I do and I don’t care if you have had one drink or ten.Your ability to operate a vehicle is impaired.
The history of DUI/DWI is interesting. First the terminology: DUI = Driving Under the Influence, DWI = Driving While Impaired. These terms are often used interchangeably, and in some states only one term even exists on the books. For example a State may have a DWI statute that has sub sections which cover specifics such as a per se limit of BAC which is considered sufficient evidence to say the crime of DWI has been committed. Some States might have both a DUI and a DWI statute.
Long ago, before the age of breathalyzers and even field sobriety tests, it was illegal to operate a motor vehicle while impaired. This meant if you were pulled over and were so sleepy you were nodding off while talking to the officer, or were so drunk you fell out of the vehicle when you opened the door, the officer could arrest you and submit his personal observations as evidence you were too impaired to operate a motor vehicle. The reason for impairment wasn’t as important as the fact of being impaired, society did not want impaired people driving, be they impaired from having been awake for 36 hours or impaired from drinking a twelve pack of beer.
Eventually society began to focus more on the specific alcohol-related aspects of impaired driving. As society began to take it more seriously, prosecutions began to rise. Historically (and in my own lifetime, around the time I was a teenager/young adult) it was not uncommon at all for the police to be very “paternal” in regards to impaired drivers. They might suggest the driver go to a hotel and get some rest, go home, park their car and call a taxi, or et cetera. I have many personal anecdotes from my young adulthood in which people committed pretty flagrant crimes while driving tanked and the police just gave them a pat on the back and sent them home. For example a friend of mine took out a row of mailboxes/newspaper machines and ended up wedged in between a tree and the corner of a building. A wrecker was called and the police gave him a ride home, with a warning to take it easy on drinking, no charges filed. However, people eventually came to view this behavior not as just “a fact of life” but as a societal ill that needed to be addressed.
So prosecutions for driving while impaired began to rise, however they weren’t easy things. A prosecutor had to successfully convince a judge or jury (in cases in which the crime was serious enough to permit a jury trial) that the defendant was impaired. This involved submitting evidence, officer testimony (which can and has been successfully mitigated by skilled cross examination) and et cetera. Prosecutors weren’t happy that some of these impaired driving cases weren’t going their way, at the same time, new technology had started to come out which allowed law enforcement to obtain somewhat reliable measures of blood alcohol concentration. I could be wrong but I believe it was the AMA who released a report stating that a BAC over .15 resulted in significant impairment for most individuals. Those results aren’t entirely surprising, some impairment will be seen at .02, but where you say someone is “significantly” impaired is hard to judge, and while MADD and other entities like to say that “all persons are impaired at x BAC” the truth of the physiology of humans is some individuals are more impaired than others at .05 or .08. So the first study that came out tried to deduce the number at which pretty much anyone is “significantly impaired.” However, .15 was just too high a number for prosecutors and society, you had to drink a good bit to get there and lots of people who were very drunk might fall under that number. For this reason .10 was adopted as a more accepted number, and jurisdictions all over the country created “per se” laws, which changed the manner in which DWI/DUI were prosecuted. No longer did a prosecutor have to demonstrate impairment if he could demonstrate the defendant was over the per se limit, he had satisfied the burden of proof. This made it much easier to get convictions.
Eventually we all know that the per se limit was lowered further to .08, however the per se limit aside the old standards by and large still exist. The crime of driving while impaired existed before the per se limit, so if a police officer has probable cause to believe you are driving while too impaired to safely operate your vehicle he can arrest you on that charge regardless of the measured alcohol concentration of your breath or blood. So if you submit to a portable breathalyzer test (PBT) and blow under .08, the officer is still acting properly to arrest you if he can demonstrate he had cause to believe you were too impaired to be driving. While I won’t speak for all States, I will also say that at least in my State (Virginia) it is my understanding that the results of a PBT aren’t considered accurate enough for use in an actual criminal proceeding. When you are arrested under suspicion of DUI you will be asked to blow into a larger, more expensive and more accurate breathalyzer at the police station. Typically this breathalyzer is certified to be working properly every so often and the officer administering the test must also be certified in its use (and some people who have blown well over .08 on the station machines have gotten off based on certification documents not being up to date.)
While most people who hear DWI focus on alcohol, there is certainly still a societal interest in other forms of DWI. I’m not personally familiar with any normal-civilian motorists being arrested and convicted of DWI solely for driving with too little sleep, however I do know that operators of tractor trailers and other large commercial vehicles have strict regulations on how many hours they are allowed to be on the road. They must keep log books and if they are pulled over they have to let the officer look them over, drivers can get in trouble for operating these vehicles without adequate rest time or for periods longer than allowable by law.
Finally, what is important to know about DWI/DUI is they are normal criminal offenses and mostly have normal punishments. While all States are different, in most States DUI is only punishable by the garden variety fines and / or incarceration of most misdemeanors. The fine will vary from State to State, the period of incarceration will vary from State to State, and of course some States will almost only subject people to the minimum (which can mean a fine with no jail time or 24-48 hours jail time which can be served as home confinement and/or as community service time.)
Often you will hear of situations in which people must wear a SCRAM bracelet or et cetera “because they had a DUI” but by and large that is not typically a statutory element of the penalties for DUI/DWI. Now, in some States if you are a multiple offender and sentenced to say six months for DUI you can opt to serve that sentence on home confinement. A condition of that home confinement will often be that you wear a bracelet that can detect whether you are consuming alcohol or not, and you will often be subject to periodic unannounced searches of your home to insure you do not have alcohol inside. However, the individual could always simply opt to go to jail instead.
In reality, most individuals charged with simple misdemeanor DUI, unless they are a repeat offender will only receive small fines and a small amount of incarceration, so even if they are on home confinement it will only be for a few days.
Where you really see people doing that for a long time is because of DMV policies, and not statute. If you are arrested for DUI you really have two dual processes you are going through. First is the criminal court process, a fairly understood and known thing. Second is the DMV administrative process, most states your license is not immediately revoked, but instead suspended or suspended thirty days after the incident. If you want to keep your license you have to go through administrative hearings at the DMV, and these are civil hearings meaning the burden of proof is different. It isn’t unheard of that someone gets their criminal court case dismissed or even obtain an acquittal, but the person still fails to win their DMV administrative hearing and end up with their license revoked.
Once the DMV has revoked your license, they have established programs you must participate in to get your license back. These vary wildly between the states. For example in one State to get your license back you must complete a certain number of hours of alcohol education and submit to an assessment at a treatment facility. If the assessor decides you have a problem with alcohol, they can require you to undergo various forms of treatment (1 on 1 counseling x number of sessions, group therapy, participation in AA, further education, up to and including intensive outpatient or even inpatient addiction treatment) and if the state mandates you complete the treatment requirements then that means the entity treating you can put a fairly comprehensive treatment plan in place and if you want to ever get your license back you have to complete it. This has lead to some animosity from persons who lose their license because of DUI, because the entities doing the treatment are usually private mental/behavioral health companies and the argument is they make more money the more treatment you require, so they have a vested interest in requiring everyone to complete a fairly rigorous treatment program regardless of their condition in regards to alcohol.
Pretty much any alcohol treatment program is going to require you abstain from alcohol during your treatment, the punishment for breaking that rule typically is forcing you to restart the program from the beginning. You will forfeit all money you have paid into the program at that point and will have to pay for everything from the beginning again, so if you drink while in the program and get caught, it can get very very expensive. These programs can be one source of the mandatory bracelets for monitoring purposes (mandatory in that monitoring is part of the program–you still have the freedom to not participate in the program but this will mean you do not get your license back.)
Some States will allow you to drive “provisionally” once you are enrolled in the treatment program, without any other restrictions. Some States will allow you to drive while in the treatment program, on the condition that you have an interlock device (basically a breathalyzer) installed in your vehicle, and that you only drive the vehicle that has said device. Most States have a mandatory period you must wait before you can go this route, though. I believe in some cases you might have to go six months before you are even allowed to get the interlock device, some States, once you get into a treatment program you only have to wait 30 days before you can start an interlock program.
Some interlock programs also require monitoring bracelets, as well.
Another source of monitoring bracelets is the probation system, if you are sentenced to probation a requirement of that probation can be a monitoring bracelet. In my experience, someone on a first offense DUI would not normally be given probation because the term of incarceration is so short it doesn’t really make sense to put someone in the system for such a short time and expend those resources. So for first offense DUI the main source of being required to wear a monitoring bracelet is either 1) as terms of home confinement (typically no more than a week or so in first offense cases) and 2) as part of the mandatory treatment program, 3) part of interlock or other programs that allow a person on a revoked for DUI license to drive before their license is fully restored, with wearing of the bracelet as one of the conditions.
So typically wearing such a bracelet is not a common “punishment” for DUI, but is the result of various programs and procedures that people who have committed DUI will go through because it allows them to drive again or is part of a program that allows them to drive soon after the fact whereas the alternative might be not driving for 6 months or more.
Agreed. The driver was probably given a field sobriety test and failed it. That, combined with the fact that the breath test conclusively showed usage of alcohol, would be enough to make the case.
Yes, there’s a very, very good chance that a portion (or several portions) of the story has been left out, like the standardized field sobriety tests, or SFSTs. In fact, many law enforcement officers don’t even have portable breath testing units (PBTs) and make the arrest based solely on their personal observation and the SFSTs. The breath test comes later, at the jail, and if the driver blows below the legal limit at that point, there’s still an argument that the person was above the limit at the time he was arrested. Since we know the rate at which alcohol is metabolized, the BAC at the time of arrest can be discovered through a little math, called retrograde extrapolation - i.e. “the driver’s BAC may be .075 now, but that means it was over .08 when we pulled him over an hour and twenty minutes ago.” The driver can conversely argue that the alcohol was in his stomach and not his bloodstream at the time he was pulled over and that his BAC at the jail was actually higher than it was when he was arrested, but that’s an argument he may have to have his defense attorney make to a jury.
Anyway, you’re correct - a crash alone may not be enough to prove impairment if the person blows below the legal limit. Despite efforts to the contrary, it’s not currently illegal to drink alcohol and then drive - it’s illegal to drink alcohol to the point of impairment and drive. If a person drinks two beers over the course of two hours and then get pulled over for going 51 in a 50, the officer probably isn’t going to arrest you if you pass your SFSTs with flying colors. If he does and the get to the station and blow a .03, it’s going to be very, very hard for a prosecutor to convince a jury that the the person was DWI/DUI. However, if you change the facts a bit and there’s an accident involved and the driver has beer on his breath, it may be a little more dicey for the driver. If he passes his SFSTs with flying colors the police might conclude that the accident wasn’t due to intoxication and still let him go, but if he’s a little shakey on them, the driver might get arrested. In that case, it will be up to a jury to decide whether he was impaired or not.
Which brings us to our next point - we know that the driver was cited and is now wearing a monitor, but what happened exactly? Did he accept a plea offer or get found guilty by a jury? In either case, there may be a bit more to the story than the driver is telling - a defense attorney may have explained to him that his case had some problems with it, or there many have been some evidence shown to a jury that was a little more inculpatory than the story you heard. Maybe he blew below the limit on the officers PBT but well above the limit on the intoxilyzer at the jail (which is much more accurate), or maybe he did really, really poorly on his SFST’s. If the evidence against him really was as shaky as he says, maybe he’s wearing the monitor as part of a pretrial diversion agreement where the prosecutor agrees to drop the charge if he keeps his nose clean for a few months.
Thanks for the informative and thoughtful responses. I’ve been educated. I don’t know any further details about the incident - whether the driver was given/failed a field sobriety test, and so forth. But the driver did say that going through the program, including wearing the monitor for 90 days, would allow them to keep the incident off their driver’s/criminal record. So probably something like the diversion agreement you mention.
I don’t know the details of this story, none of us do, but if you believe having a single glass of wine at dinner makes you an impaired driver, well, you’re wrong. It doesn’t.
Only if he thought he was drunk. And only if he thought the police would notice.
Lots of people overestimate their sobriety, and lots of people think a police officer won’t notice that they’re drunk (even when they can barely stand or speak).
DUI is a political issue. Unless you’re ready to fight it tooth and nail to the maximum capability under the law, it’s just a slam dunk conviction for a prosecutor who’s looking to add up a conviction record. And for him, it’s just a job. More convictions = better resume. Carrie Nation is not dead, Prohibition has not ended, and the war will go on interminably. Hell, it’ll make the Vietnam debacle look like a weekend exercise.
If you go to court looking to use Common Sense about minimum levels, you’ll lose! You’ve got to attack the case, point by point, using the law, which means knowing how to cross-examine, how to overcome objections, and introducing or blocking evidence. That means a lawyer, 90% of which couldn’t tell you what LAW even is. So don’t just pick some jerk out of the Yellow Pages who was able to crib note his way through the Bar Exam. Because he’s going to have to know how to dance with a potentially obstructive judge as well as an opposing attorney. Otherwise, suffer the conviction.
We just had one where the prosecution didn’t even have a breathalyzer for evidence. Just dashcam video from the collision site, and I have to tell you, the guy acted pretty drunk. His lawyer didn’t help anything, either, since she acted like it was her first year in law school. Obnoxious and off-point all the time. We ended up convicting him. I mean, he was really drunk. Or if it was something else, then THAT should have been the defense, which never came up. (We learned afterward that this was his 4th time.)
And I’m one who will not convict anyone of DUI on the sole basis of a breathalyzer and no other circumstances.
You are correct on both counts. However we both know that there is no such thing as one glass of wine with dinner. You have drinks before and share a bottle with dinner. By the time you are done there’s four or five potent drinks in the space of two hours.
So to your original question.
I stand by my original response. I do.
:rolleyes: Please. Not everyone drinks this way, and not all casual drinkers are alcoholics.
I’m a casual drinker, and haven’t had four or five drinks in one sitting in over a decade at least (and I didn’t make a habit of it then, either). If I had that many drinks in one sitting, I’d get positively ill.
Indeed, my wife and I never have more than two drinks at dinner. If we share a bottle of wine, we’ll each have a glass or two, and bring the rest home in the recorked bottle. (Which is, by the way, an excellent law here in Connecticut, that of allowing people to bring a partially-drunk bottle of wine home so they don’t feel obligated to finish it in the restaurant.) We currently have four or five partially drunk bottles of wine in the refrigerator at home, so we clearly don’t make a habit of polishing off bottles of wine in restaurants.
FWIW, at dinner tonight, my wife actually did have a single glass of wine. I had a single beer.
If he’s being allowed to keep it off of his record, something along those lines is a distinct possibilty. In my state you can’t get court supervised probation for a DWI that allows you to keep your record clean after you plead (a/k/a “deferred adjudication”), you have to get informal probation from the prosecutor that gets your charge dropped altogether, and it doesn’t go to just anyone. If the police made a questionable arrest and the prosecuor realized once it reached her desk that there were problems with proving the case in court, doing a deal like pretrial diversion is a good result for all involved - the prosecutor doesn’t have to take a bad case to trial but doesn’t just have to roll over completely either, and the defendant get to make the case go away with some effort and good conduct on their part.
You could simply wrong about this. Many people drink a single glass of wine with dinner.
You clearly have a drinking problem, and I would agree completely that you shouldn’t ever drink and drive, since you are incapable of having a single drink. Not everyone shares your illness, however, and so many people do, in fact, have a single drink with dinner and drive with no impairment.
So, I, too, stand by my original response.
http://www.duiblogger.com/field_sobriety_tests/
Field sobriety tests are bullshit too. Many people can’t even pass them while sober because they don’t have good balance in general, or are overweight/have an off-center center of gravity. Or are nervous because there’s a cop in their face.
The problem I have about DUI is the way it’s approached. Since .08 is considered to be the legal limit of impairment where no other evidence is required, people ASSUME that it means the level of being “drunk”. So when someone blows .16, they’re twice the legal limit, or “blind stinking drunk.” Likewise, someone who blows .24 must be near death from alcohol poisoning and shouldn’t even be allowed near other humans, even to sleep it off in bed.
Years ago, I had to go to an “Alcohol Awareness” class. No, not because of anything I did; we all had to do it as enlisted personnel in the Navy. It was there I learned that 1 glass of wine = 1 can of beer = 1 shot of booze. It was also there I learned that drinking any TWO of those within an hour would put you at the legal intoxication limit (which was .10 back then). Hey, I’m no doctor, if they say so, it must be so. Why would they lie? Why, indeed?
It was a dozen years later in Australia when we were having a conversation about drinking and driving, and I mentioned the two drinks in an hour. And everyone looked at me and said, “Nah, mate, it’s FOUR drinks in an hour.” Forward some 20 years later, and the conversation comes up again. Two drinks or four drinks? So I look it up on the internet. It may have changed in the last 3 years, but what I could find was about as deliberately cagey as it gets. Nobody wants to admit just what happens.
Here’s what I’ve been able to find out. For each drink, you raise your BAC about .02%. So, 4 of them in an hour would put you at the legal limit of .08%. But wait! As your building it up, your body is also purging it. Unfortunately, only at the rate of about .015% an hour. So, if you have one drink and wait an hour, you’ll still blow .005%. Not exactly what I’d call debilitating, no matter what Carrie Nation has to say about it. But, 4 drinks at .08%, even burning off .015%, you’re still at .065%. One more drink puts you OVER the limit, if you’re not already in one of those states with a separate, lower Driving While Impaired limits.
Fine, but I’ve had 4 drinks in a hour, and while I might have a buzz going, I’m not drunk by any stretch. Drunk is falling down. Drunk is slurred speech. Drunk is blurry vision and the urge to believe I’m the world’s best karaoke singer. And 4 drinks ain’t doing that for me. So, at what point am I drunk? Well, a lot of that is bravado and bragging rights. But we should be able to find a guess level.
So, in two hours, I’ve had 8 drinks for .16%, but I’ve burned off .03 for a net BAC of .13%. Still not “twice the legal limit” but let’s not fool ourselves. Even though I can “handle it”, I’m still nearing the point where I’m potched. As for driving, at this point, I’m at the level of a teenager who’s just gotten his license three weeks ago. I can drive, but I’m still a danger.
So, another hour. 4 more drinks. .08 x 3, minus .015 x 3, = .195% Now we’re over twice the legal limit. Took 3 hours and 12 drinks. I’m still not drunk. Sure, I’m feeling no pain, but I can still walk without stumbing. I’ve been dancing with your wife for the last half hour and she thinks I’m a dream. (Maybe she’s the one that’s drunk.) I’m still able to carry on coherent and, yes, intelligent conversations.
So, now it’s 4 hours and 16 drinks. Yeah, I’m potched and even I know I shouldn’t be driving now. Yeah, I’ll even admit that I might be drunk. By formula, I’m at .26%. I’m not falling down, although I don’t know why. But I find myself having to carefully work my words. Hell, I might even be talked in karaoke at this point.
Bottom line, one night I was curious just HOW much I’d drink in a night and tried to keep count. I lost track after 23, and I don’t know how long it took to reach it, but I kept on long after it. And I still never fell down, although when I laid down, the ceiling was definitely spinning. So by rough calculation, my BAC had to be in excess of .40%. Been drunk more than once in my life. Several times. So is it any wonder that someone at .08% thinks they’re okay? They know what it feels like to be drunk, and the feeling at .08 just ain’t it.
Impaired at .08%? You betcha! Hell, sober people are impaired MOST of the time they’re driving. Lack of experience, attention diverted, even for a moment, cell phones, adjusting the radio, adjusting the heater! Glance at the kid in the back seat, and someone in front of you has just slammed their brake. You’re impaired. Your attention is not on the driving, your ability to respond has been degraded. Why should alcohol be the sole demon in this environment?
Oh, sure, you CHOOSE to drink, while the others are accidents you have little control over. So freaking what? Accidents are accidents. Collisions are collisions. Death is death. Your insurance goes up anyway.
Alcohol related accidents and deaths may be the #1 factor, but all of them still account for less than half of the total. So there are MANY other factors that share a major accountability, but remain unaddressed. Why is it only alcohol that a person can be criminalized and fined for the POTENTIAL for causing an accident or injury, even if none occurs?
Because we CAN. There is nothing in the Constitution or the law to prohibit making such a law. And that’s why I say it’s a political law. Anyone with money can beat it, but anyone who tries to appeal to common sense is screwed. And that’s why someone with 6 DUI’s ends up killing someone anyway, while someone else with 1 DUI is nearly bankrupted.
You do realize you are contradicting yourself, right? The hypothetical is having one drink and not being impaired. you claim this is wrong, and yet your defense is that you can’t just have one drink. You’re admitting that one drink is not enough to make you impaired.
And here I thought you had some studies or something that said that one glass of alcohol impairs driving…
Indeed. And presumably, the guy in the OP has just been in an accident – shaken up and upset – and he’s being asked to stand on one foot and touch his nose while saying the alphabet backwards and hopping in a straight line. (I’m only exaggerating a little bit.) Of course he’s going to fail. Those “tests” are crap, meant only to entice the driver to incriminate himself.
Spectacularly interesting discussion, Martin Hyde. I love to get the legal/societal background on these things. Thank you.
Add me to the growing list of people who rarely have more than one drink. One beer or one glass of wine and that’s it for me.
Well, one possible test of whether or not one is impaired (by one drink or more) would be whether one sideswipes a car.
I think that sort of accident, while it certainly might not involve impairment, is very typical of the kind of accidents impaired drivers have – they have trouble judging an oncoming vehicle’s approach, and decide to evade, but have trouble processing how much room they have on the other side of the car. Very inexperienced drivers make much the same sort of judgment errors (and being a very inexperienced driver is a little like being impaired).
I am open to the argument that one drink might not impair most drivers. But it’s a lot less persuasive coming from someone who’s just had an accident showing failure to judge distance and/or over-reaction, because that’s so typical of impairment…and it’s even less persuasive when it involves the classic possibly phantom other car that can’t be identified.
Maybe this guy is totally innocent. Maybe he can persuade a judge that his version is correct. But it doesn’t sound outlandishly inappropriate that officers on the scene decided he should have that chance to persuade the judge.
I am inclined to believe that his side of the story isn’t a very good representation of what actually happened. At the very least, I’m guessing he blew just under the presumptive limit in his state, rather than comfortably under it.