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 His driver's license had been
revoked.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 Fourth Amendment.
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 against them.
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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