Drunk Driving: A Commentary on the Draconian State of DWI/DUI Laws

WRITTEN BY CHARLES WELCOME, J.D. CANDIDATE 2014
EDITED BY EMILY HENDEL, J.D. CANDIDATE 2013
EDITED BY A. ADAM MEHRFAR, ESQ.

The information contained herein is for informational purposes only as a service to the public, and may or may not reflect the most current legal developments; accordingly, information on this Article is not promised or guaranteed to be correct or complete,. The Law Office of A. Adam Mehrfar expressly disclaims all liability in respect to actions taken or not taken based on any or all the contents of this Article.

Drunk Driving: A Commentary on the Draconian State of the Law

I. Introduction

There is no doubt that drunk driving presents a serious problem on the roads of the United States. For the last three decades, various groups and governmental agencies have compiled statistics on drunk driving and fatalities involving alcohol-impaired drivers, and have tried to use this information to sculpt laws that effectively deter people from driving drunk. While such an undertaking may be aptly described as noble, the results that have been achieved are excessive and oppressive to a majority of American drivers.

It is a trait of human psychology that people are overly influenced by events that are out of the ordinary and have a disproportionate impact on their lives, while at the same time largely ignoring the more mundane events that are much more likely to occur on a day-to-day basis. For this reason, there are strong reactions to events such as plane crashes, shootings, and drunk driving fatalities. It seems that every time a drunk driver kills a child, a new law is pushed through state legislatures bearing her name. While a child being killed is horrible, whether they were killed by drunk drivers or otherwise, it is important that before enacting reactionary legislation, we examine the practical results of harsh DWI laws. When soberly analyzing the facts of bright-line DWI legislation and tactics, it becomes clear that this strategy that has become ubiquitous in the United States does not work.

II. Realities of DWI Legislation

The law’s treatment of DWI has gone from one extreme to the next. Originally the legal limit of BAC while driving was 0.15%; now, after some time when the limit was 0.1%, it is 0.08%. Although 0.15 is much too high, the present treatment of the issue by the law is much too severe. 0.08 is a level of BAC that is tough to gauge for a normal person; practically, the law is putting the limit at such a level as to force people to guess as to whether or not they are over the limit. If a person goes out to dinner with friends or family and ends up having a few drinks, he may feel perfectly fine and in control. However, alcohol affects everyone differently and if that person happens to encounter a police checkpoint, he may find that he was over the legal limit. When this happens, the law throws the book at the driver. The individual is forced to at least pay a hefty fine, if not spend time in jail. Additionally, he must install and maintain an ignition interlock device in all of the cars he owns or operates for a period of at least six months. It makes no difference that the individual was not driving recklessly, was obeying all traffic laws, and was putting no one in danger when he was stopped. Furthermore, the laws have changed with regard to people with less than .08% BAC. In New York, a person driving with a BAC between .04-.07% is guilty of Driving While Ability Impaired. DWAI is a lesser offense, but it is still quite expensive to deal with, and is accompanied by a fine, possible jail time, and the stigma that goes along with such an arrest on one’s record.

Proponents of Draconian DWI laws argue that it is necessary to punish everyone who drives drunk so as to deter people from doing it in the first place, no matter if it is actually endangering anyone’s safety or not (it is the opinion of such persons that, when driving after consuming alcohol, one is endangering others, no matter what; however, such an opinion is unfounded in reality, as discussed, infra). Deterrence is undoubtedly a necessary component of DWI law. However, we must ask ourselves: what, exactly, is it we are trying to deter? If we are trying to deter everyone from getting behind the wheel after consuming any alcohol, then such Draconian measures make a bit of sense. However, if that is the goal, other factors must be taken into account when deciding if it is indeed a worthy goal to have.

The United States is a driving country. The federal government made a concerted effort to connect the country by highways and roads of all sorts, leaving the railway system by the wayside. Even in large cities, such as Los Angeles, governments decided to scrap very efficient public transportation systems and replace them with complex systems of roadways. The plans worked to a “T,” and now cars and roads, especially outside of large cities, dominate transportation in the United States. Cars are essential to the “American way of life” that is found in the vast majority of this country. When people go somewhere, they drive. When they visit friends for dinner parties, they drive. When they go to restaurants, they drive. When they go to baseball games, they drive. The list goes on- any typically American social activity that one participates in outside of the home, Americans get there is by driving. According to the U.S. Department of Transportation Federal Highway Administration (FHA), in 2011, Americans drove 2,930,628,000,000 miles. This is an increase from 1,120,328,000,000 miles in 1970, the first year of record keeping. Americans drive a lot, and they drive more and more every year.

The United States is also a drinking country. People in the United States consume alcohol on a regular basis, be it at home, at bars, at restaurants, at ballgames or at other peoples’ homes. Alcohol consumption is, for better or worse, the cornerstone of America’s social fabric. If the goal were to deter every American from getting behind the wheel after consuming alcohol, the result of this would be to undermine a large portion of social interactions, as well as a large portion of the basis of the American economy. Without people buying alcohol in restaurants, at ballgames or for dinner parties, significantly less people would endeavor to participate in those activities. Restaurants would go out of business, sports teams would lose money and end up folding, and people would stop forming the types of friendships that have become commonplace in the United States today. While the goal of ridding American roads of drivers with alcohol in their bloodstreams would be greatly furthered, the ancillary negative effects would be devastating.

Thus, a better approach would be to deter the worst types of drunk drivers: the ones who drive recklessly, endanger the lives of themselves and others, and cause accidents, fatal and otherwise. People who drive at high speeds and ignore traffic laws while driving after drinking are the people whose behavior needs to be curbed. Although it is predominantly the reckless drivers that cause accidents and fatalities, everyone who happens to have had a few drinks before driving runs the risk of being punished for the actions of a small, yet dangerous, minority.

Drivers with a high BAC disproportionately cause fatalities. In New York in 2010, of the 1200 driving fatalities, 768 (64%) involved drivers with a BAC of .00. Of the 432 fatalities involving drivers who had consumed alcohol, 234 (19%) involved drivers with a BAC of .15 or above. Only 64 (5%) involved drivers with BAC of .01-.07, and 130 (11%) involved drivers with BAC of .08-.15. So, of fatalities involving drivers with BAC of .01 or above, 54% involved drivers with BAC of .15 or above. The results are even more skewed on a national level: 58% of drivers involved in fatal crashes where alcohol was involved had a BAC of .15 or higher. These numbers convey that drivers driving with a minimum BAC of nearly double the legal limit are involved in the majority of alcohol-related driving fatalities. In fact, the average BAC of a drunk driver in a fatal crash is 0.19%, according to the American Beverage Institute.

The Center for Disease Control (CDC) has conducted research on drunk driving in the United States. They admit that their results are most likely underestimated, as several limitations of their research resulted in numbers that do not include all categories of people, such as people who are under 18 years old, people without landlines, and the people who did not feel comfortable reporting their drunk-driving history because of the social stigma. Nonetheless, the CDC found that there were an estimated 112 million episodes of drunk driving in 2010, the latest year that the results are available for. According to the U.S. Department of Transportation National Highway Traffic Safety Administration (NHTSA), there were 10,228 fatalities caused by drunk drivers for that year. This comes out to a fatality 0.009% of the time someone in the United States drives drunk, or, in other words, the likelihood of a fatality occurring is nine out of every 100,000 drunk driving incidents. Reversed, there is a 99.991% chance a fatality will not occur for any given drunk driving incident. And this, according to the CDC, is an overestimate of the frequency.

The CDC reports that there has been a 30% decrease in the self-reported incidences of drunk driving since 2006. However, it does not attribute this downturn to the harsher laws enacted by states in that time. Instead, it looks to the economic downturn as the reason for less discretionary driving, as well as a move by drinkers to drinking locations where driving is not necessary, such as their homes. By this logic, if and when the economy enters into a recovery, people who have had to cut back on discretionary spending such as for gasoline to go to bars and for the more expensive option of buying alcohol at restaurants and bars, will begin engaging in those behaviors again, regardless of any Draconian measures put in place to convince them otherwise.

This view is reinforced by the fact that, according to Mothers Against Drunk Driving (MADD), the average drunk driver drives drunk 80 times before he is arrested. This statistic leads to the conclusions that 1) people do not think they will get caught when driving drunk; 2) they are usually right; and 3) it is not so imperative that we eliminate all drunk driving as MADD would like us to think it is. If the statistic is accurate, and the average drunk driver drives 80 times without incident before being caught, that means such drunk drivers only have had a problem driving 1.2% of the time, and this is not even factoring in those who were arrested at checkpoints rather than for driving erratically or having an accident.

Proponents of the harsh measures may point to the NHTSA report that drunk driving fatalities declined by 20% in the years 2006-2009 as proof of the effectiveness of such a strategy. However, the NHTSA notes in that same report that the proportion of drunk-driving fatalities to all driving fatalities remained constant, at about one in three, during that same period. This is because non-alcohol-impaired driving fatalities declined by the same rate. These facts suggest that the nation’s roads have become safer, not as a result of heavy-handed DWI legislation, but rather for some other reason.

Indeed, when one delves deeper into the drunk-driving fatality statistics, the answer becomes apparent. The drop in fatalities is unquestionably due to driving legislation, just not the kind that MADD and other crusaders would have hoped: namely, seatbelt legislation. In 2009, two-thirds of the people killed in alcohol-impaired driving accidents were the drunk drivers themselves. Of these two-thirds, 72% were not wearing seatbelts. As for the other people who died in these accidents, 81% were not wearing seatbelts. In total, 8,126 out 10,839 people who died in alcohol-impaired driving accidents in 2009 were not wearing seatbelts.

The conclusion is clear: drunk-driving laws that indiscriminately punish anyone who violates the BAC limit do not work. They do not deter people from drunk driving, they do not reduce the risk of being killed in a car accident due to a drunk driver, and they ruin people’s lives that otherwise were doing nothing wrong. This course of action is politically popular because it can give the appearance of protecting the public and stopping drunk driving, but as the CDC and NHTSA reports prove, there is no causal link; the results either do not suggest that those goals are being accomplished, or they occur because of other factors.
III. Ignition Interlock Devices

In recent years, extremely harsh penalties have been adopted in almost every state for any violation of the law concerning drinking and driving. By 2010, all 50 states, Washington, D.C. and Puerto Rico had all passed laws that made it illegal per se to drive with a Blood Alcohol Content (BAC) of 0.08 or higher. Additionally, New York, along with 37 other states, instituted a penalty requiring certain drivers to install and maintain an Ignition Interlock Device. An Ignition Interlock Device is a device that is installed in a person’s car that requires a person to take a Breathalyzer test before it will allow the car the start. This must be installed in every automobile they own or operate for a specified, court-ordered amount of time. In New York, any person convicted of DWI must install and maintain an Ignition Interlock Device for a period of at least six months.

IIDs are extraordinarily burdensome on drivers. First, drivers must bear the cost of installing and maintaining the Ignition Interlock Device. While this may seem fair, the device must be taken in for maintenance within the first 30 days after installation, and then, if there are no problems with it, within every 60 days after that. Also, it must be taken to a state-approved service provider, which may be as far as 50 miles from the driver’s residence or parking place. It is an unbearable burden for someone who is busy with work and family to drive up to 100 miles for a court-ordered service of such a device. After considering all of this, it does not seem like a fair price to pay just for encountering a police checkpoint.

Additionally, IIDs do not merely require drivers to blow into them to start the vehicle, the driver must then submit to additional “rolling” tests within a randomly variable interval ranging from 5-15 minutes. After this initial rolling test, the driver will then have subsequent rolling tests at random intervals not to exceed 30 minutes, for the duration of the travel. Such requirements are dangerous. Imagine having to lean over while driving, visually locate a small tube, place the tube in your mouth and blow into it for an extended period just to make sure that you haven’t begun drinking after you have started the car. This is an especially egregious risk for drivers on highways.

Certainly, there are drawbacks and problems with IIDs and the system in place, but that is not to say they should not exist. There is a need for IIDs, just as there is a need for other harsh penalties for certain DWI offenders. However, there is no need to so severely punish every person who violates the DWI law.

IV. DWI Checkpoints

In recent years there has been a concerted effort to increase the amount of DWI checkpoints in lieu of what the police call saturation. Saturation is the tactic of deploying a lot of police car patrols in high drunk-driving areas in an effort to catch people in the act of drunk driving. The FBI has reported that “typically, sobriety checkpoints do not yield a large volume of DUI arrests.” Additionally, the NHTSA has commented that “[i]t was thought that the increased media and enforcement program would be associated with an increase in awareness of the enforcement program, a reduction in driving after drinking behavior, as well as an increase in the perception of being stopped by the police for an alcohol offense and arrested if over the limit. Such changes in awareness, perceptions, and self-reported behavior did not occur.” While the NHTSA has admitted that the secondary effects they had hoped that DWI checkpoints would inspire have not come to fruition, the primary goal of making DUI arrests has fared even worse. The Arizona Daily Star reported that between 2005 and 2007, of the more than 46,000 drivers that were stopped, less than 1% were arrested, and of those less than half were convicted.

The cost of a DUI checkpoint is estimated to be anywhere from $8,800 (low-end law enforcement estimate) to $12,000 (American Civil Liberties Union estimate). Since multiple organizations have admitted that this tactic is ineffective, this is an exorbitant cost. However, state and local governments don’t mind spending the money because the taxpayers foot the bill. That is to say, the vast majority of DUI checkpoints are funded by federal grant money. For example, in California, 99.5% of the expense of DUI checkpoints is federally funded.

Because the money does not come out of the regular police budget, many police departments assign more police officers to work the checkpoints than is necessary. Although MADD estimates that checkpoints require no more than four to five officers to run effectively, that is far from the practical reality. The Investigative Reporting Program at UC Berkeley reported in 2010 that nearly 50 local police and sheriff’s departments averaged at least 20 officers per checkpoint. These operations averaged three DUI arrests per night. The California Office of Traffic Safety (OTS) indicates that the average deployment of officers at checkpoints statewide is 18 officers. The LAPD averages 35 officers per checkpoint and the Federal Traffic Safety Agency requires a minimum of six officers. All officers working checkpoints get paid overtime, which is one and one half times their regular wage. According to the Berkeley report, officer overtime accounts for over 90% of the cost of checkpoints. Essentially, the U.S. taxpayers are paying overtime wages for police to conduct minimally effective DUI prevention.

Not only is this subsidization of an ineffective program troubling, but also local law enforcement seems to be using DUI checkpoints as a way to raise money for struggling cities. According to Ryan Gabrielson, of the University of California at Berkeley Investigative Reporting Program, checkpoint impounds generated an estimated $40 million in towing fees and police fines in California in 2009. Local governments often make lucrative deals with the private towing companies to split such profits. These programs are funded almost exclusively with federal money but they have become cash cows for the Local and State governments. Ironically, the vast majority of citations and vehicle seizures at DUI checkpoints are for driving without a license, not drunk driving.

It is clear that the purpose of DUI checkpoints is not to curtail drunk driving. The federal government gives the California OTS $100 million dollars a year, of which $30 million is spent on checkpoints. The money is conditioned on the checkpoints being put in place. That means that the federal government pays $70 million per year in California for $30 million worth of checkpoints. This is an exorbitant amount by any stretch of the imagination. While we cannot really fault the state and local governments for accepting the conditions of the federal funding, it is exceedingly troubling that police departments are now basing their policies on fundraising rather than protecting the public by upholding the law. Since Michigan Dept. of State Police v. Sitz., 496 U.S. 444 (1990), the federal government has been expanding checkpoint policies in any state that refuses to ban them.

In Sitz, the court ruled that the public policy considerations of preventing drunk driving outweighed the importance of upholding the Fourth Amendment of the United States Constitution. While this reasoning is suspect at best, and it is based on the fiction that DUI checkpoints serve the public policy of preventing drunk driving, it has been responsible for this facet of federal interference in the lives of law-abiding citizens. Sergeant Chris Jacobson, in charge of DUI checkpoints for the police department of Lodi, California, said, “[w]e are aware that saturation patrols are much more effective for arresting DUIs.” However, the “California Office of Traffic Safety wants that contact with drivers….” The California OTS is, of course, taking its cues from the federal government.

Checkpoints are “a public relations campaign,” according to Sergeant Scott Elliott, Colorado State Patrol, in essence to condition the public to become accustomed to police stops. The Transportation Security Administration has announced that it will conduct “security assessments” on highways. They tested this program last year by setting up checkpoints on interstates in Tennessee. The spin campaign has been in full effect for 20 years. During that time, the public has been told repeatedly how effective checkpoints are, and constantly reminded of their popularity. In almost every pro-checkpoint article or interview, there is a reference to how much support checkpoints enjoy from the public at large. In sum, the federal government is using the money it takes from taxpayers every year to fund operations that have little value in accomplishing the goal of making roads safer from drunk drivers. The real purpose is to strip us of our Constitutional rights, all while spreading falsities about the effects of the program and telling the people how much they like it. As Supreme Court Justice Clarence Thomas said, “[i]ndeed, I rather doubt that the Framers of the Fourth Amendment would have considered ‘reasonable’ a program of indiscriminate stops of individuals not suspected of wrongdoing.”

V. Conclusion

Drunk driving is a serious problem on the roads of the United States. Thousands of preventable deaths occur every year due to people driving while drunk. However, the federal government, special interest groups and the media have used this problem to pursue policies that are detrimental to the public at large. Special interest groups like MADD have successfully created an atmosphere of fear around the issue, which has brought about extraordinarily harsh penalties that can cost thousands of dollars and significant amounts of time. These penalties are combined with checkpoints that serve two detrimental purposes: first, they tend to skew arrests toward drivers that are not driving recklessly or endangering anyone, and second, they further a curtailment of constitutional rights.
Instead of pouring resources into drunk driving checkpoints, which skew arrests toward people who really shouldn’t be arrested, police should devote more time and money to patrolling the roads and finding the people who drive recklessly and endanger the public. Punishing people who drive recklessly with harsh penalties is worthwhile. According to the Century Council, 81% of people who were arrested for drunk driving said that harsher penalties would stop them from driving drunk again. Thus, harsh penalties are effective in deterring repeat offenders.

Not only are harsh penalties effective in deterring repeat offenders from driving drunk again, they are also effective in keeping people who deserve the penalties off the street. If someone is arrested for drunkenly driving, as opposed to merely being legally drunk while driving, that person should be kept from repeating this behavior. In such cases, Ignition Interlock Devices, jail time, license suspension/revocation, and large fines are completely warranted. The people who egregiously endanger themselves, others and property are not in the same category as the average person driving home after a few drinks with friends and family. The former category needs to be punished, and their criminal record should reflect the fact that they were a danger to society, while the latter should not.

Devoting police resources to patrolling the streets rather than checking cars at checkpoints speaks precisely to this issue. People who are not driving recklessly should not be pulled over or arrested, while people who are driving recklessly and putting lives in jeopardy and breaking the law should. Harsh punishments should not be employed until after these people have been singled out and arrested.

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