DUI / DWI: Unintended consequences
Contributed by Edward N. Conter, III Esq. ([email protected]). Contributed articles do not necessarily reflect the viewpoint of the ÆGIS e-journal.
As an attorney, I have to make some disclaimers. First, for the international readership, my remarks pertain only to American law. Other nations use different legal systems and standards, and this article will be of interest to the international subscriber only as an indication of the laws in theUnited States. Secondly, for American readers, this article can only be an overview of the topic: The standard reference work on DUI law in theUnited States is four volumes and even this treatise has to be supplemented with other materials! Furthermore, there are significant differences in the application of the laws from state to state. In one state an individual was found guilty of drunk driving while riding a horse. In another state an individual was found guilty of DUI in an inoperable car.
Definitions and history
“Driving Under the Influence” (DUI) and “Driving While Intoxicated” (DWI) are now somewhat interchangeable terms. The current practice is to refer to all such charges as “DUI,” since driving under the influence of drugs has now been added to the list of crimes encompassed by these laws. The modern push for severe anti-drunk driving laws began in the 1960’s inEurope, where the initial scientific studies were conducted into the relationships between driving and drinking. In the 1980’s the United States began to adopt the European view, and to enact more severe laws pertaining to drunk driving. This in turn spawned special fields in the forensic sciences, and the practice of law, which deal almost exclusively with the issue of drunk driving. But in the growth of this specialty there has been a continued expansion of the direct and hidden penalties attached, while at the same time the application of the involved science has become a major legal issue.
Even if you are legally sober, once the police stop you for some infraction and smell the odor of alcohol on your breath, the odds are that you will be cited for DUI and then have to prove you innocence. Officers are trained to gather evidence for a possible court case from the moment they first come into contact with a suspect.
Additionally, the police want to avoid civil liability for “turning a drunk loose on the highways.” Therefore it is safer for the officer “ not to mention the public “ to arrest the suspect. Once the suspect is arrested, the case is turned over to a prosecutor, who is not paid for dismissing cases or losing them. In other words, from the moment the officer stops a suspect who has been drinking and driving, that suspect is headed for court, with all the expenses involved in a full defense.
Officers may stop vehicles for almost any reason: Safety, equipment violations, moving violations. But once the vehicle is stopped, the police may detain the driver and passengers for only so long as is justified by the initial reason for the stop, unless during that initial contact the officer develops reasonable suspicions for another offense.
Once the suspect is pulled over, the officer will approach and ask for license, registration, and proof of insurance. The driver has to produce these items, and while the driver is going through the wallet or glove compartment to find these items, the officer will be asking questions.
This is a form of test. The officer is evaluating the suspect’s performance in a “divided attention” situation. The officer is checking the suspect’s coordination and ability to perform two tasks simultaneously; the two tasks are answering the questions and looking for the paper work. If the suspect fumbles while looking for the documents, or gives confused answers to the questions, the officer will note this poor performance and report it as a possible sign of impairment.
Next the suspect will be told to get out of the vehicle. As the suspect gets out of his car the officer will note whether the suspect uses the car to maintain his balance, and whether he is steady on his feet.
At this point the officer usually begins asking questions about the suspect’s drinking, and whether there are any physical impairments that would prevent the suspect from performing the field sobriety tests. This is also the point at which the field sobriety tests are normally administered. Now, subject to some variations, the field sobriety tests are usually voluntary. However, failure to take them will usually result in an immediate arrest and the State’s using the refusal against the defendant in trial.
Should the individual elect to perform the field sobriety tests and then fail those tests (and the odds are that he will fail if the officer judges that they are appropriate to be administered at all), the individual will then be arrested, advised of his rights, and taken to a location to be given a breath or blood test.
If the defendant refuses to cooperate with this breath or blood test, then there are administrative penalties automatically imposed (usually the immediate suspension of the license for approximately one year); the police can then seek a warrant for a blood draw and use the defendant’s refusal as evidence in court against the defendant and also introduce the results of the blood draw. In other words, the accused can cooperate with the official test or face maximum penalties.
After the test the officer will normally ask the defendant all the questions that will allow the state to independently calculate the blood alcohol level without the use of the testing devices.
Three minor items:
1. Using European models, and based on their studies, it was determined that there was a small segment of the population that could still be considered sober at a 0.14 percent blood alcohol level, and we therefore set our laws to say that any reading of 0.15 or higher would automatically be considered as “impaired.” Over the years this standard was reduced first to a 0.10 percent and is now generally at 0.08 percent, although some states use 0.06 percent. In addition there are special standards for the operators of commercial vehicles (0.04 percent), aircraft and boats. The significant fact here is that although a given individual may in fact pass the field sobriety tests at a blood alcohol level higher than the mandated maximum, that individual can and will be found guilty of DUI on the simple basis of exceeding the statutory maximum level.
2. The police are now using a number of different types of hand held breath-testing devices. In most states at this time these hand held devices can only be used to verify the presence of alcohol and not the individual’s actual blood alcohol concentration. There is, however, a move afoot to make the readings obtained by these devices admissible in court.
3. A number of states are now mandating that persons convicted of DUI, as either a second offense or a first offense with a high reading, obtain an ignition interlock device that requires the vehicle operator to blow into the device to insure that the operator is not drunk.#
DUI has joined that list of crimes that have additional administrative penalties imposed on the accused by state agencies other than the court. As an example, a conviction for a domestic violence misdemeanor charge will also automatically revoke the right to own or use firearms, so security professionals may automatically lose their profession for a minor fight with their spouse. By the same token, a conviction for a misdemeanor drug charge can cost the accused the right to certain scholarship grants and to other forms of public assistance. These hidden consequences are seldom fully discussed when the accused is in court, and the accused first learns of them when, months after the conviction, he receives a notice in the mail that certain administrative actions have been taken against him because of that conviction. This same type of logic has carried over into the DUI field. The Supreme Court has ruled that a driver’s license is a privilege, not a right. With this reasoning in place, many states have transferred the imposition of penalties for DUI from the courts to the Motor Vehicle Department and other agencies. Thus, the court imposes a jail sentence, a fine, and mandates alcohol abuse screening and counseling, but it is the Motor Vehicle Department that actually suspends the license and re-instates that license in accordance with its own administrative rules and procedures. However, other agencies also use the “privilege” versus “right” logic following a person’s conviction for DUI, and therefore the following types of situations routinely arise:
• First, there is the increase in one’s collision and/or liability insurance (although this is variable depending on the insurance company and the individual’s driving record, the rule of thumb is a three-fold increase for a five year period.) However, in this context, where the individual is required to use a company vehicle in the scope of employment, the employer’s insurance costs are also increased.
• If the individual carries a commercial driver’s license and is found liable of DUI by the Motor Vehicle Department’s standards, even if found not guilty by the court, then the driver will lose his license for one year for the first offense and indefinitely for any subsequent offense. This is true even though the individuals were operating their private, non-commercial vehicles at the time the offense was committed.
• If the individual has a pilot’s license, he must report any DUI arrest when renewing his pilot’s license. Failure to do so will result in suspension of the license. In the past, the first conviction of DUI would have no result. A second offense would result in administrative review to determine whether or not the pilot needed treatment or counseling, and possibly a one-year suspension for private pilots and a six-month suspension for commercial pilots.
• In a more local context, school teachers and day care workers in the author’s home state of Arizona are required to have a security check conducted by the state, and an appropriate certificate issued in order for them to maintain their employment. When the State’s computer runs its next cyclical check of its computer records, and the conviction for DUI appears in the records of a person subject to the security check requirements, the individual’s certificate or license is suspended pending review. The review process currently takes about one year from the date of suspension.
It should be obvious that the individual employee being found liable for a DUI, either by a court or an administrative agency, can affect any professional office requires employees to be licensed or registered by the state. Furthermore, even where driving or individual fitness for the license or registration is not an immediate issue, it can reasonably be expected that any convictions for DUI will be grist for an administrative agency’s mill in any subsequent context.
As a matter of economics as well as morality, do not drink and drive! The DUI laws have grown over the years to become something more than just another traffic ticket, and the anti-DUI lobby has made a highly successful marriage with the National Highway Safety and Traffic Safety Administration to impose strict standards on the consumption of alcohol in almost every scenario in which a mode of transportation can be operated. This, in combination with seat belt use and several other factors, has substantially reduced automobile deaths.