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Out Of Control
DWI & Drugs
Five Myths About Defending Accused Drunk
Driving Laws Are Out of Control
Drunk Driving Laws Are
Out of Control
by Radley Balko, July 27, 2004
Radley Balko is a policy analyst for the Cato Institute.
When Pennsylvanian Keith Emerich went to the hospital
recently for an irregular heartbeat, he told his doctor he
was a heavy drinker: a six-pack per day. Later,
Pennsylvania's Department of Transportation sent Emerich a
letter. His driver's license had been revoked. If Emerich
wanted it back, he'd need to prove to Pennsylvania
authorities that he was competent to drive. His doctor had
turned him in, as required by state law.
The Pennsylvania law is old (it dates back to the 1960s),
but it's hardly unusual. Courts and lawmakers have
stripped DWI defendants of the presumption of innocence -
along with several other common criminal justice
protections we afford to the likes of accused rapists,
murderers and pedophiles.
In the 1990 case Michigan v. Sitz, the U.S. Supreme Court
ruled that the magnitude of the drunken driving problem
outweighed the "slight" intrusion into motorists'
protections against unreasonable search effected by
roadblock sobriety checkpoints. Writing for the majority,
Chief Justice Rehnquist ruled that the 25,000 roadway
deaths due to alcohol were reason enough to set aside the
The problem is that the 25,000 number was awfully
misleading. It included any highway fatality in which
alcohol was in any way involved: a sober motorist striking
an intoxicated pedestrian, for example.
It's a number that's still used today. In 2002, the Los
Angeles Times examined accident data and estimated that in
the previous year, of the 18,000 "alcohol-related" traffic
fatalities drunk driving activists cited the year before,
only about 5,000 involved a drunk driver taking the life
of a sober driver, pedestrian, or passenger.
Unfortunately, courts and legislatures still regularly
cite the inflated "alcohol-related" number when justifying
new laws that chip away at our civil liberties.
For example, the Supreme Court has ruled that states may
legislate away a motorist's Sixth Amendment right to a
jury trial and his Fifth Amendment right against
self-incrimination. In 2002, the Supreme Court of
Wisconsin ruled that police officers could forcibly
extract blood from anyone suspected of drunk driving.
Other courts have ruled that prosecutors aren't obligated
to provide defendants with blood or breath test samples
for independent testing (even though both are feasible and
relatively cheap to do). In almost every other facet of
criminal law, defendants are given access to the evidence
These decisions haven't gone unnoticed in state
legislatures. Forty-one states now reserve the right to
revoke drunken driving defendants' licenses before they're
ever brought to trial. Thirty-seven states now impose
harsher penalties on motorists who refuse to take roadside
sobriety tests than on those who take them and fail.
Seventeen states have laws denying drunk driving
defendants the same opportunities to plea bargain given to
those accused of violent crimes.
Until recently, New York City cops could seize the cars of
first-offender drunk driving suspects upon arrest. Those
acquitted or otherwise cleared of charges were still
required to file civil suits to get their cars back, which
typically cost thousands of dollars. The city of Los
Angeles still seizes the cars of suspected first-time
drunk drivers, as well as the cars of those suspected of
drug activity and soliciting prostitutes.
Newer laws are even worse. As of last month, Washington
State now requires anyone arrested (not convicted --
arrested) for drunken driving to install an "ignition
interlock" device, which forces the driver to blow into a
breath test tube before starting the car, and at regular
intervals while driving. A second law mandates that juries
hear all drunken driving cases. It then instructs juries
to consider the evidence "in a light most favorable to the
prosecution," absurd evidentiary standard at odds with
everything the American criminal justice system is
supposed to stand for.
Even scarier are the laws that didn't pass, but will
inevitably be introduced again. New Mexico's state
legislature nearly passed a law that would mandate
ignition interlock devices on every car sold in the state
beginning in 2008, regardless of the buyer's driving
record. Drivers would have been required to pass a breath
test to start the car, then again every 10 minutes while
driving. Car computer systems would have kept records of
the tests, which would have been downloaded at service
centers and sent to law enforcement officials for
evaluation. New York considered a similar law.
That isn't to say we ought to ease up on drunken drivers.
But our laws should be grounded in sound science and the
presumption of innocence, not in hysteria. They should
target repeat offenders and severely impaired drunks, not
social drinkers who straddle the legal threshold. Though
the threat of drunken driving has significantly diminished
over the last 20 years, it's still routinely overstated by
anti-alcohol activists and lawmakers. Even if the threat
were as severe as it's often portrayed, casting aside
basic criminal protections and civil liberties is the
wrong way to address it.
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