Disturbing the peace? Reckless driving? Conspiracy?
From the OP:
What “reasonable man” standard are you talking about? DUI is a crime, and while there is sorta-kinda a “reasonable man standard” for most most torts, there is no such standard for crimes. There are many crimes that, according to explicit statutory provision, be committed by a reasonable man. For example, many states have a provision in their statutory rape law stating that it is not a defense that a reasonable person would have believed the victim was over 18.
In my current state, Pennsylvania, the law is vehicle code § 3802, entitled Driving under influence of alcohol or controlled substance.
Va. Code § 33.1-346: A. It shall be unlawful for any person to dump or otherwise dispose of trash, garbage, refuse, litter, a companion animal for the purpose of disposal, or other unsightly matter, on public property, including a public highway, right-of-way, property adjacent to such highway or right-of-way, or on private property without the written consent of the owner thereof or his agent.
“But officer, this fast food wrapper isn’t trash, garbage, refuse, or litter. It’s biodegradable, so technically it will just disintegrate into natural materials. And it’s not unsightly, it’s pretty and brightly colored! That law sounds vague to me.”
First page of Yahoo search results for “unconstitutional vague”
http://www.firstamendmentcenter.org/news.aspx?id=19428
Since this involves the Patriot Act, they didn’t think about its implicated actions elsewhere.
So given the above quote, how was my family friend faced with a statute that was “sufficiently clear” to put him on notice that his “contemplated conduct” (driving) was unlawful? Remember, 4 trained officers, me and him could not make that determination.
And, again, if the officers wouldn’t answer for fear of legal reprisals, then it isn’t “sufficiently” clear, is it? Common sense would dictate that if the answer were “sufficiently clear” then nobody would have a second’s pause about answering that question.
While you could make that argument, and lose, in court, I think that any reasonable person would know that throwing a fast food wrapper on the highway is littering. Also if a cop pulls you over, opens the door, and liquor bottles cascade onto the roadway while you fall out and vomit on the officer’s shoes, a reasonable person would believe that the driver was intoxicated.
It is the recent, .08, slightly impaired type of judgments that I feel are impossible to make.
The contemplated conduct is not driving. it’s driving after having ingested an intoxicating substance. so you’re pretty much automatically on notice that you are potentially violating a law from the first sip. the fact that you’re thinking about how much you can drink and get home without getting busted is prima facie evidence that the staute isn’t vauge. at all.
Perhaps you ought to understand that point clearly. You seem to think that it’s “okay” from a legal and societal standpoint to drive after having consumed alcohol. it’s not - and that’s the contemplated conduct that is being proscribed.
But it is okay to drive after having consumed alcohol (otherwise, only people who never drink alcohol would be allowed to drive). It is not okay to drive while impaired. The question boils down to, “How can we determione how impared someone is?”
No that’s not the question when you’re attacking something for being unconstitutionally vague. when you drink a beer at a bar, you (hopefully) are contemplating how your drinking will impair your abiltiy to operate a motor vehicle. at that point, you now know that there is an issue as to the legality of your two actions.
voiding for vagueness goes to the nature of the prohibited conduct, not the degree of the prohibited conduct.
it is not vague when you sit and ask yourself “have i drunk too much that my driving will be impaired.” you know exactly what the prohibited act is - the fact that you have incorrectly calculated the degree of your (objective) impairment does not make it vague.
a statute is vauge if it is a crime to “do balfrinmaslkj”. no reasonable person knows what the fuck “balfrinmaslkj” is, so you can’t know how to tailor your actions to comply with the law.
everyone knows that it is not lawful to ingest alcohol so that your driving is impaired. the mere fact that you’re asking about it is highly suggestive of the fact that it is not vague.
Do you dispute Bricker’s analysis of the situation? It sounds very plausible to me - the officers could have answers, but chose not to. If you would have had to drive only five minutes out of your way to drive him home, would there have even been a question about letting him drive?
The other thing - having a criterion that involves self-assessment of the state of impairment doesn’t work at all well in this case, because the reason DUI is illegal is that alcohol affects the judgment.
Look, would you stop with the four trained officers things? If my next door neighbor is an IRS agent, and he’s having a backyard barbeque for his office, I might show up up and ask the gathering, “Hey, can I depreciate non-taxable income borught forth in a previous tax year?”
If I’m you, the next day I’ll be crowing about how income tax is unconstitutional because “six trained IRS agents, including a division director” were unable to answer my question.
There are plenty of reasons they may have chosen not to answer. None of them mean that as a matter of law, they cannot discern probable cause to believe an individual is impaired and none of the reasons mean that the law is vague.
In fact, that example gives me an idea. This objection should be dealt with like a tax protester objection: the laws are not unconstitutional because no court has so ruled, and no court WILL so rule. Since the courts determine what laws are constitutional, that settles it.
jtgain, I am not sure what you are asking for here. I think it would be physically impossible to define a specific number as the only factor in determining DUI. Everyone is physically different.
If someone is so intolerant of alcohol that one beer makes them swerve all over the road and into oncoming traffic that should be considered a DUI. But there is no fixed limit that can catch that situation unless it is hugely draconian (if you have had ANY alcohol or prescription drugs in the last 24 hours you can’t drive, for example).
The law has to use terminology like “impaired” rather than relying solely on fixed numbers to be of any use at all in the real world.
How about DAMM: Drunks against Mad Mothers. 
That doesn’t seem to be borne out by the statutes cited by zamboniracer. Ohio RC4511.19(A)(1)(a) & (b) create two separate offences:
(a) is an impairment offence. Presumably, it’s a defence to the charge to try to argue that your ability to drive was not impaired.
(b) is an offence of driving with a blood alcohol over .08. Impairment is not an element of the offence, and there’s nothing about a presumption, conclusive or rebuttable. It just looks like a straightforward prohibition of driving with a certain blood alcohol level.
The Criminal Code of Canada is the same - two separate offences, with impairment as an element of one offence, but not an element of the offence of .08. See s. 253:
Precisely. More importantly, the notion of conclusive presumptions is a historical mistake in legal terminology that should and is being expunged. There is no defensible analytical distinction between a conclusive presumption and a rule of law. If you cannot rebut a conclusive presumption stemming from some conduct, then it is simply unlawful to engage in that conduct.
In the case of DUI laws, the problem is not void for vagueness. The law is anything but vague. It is in fact very rare to have such a specific elucidation of the prohibited conduct. Under void for vagueness, we ask whether a legally omniscient person could know what conduct the statute prohibits. In this case, the answer is a resounding yes.
Instead, the problem in the DUI context is that an individual may not even be aware of the fact that he engaging in the proscribed conduct. That presents a different kind of problem: criminal strict liability. Strict liability is when conduct is prohibited with no requirement of any particular knowledge or intention on the part of the actor. It is often the case that conduct is proscribed even though the actor may have no idea that he is engaging in that conduct. Some DUI laws are strict liability laws. See Leocal v. Ashcroft, 543 U.S. 1 (2004).
The key to criminal strict liability being constitutional is that it is possible for an individual to take reasonable measures to avoid being in violation and that the level of penalty be set relatively low. The first issue isn’t a problem in the case of DUI, since the worst that is required is that a person not drink any alcohol in a reasonable period before driving (and in some states, after driving). [Though I suppose one could argue that the legislatures have pulled a bait-and-switch: they’ve actually prohibited drinking at all before driving without claiming to have done so. But since they probably would have constitutional grounds to pass even that more restrictive law, that is more a political critique than a legal one.]
But the second issue is a genuine constitutional problem with DUI laws. The few courts to have addressed this question seem to read some element of knowledge of impairment into the statute even where the plain language indicates that such knowledge was not required. Or they have found that because the actor necessarily knows he is engaging in some of the conduct (operation of a vehicle), it is not a strict liability offense. Both approaches are pretty questionable, I think, but I’m not aware of countervailing precedent. I do know some of the states like Arizona have amended their laws for fear that they would be found unconstitutional. And there is a growing body of legal scholarship that suggests that many of the DUI laws are unconstitutional and it may just be a matter of time. See, e.g., Monte Kuligowski, Rethinking DUI Law in Virginia, 42 U. Rich. L. Rev. 107 (2007).
Thus, in short, jtgain’s intuition is more sound than he’s getting credit for.
Okay, we will forget about the 4 trained officers. Let’s just say that hypothetically, you and I stood outside a local bar at 2am and had a five minute conversation with everyone who walked out.
Do you feel that you could discern, with a legal certainty, who was legal to drive and who was not? I’m not saying that you would give them legal advice, just determine in your own mind.
I know that I could not. And as I feel that you and I are both “reasonable people” we should be able to clearly discern a violation of this law if it is not vague.
It sounds very plausible to me because they don’t know if he is legally impaired or not.
If you asked an officer if it was legal to murder your wife, then he would obviously tell you “No”. He wouldn’t tell you to consult a lawyer, or fear answering your question because, “Gee, what if he has a valid legal reason for killing his wife and I just told him, ‘no’”
But the fact that he is hesitant to say “Yes” or “No” leads me to believe that there is doubt in his mind. If such a thing were “sufficiently clear” then you would think that he would have no problem giving a definitive answer.
I’ll admit that this is going past me. To me, it is obvious that the “contemplated conduct” at point in time X is driving after consuming Y amount of alcohol.
For example, I have been at a bar, and have had six beers in one hour and fifteen minutes. I am contemplating getting in my car and driving home. I can look at the charts and see that I should be at a .065 BAC, below the .08 threshold. Note I say “should”. Depending on what I’ve eaten, and other factors, I might be at .05 or up to .08; I don’t know. I also could be considered impaired by the subjective judgment of a cop that pulls me over. I could feel okay to drive, I could poll the other patrons or the bartender and regardless of what they say, I may or may not get arrested.
I contend that at that time, there is no way that my contemplated conduct, driving home, can be said to be a violation of the law or not.
And just one more thing about the officers: isn’t their job to give these “opinions” through their actions by either arresting or letting go?
For example: What if in my situation, my friend got in his car and drove off? Wouldn’t those officers have to have either let him proceed or charge him with DUI? Obviously they have an expertise in this matter that they are required to use, so why shouldn’t they be able to tell you a half a minute beforehand?
No. Being drunk is not a crime. DUI is. By virtue of the 4th Amendment, they are not allowed to test him for his BAC until he is suspected of committing a crime, which in this case requires him to drive.
After that, if you read the link I posted, all bets are off.
If laws against drunk driving are unconstitutional then your constitution is crap.