Tis the Season to Drink and Drive

By Mark David Blum, Esq.

Operating a four thousand pound machine propelled forward at significant rates of speed requires the driver to have his senses about him and be able to control the vehicle and respond to changing driving situations. Alcohol, drugs, exhaustion, and inattentiveness diminish the operator’s capacity to handle the machine. Death, destruction, property damage, and endless pain and suffering come about when the machine is not controlled properly.

Because an inattentive operator puts everybody in society at risk, we as a whole, have taken steps we feel will reduce the risk on the roadways. Politicians urged on by M.A.D.D. and S.A.D.D. made it a fad to “get tough on drunk driving”. We are now a society that demands we “DON’T DRIVE AND DRIVE”.

In passing these DON’T DRINK AND DRIVE laws, the system has become very unforgiving and onerous to the person arrested and charged with drunk driving. So much so, that merely being arrested and charged with DWI is enough to punish you for the crime. Entire industries have sprung up around the new DWI laws. Citizens caught in the net have no escape; innocent or not … and pay a heavy price without ever having a chance to defend themselves.

First, however, let’s be honest with ourselves.

It is NOT illegal to drink and drive. New York and the rest of the United States has never taken a position that we do not want people drinking and driving. In fact, we encourage drinking and driving. Bars do not come to your house and they do not offer rides to all their patrons. Same with restaurants and office parties; there is plenty of booze and no rides for the partygoers. We know and accept that people get behind the wheel of a car. It does not bother us.

In New York for example, you are not “drunk” for legal purposes unless there is a certain percent of alcohol in your blood. Zero point zero five (0.05% BAC) is enough to arrest and charge you with Driving with Ability Impaired. At zero point zero eight (0.08% BAC) you can be charged with DWI. What those numbers reveal is that we in New York tolerate drinking and driving. If we were being honest with ourselves and were serious about eradicating drinking and driving, we would set the bar at zero point zero zero (0.00% BAC). Doing so would make sure that everybody knew the rules and everybody would be able to comply. Don’t drink and drive.

Though the process differs slightly from County to County, essentially once a person is arrested and charged with DWI, they have to make an instant decision. They can plead NOT GUILTY, go through the motions, have a trial, and get a verdict. The evidence against the driver would be the testimony of behavior by the officer and the breathalyzer results taken within two hours of the arrest. What defense is there? Challenge the machine? Call the officer a liar? Once there is a zero point zero eight or higher BAC, the conviction is guaranteed. “DWI” is defined as having a BAC above 0.08%. Period. You cannot claim that despite having a 0.08% BAC or higher, that you were not actually intoxicated while driving and incapable of operating the machine. To even do so, the burden has shifted to the defendant to prove his innocence. Still, “innocence” would not be “not intoxicated” but rather “not 0.08%”.

In realizing this, prosecutors have taken complete control away from the Courts and have created an entire new industry. As a grand gesture of benevolence, and in return to not challenging the arrest and not going to trial and not filing an appeal, prosecutors offer to reduce the misdemeanor DWI (0.08%) to a violation Driving While Ability Impaired (0.05%) provided the driver get an alcohol evaluation and follow the “recommended” course of treatment, the driver attend a class listening to tales of horror by DWI victims, and comply with several other minor provisions of the law which mostly involve paying money to everybody who can grab a piece.

Ultimately, the driver gets a 90 day suspension; which because of the ‘hardship’ provisions of the law, results in a 90 limited suspension (you can drive “to” work, but not “for” work), pay a fine, and be forever branded a drunk driver. This package is available to everybody … from the Chief of Syracuse Police to the chief agitator at a traffic stop.

What has happened, however, is that the innocent are more often than not, caught up in the net. The BAC DWI law is a very bad law. It casts us as all being the same and punishes those with a higher tolerance for alcohol the same as a tea drinker. Some scenarios: You never drink at all but have a couple glasses of wine at an office party. You did not eat, were tired, hungry, and recovering from a hard and busy week. You get behind the wheel of the car and while momentarily distracted by a cute person on the sidewalk, nearly hit the car in front of you. A cop sees your short stop and decides to investigate. He smells alcohol on your breath and arrests you for DWI. At the police station, you blow 0.08 and are charged with DWI.

If you think this is uncommon, you are sadly mistaken. Just in my office over the years, I have seen guys who play in a band and who have a beer or two while tearing down after the show, get stopped for routine traffic offenses, get arrested because of the smell, and then get charged because of what later becomes a DWI BAC.

Or, a former employee of mine who went out and got toasted one night and who did what I had told him … if you can’t find a ride, sleep it off in the car … did in fact sleep in his car but was woken up about four in the morning by the rapping of a police baton on the window waking him up and telling him to move along. The cop parked ½ block away and as soon as the employee left the parking lot, he was stopped, arrested and later charged with DWI for his BAC.

Some police officers will sit in hiding with a visual on a bar or other establishment where there is drinking, and will watch people come out, follow them when they get on the road, pull them over for a minor traffic charge, and catch the DWI based on smell and later BAC check. Former Cicero police Alfred Forkhammer held the record for most DWI arrests.

(There is justice in the world, however. A Clay police officer once staked out a bar and followed a woman who left and pulled her over on what she says was a bullshit traffic charge. He insisted she take a field sobriety test. She was very unhappy and uncooperative; which only fueled the officer’s suspicions. Ultimately, he took her into custody, towed her car, held her for several hours … and her breathalyzer test came back 0.00. It seems unbeknownst to the officer was that the woman was a devout Muslim and does not drink alcohol at all. She was attending an office party at that bar. She and her lawyer got paid well for the false arrest, etc.).

The point is that so many have made so much noise about DON’T DRINK AND DRIVE that the system, the laws, the presumptions, and the sentencing have become so onerous and biased against the accused, that absent unusual factors, nobody can defend themselves against the charge. Immediately, defendants choose to fold, take the plea, pay the money, sit through hours and hours of ‘counseling’ … (usually requiring as many sessions as the driver’s insurance will pay for and then suddenly, the driver is “cured”) … take the 90 day suspension, and pay insurance and driving premiums for the rest of their lives. It is a well-oiled machine and everybody is making money.

Do you know someone charged at some point with DWI? I bet you do; if not yourself. DWI convictions are so common place, that they no longer have any negative social stigma attached. There are so many DWIs charged these days that the District Attorney’s Office here in Onondaga County has a special unit devoted just to those crimes. A three page list of treatment counselors and evaluators is provided to all defendants.

Now, indeed there are those people who are well beyond their ability to handle a car and who still get behind the wheel. Unfortunately, we don’t catch those people until someone dies. It has been explained to me by prosecutors that the good of the far reach of the current DWI procedures is that you hope to catch the real drunk driver and the real alcoholic before they kill. You may not catch them toasted that night, but in all likelihood, you may unearth them just for having had a smaller amount of intoxicants. The hope is that the process itself will either cure the problem or at least identify it to prosecutors and counselors.

Benevolent though it may be, the net is still cast to widely. We cannot save humanity from itself. DWI checkpoints are great ideas. You can catch the threat before it materializes. Fear of arrest and prosecution does inhibit drunk driving; as does education.

You should also know that these laws are being abused by folks whose choice of intoxicants is not alcohol. I have heard how people imbibe their favorite drugs and then will have a swig of beer before they leave. Because most of what police officers predicate their decisions upon are swayed by smell and physical observation, the default position by the officer is for a DWI which will later fail because of the significantly low BAC. By then, however, it is too late and the otherwise drug intoxicated driver gets away with the crime.

Yet, the same law that keeps us safe from the real bad guys, also catches the office partier, the graduation dinner celebrants, the wedding party, the bris, and people who leave the premises of every major social event in our nation. Alcohol is a part of our culture and is engrained in most of our celebrations; in and out of church. Our current law and procedure is set up to shoot all the fish in the barrel; whether they are keepers or not.

Think about it … you are at a friend’s house, talking about life, maybe barbequing on a lovely summer’s eve. Having a couple of beers is almost expected under those circumstances. You have a great day; are calm and at peace. Finishing your beer, you leave the house and head home. Woops, didn’t see that kid about to jump out between two cars, did you? Poor little boy, he didn’t see the car neither. He gets hit. Police, fire, and ambulances arrive. You get a field sobriety test and a field breath test. Bingo! You’ve been drinking. Now, not only will you face the DWI, but if Judge Aloi sits on your case, likely you are looking at 1-3 years in State Prison. Not because you were actually drunk, but because you had been drinking and there was a certain percentage of alcohol in your bloodstream.

Twist the hypothetical this way … you do not hit anybody. A police officer follows you and sees you violate a vehicle and traffic law. You are kind, respectful, and fully compliant. But, the officer smells the beer on your breath. Out of the car you come, you are field sobriety tested, and do OK, but he still arrests you and charges you. At the station, you do the 0.08.

When you first consume a quantity of alcohol, your BAC does not immediately rise. Depending on so many individual physical factors, there is a significant time lag between consumption and intoxication. If you have that beer before you leave the party and feel fine and sober in the thirty minutes it takes you drive home, your BAC is going to be rising. Now, throw in the delay of a traffic stop, arrest, and testing at the station, and whatever alcohol content is in your tummy will be more fully digested and in your bloodstream. Your BAC would be rising as you sat in the jail cell; not behind the wheel of the car. You might have been home before your BAC reached the legal limit but the traffic stop delayed that effect. Would you feel comfortable testifying you were sober at the time of the stop but your BAC rose to an unacceptable level at the police station? Would you believe a defendant who so testified?

You hope you catch the driver whose BAC level is dropping and still is over the legal limit at the time of the test. That person is more likely to be incapable of operating a motor vehicle than is the climbing BAC. The problem, however, is that a driver cannot defend themselves and prove that fact. There is a presumption that the 0.08 means not only that you were intoxicated to where you could not operate a motor vehicle, but also that you were 0.08 AT THE TIME of your having been stopped.

What we need is more common sense in our laws. The BAC approach violates due process and punishes the innocent along with the guilty. It simply is unfair to require each citizen to be of sufficient expertise and experience to be able to gauge their BAC every moment they are driving. The burden should always be on the prosecution to establish, not the 0.08 but rather that at the time the driver was operating the vehicle, he was intoxicated to where he could not operate the vehicle safely.

And it is not just me, babe. Virginia’s DWI law was just declared to be “unconstitutional” because it presumes that an individual with a blood-alcohol content of 0.08 or higher is intoxicated, denying a defendant's right to a presumption of innocence. The Virginia Court relied upon a 1985 United States Supreme Court case, Francis v. Franklin, 471 U.S. 307, 308, which held that “a jury instruction that creates a mandatory presumption whereby the jury must infer the presumed fact if the State proves certain predicate facts violates the Due Process Clause if it relieves the State of the burden of persuasion on an element of an offense. If a specific portion of the jury charge, considered in isolation, could reasonably have been understood as creating such a presumption, the potentially offending words must be considered in the context of the charge as a whole.

There is coming about a recognition that the current DWI laws are just totally unfair. They make for great sound-bites for politicians seeking to suck up to the voters. “I love babies and I want the streets safe for babies and no bad drunken drivers should be allowed to kill babies and that means I am going to pass laws that are mean and nasty to anybody who might want to drink and kills babies.”

But, the DWI laws are unfair to you and me. If you really want to leave a legacy for your children, do this … make it a firm social policy that there is to be NO DRINKING AND DRIVING AT ALL or require prosecutors to PROVE a driver above a certain BAC was actually intoxicated at the time he operated the vehicle. Tolerating drinking and driving and punishing all who smell of alcohol is baiting the hook to feed municipal and insurance coffers.

To me, the current situation is unconscionable. But, since I too have to make a living,


But if you do and you get caught, you know where to find me.

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