
