Has this question ever been asked in court? How can I reasonably know if I am violating a .08 BAC limit? Can a reasonable person, even with a breathalyzer in hand, know if he/she is .079 or .80?
I know, don’t drink and drive! But I’m asking from a pure fairness standpoint. If the law is going to say “.08 and you are breaking the law” doesn’t the “reasonable man” standard dictate that there has to be a bright-line method that a person can say “Yes, I can legally drive now” or “No, I’ve had too much and I can’t”
True story:
A few years ago a family member got into an argument with his girlfriend and the neighbors called police. He had been drinking and he called me before the cops got to his house. I drove over to see if I could help.
Anyways, no harm no foul. Nobody was going to jail, but they asked my family member to leave the house for the sake of the peace. I said that he could stay at my home.
Now, he had been drinking, so I wanted to make sure that he was legal to drive. If he didn’t drive, I would have to get up early the next morning to bring him back to get his car. He told me that he was okay to drive (everyone thinks so), so since there were four police officers there, I asked them, “Is he legal to drive his vehicle to my house?”
They stuttered and stammered and said he smelled like booze and that it probably wasn’t a good idea. I thanked them for their concern, but I said that it meant me having to get up an hour and a half early the next day and all I wanted to know was if he would be committing a crime if he drove.
None of them could/would answer. Here we have four highly trained officers of the law that can’t tell whether a person is legally drunk; what chance does a regular person have? Isn’t this unconstitutional?
The crime of DUI is not magically extant when the crossover from 0.079% to 0.08% is reached. The gravamen of DUI is the operation of a motor vehicle while impaired by intoxication. It’s perfectly possible to be guilty of DUI with a 0.06% BAC.
The law provides that with a BAC of 0.08%, the finder of fact may conclusively presume impairment. In other words, once you’ve reached that level of alcohol content in your blood, we can safely assume that you’re impaired under the law. That’s not to say that lower levels of alcohol cannot be impairing.
So there’s nothing unconstitutionally vague about the law. It provides a fair notice of the conduct that is prohibited: driving while impaired by intoxication.
My position (I’m not a lawyer) is that I keep within the law by being reasonable.
If offered cheap software on the street, I avoid software piracy by declining.
If in charge of a potentially lethal weapon, I avoid manslaughter by being extremely careful.
In your example, I would have given your friend the number of a taxi firm.
That way he doesn’t drive whilst having drunk some booze and just had a furious argument.
And I don’t have to get up early.
Fair enough. So how does a reasonable man know when he is intoxicated to a certainty that he isn’t violating the law? Again, 4 trained officers who enforce this law couldn’t give me a definitive answer.
A reasonable man does not know unless he has not consumed any alcohol prior to operating a motor vehicle. That’s the sword that hangs over everybody who chooses to have a drink and then drive.
There are reasonable approximations for BAC estimation (the old “one drink per hour” metabolic rate), but it is at the discretion of the officer whether or not the person in question is intoxicated or not unless the legal threshold is exceeded, in which case it’s no longer legally in question.
Right, but it is not a crime to consume alcohol and then drive, so it still seems unreasonable to set an undefined limit.
Bricker, is the .08 limit a rebuttable presumption? In other words, could I put on a defense that, “Yes, I had a .09 BAC, but here is the testimony of a bus load of nuns who say that I was perfectly sober.”?
Also, BAC is not a static number. It can increase or decrease over time. I can have a .05 BAC, down two shots, and feeling fine a few minutes later with a BAC of .06, go home. Only problem is that as your body continues to process the alcohol, your BAC will rise. You could conceivably take a breathalizer when departing a location, and 30 minutes later fail a breathalizer.
That’s often an argument put forth by the defense in DUI cases. “Sure Judge, at the hospital he tested a .25, but when he was driving, our math shows that he may have actually been at .07.”
Bricker, this isn’t your area of law and your opinion is out of date by 20 some years. Nowadays, DUI offenses are typically EITHER driving while impaired by intoxication (here in Ohio codified in in RC 4511.19(A)(1)(a)) OR driving with a blood alcohol level over the prescribed amount, regardless of whether one is impaired or not (Ohio RC 4511.19(A)(1)(b)).
Not quite. Four trained officers didn’t want to risk incurring liability by saying, “He should be OK,” and then having your friend get into a car accident; they didn’t want to say “He’s too drunk to drive,” without having performed any field sobriety or breath tests. So they temporized and said it wasn’t a good idea.
You’re asking about a certainty he isn’t violating the law? A reasonable person errs on the side of caution and doesn’t get behind the wheel if feels the slightest effects from alcohol, or if he’s had more than his body weight can handle without crossing the line into “impaired,” even if he doesn’t feel impaired. Charts like this one are ubiquitous and serve as a useful guide.
Yes, following these guidelines may mean you don’t drive with a BAC of 0.04%, even though you may be perfectly legally entitled to. This incursion on your personal liberty is one I don’t lose any sleep over.
“Impaired” is the limit, and is not so vague as to be unconstitutional.
“A statute that prohibits driving while the ability to operate a vehicle is impaired by consumption of alcohol, and prohibits driving while in an intoxicated condition, is not unconstitutionally vague. The prohibition against driving while impaired is not a vague and inadequate concept, and the term “driving while intoxicated” is a familiar concept, intelligible to the average person.”
“With respect to impairment the defendant urges that it is not clear whether the statute prohibits driving when the driver is extremely impaired, only moderately impaired, or even impaired to a slight degree and whether an objective or a subjective standard applies. On its face, however, the statute does not speak of degrees of impairment; it simply prohibits the driving of a motor vehicle when the driver’s “ability to operate such vehicle is impaired” (Vehicle and Traffic Law, s 1192, subd. 1). Thus driving a motor vehicle while there is any alcoholic impairment of the driver’s “ability to operate such vehicle” would constitute a violation.” People v. Cruz, 48 N.Y.2d 419, 423 N.Y.S.2d 625, 399 N.E.2d 513 (1979).
I’m sure it depends on the statute involved, but in most cases, there are two different sections, one dealing with driving under the influence or while impaired and one driving with a .08 or above BAC. In most prosecutions with a blood/breathe/urine test, the driver will be charged with both sections.
So if your bus load of nuns comes up and testify “jtgain was not impaired in the least” you may defeat the DWI charge, but you’d still be violating the .08 charge. The .08 charge does not necessarily require proof of impairment.
I understand. However, how is this different from any other law that is struck as being void for vagueness? Surely in each of those laws one could be extra, extra cautious as to not violate the law.
I hope this isn’t too much of a hijack, but what if I’m impaired by something else? For example, last night I had one hell of a migraine. Cold sweats, tunnel vision, seeing sparklies, etc. Say something came up and I had to drive somewhere. Were I to be pulled over, would or could that be considered driving while impaired? It’s obviously not under the influence - the only meds I took were non-narcotic beta blockers and ibuprofen. Still, I would have had a heck of a time holding a straight line etc.
Because “impaired” is not vague. The meaning of the charge is readily ascertainable by the average person. “In sum the prohibition against driving while the ability to do so is impaired by alcohol (Vehicle and Traffic Law, s 1192, subd. 1) is not a vague and indefinite concept as the defendant contends. It is evident from the statutory language and scheme that the question in each case is whether, by voluntarily consuming alcohol, this particular defendant has actually impaired, to any extent, the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver.”
Surely that can’t be right. “To any extent” If I drink a mouthful of beer, then surely I am impaired to a minute degree.
And if it is so “readily ascertainable” then why couldn’t I, my friend, or 4 officers make that determination? Bricker contends that they wouldn’t want to be legally liable, but this cite you provide seems to think that it should be so “readily ascertainable” to an average person, let alone 4 trained officers.
Other laws suffer from no such vagueness:
“Officer, may I discard my fast food wrapper on the side of the highway?”
“No, you may not.”
“Officer, may I strike my wife with a tire iron because dinner was served cold?”
“No, you may not.”
The officer doesn’t feel the need to refrain from giving advice because such a law is clearly defined as to what may or may not be done.
I still contend that there is no way that an average person can say whether or not he will violate this law without taking an extraordinary measure of drinking absolutely nothing; a step that should not be required.
No, you aren’t impaired if you have a sip of beer.
This is how law works - there is a question of fact in this situation, namely “were you impaired”. It’s up to the finder of fact to make that determination that you were impaired beyond a reasonable doubt
Apart from strict liability criminal offenses - like driving above the speed limit - there is always going to be some a priori vaugeness when someone commits an act that may or may not be criminal. such vaugeness does not rise to the level of unconstitutionality.
take another example. assault. usually in order to be convicted of that crime, you have to place another in reasonable apprehension of imminent bodily harm. there is no way you can adduce with specificity each and every act what would or wouldn’t cause a mythical “normal” person “reasonable” apprehension. so you’re always going to be hanging out in the wind, flapping with doubt after you commit the action -
but at that point you know you did something - you’re just griping about whether the thing you know you did was criminal or not. if you know that you did something, then you’re already halfway past the “i did a criminal act” part. whether you face criminal liability at that point isn’t really up to you anymore.
Thank you for linking this! It’s unfortunate that so few people will take a stand against MADD, but it is understandable; who is going to start the People For Drunk Driving coalition? I certainly don’t want to be a member, but I would like to start the Hey, MADD, You Don’t Get To Create DUI Laws Anymore, Because You People Don’t Give Two Shits About Protecting People From Impaired Drivers - You’re a Bunch of Goddamned Neo-Prohibitionists! brigade. I gotta work on a better acronym, though.