TCS Daily

Drunk with Power

By Radley Balko - July 29, 2004 12:00 AM

When Pennsylvanian Keith Emerich recently went to the hospital for an irregular heartbeat, for purposes of getting an accurate diagnosis, he told his doctor he was a heavy drinker -- about a six-pack per day. The Associated Press reports that several days later, Pennsylvania's Department of Transportation sent Emerich a letter. His driver's license had been revoked. If Emerich wanted it back, he'd need to prove to Pennsylvania authorities that he was competent to drive.

As it turns out, Emerich's doctor had turned him in, as required by a state law which requires medical professional to report any condition in their patients that may impair the ability to drive. Emerich says he never drives after drinking. He does have one drunk driving conviction -- twenty-three years ago. Other than that, his driving record is spotless.

The Pennsylvania law is old (it dates back to the 1960s), but it's hardly unusual. Five other states have similar laws. And all states permit physicians to report such information on voluntary basis.

Courts and lawmakers have stripped DWI defendants of the presumption of innocence -- along with a host of other common criminal justice protections we afford to the likes of accused rapists, murders and pedophiles. For some reason, we've come to accept the idea that drunk driving defendants simply aren't entitled to justice.

In the 1990 case Michigan v. Sitz, the U.S. Supreme Court ruled that the magnitude of the drunken driving problem outweighed the "slight" intrusion into motorists' protections against unreasonable search affected by roadblock sobriety checkpoints. Writing for the majority, Chief Justice Rehnquist performed a balancing test, and concluded that the 25,000 roadway deaths due to alcohol were reason enough to set the Fourth Amendment aside (interestingly, in the 2000 case Indianapolis v. Edmond, the Court performed the same balancing test on random roadblock searches for illicit drugs, and concluded that the drug threat wasn't severe enough to suspend the Fourth Amendment).

Problem is, Rehnquist's 25,000 number was off by a factor of about five. It included any highway fatality in which alcohol was in any way involved -- a sober motorist striking an intoxicated pedestrian, for example, would have been included.

Unfortunately, it's a formula that government agencies and anti-alcohol activists still use today. In 2002, the Los Angeles Times examined accident data and estimated that in the previous year, of the 18,000 "alcohol-related" traffic fatalities the National Highway Transportation Administration cited the year before, only about 5,000 involved a drunk driver taking the life of a sober driver, pedestrian, or passenger.

Yet courts and legislators still regularly cite the inflated "alcohol-related" number when justifying new laws that chip away at our civil liberties.

The Supreme Court, for example, has ruled that states may legislate away a motorist's Sixth Amendment right to a jury trial. Also, his Fifth Amendment right against self-incrimination. In 2002, the Supreme Court of Wisconsin ruled that police officers can forcibly extract blood from anyone suspected of drunk driving (in the test case, the suspect died while resisting the forced extraction). Other courts have ruled that prosecutors aren't obligated to provide defendants with blood or breath test samples for independent testing (even though both are feasible and relatively cheap to do). In nearly every other facet of criminal law, defendants are given access to the evidence against them.

These decisions haven't gone unnoticed in state legislatures. Forty-one states now reserve the right to revoke drunken driving defendants' licenses before they're ever brought to trial. Thirty-seven states now impose harsher penalties on motorists who refuse to take roadside sobriety tests than on those who take them and fail. Seventeen states have laws denying drunk driving defendants the same opportunities to plea bargain given to those accused of violent crimes.

Until recently, New York City cops could seize the cars of first-offender drunk-driving suspects upon arrest. Those acquitted or otherwise cleared of charges were still required file civil suits to get their cars back, which typically cost thousands of dollars. There was no reimbursement. The city of Los Angeles still seizes the cars of suspected first-time drunk drivers, as well as for those suspected of drug activity and of soliciting prostitutes.

Newer laws are even worse. As of last month, Washington State now requires anyone arrested (not convicted -- arrested) for drunken driving to install an "ignition interlock" device, which forces driver to blow into a breath test tube before starting the car, and at regular intervals while driving. A second law mandates that all drunken driving cases be heard by juries. It then instructs juries to consider the evidence "in a light most favorable to the prosecution," an absurd evidentiary standard unheard of anywhere else in the American criminal justice system.

Scarier still are the laws that didn't pass, but will inevitably be introduced again. New Mexico's state legislature nearly passed a law that would mandate ignition interlock devices on every car sold in the state beginning in 2008, regardless of the buyer's driving record. Drivers would be required to pass a breath test to start the car, then again every 10 minutes while driving. Car computer systems would keep records of the tests, which would then be downloaded at service centers and sent to law enforcement officials for evaluation. New York State considered a similar law.

DWI laws need to be grounded in sound science and the presumption of innocence, not in hysteria. They should target repeat offenders and severely impaired drunks, not social drinkers who straddle the legal blood-alcohol threshold.

Though the threat of drunken driving has significantly diminished over the last 20 years, it's still routinely overstated by anti-alcohol activists and lawmakers. But that's beside the point. We have laws on the books that violate doctor-patient privilege, meaning some patients seeking treatment must decide between giving medical professionals accurate information about themselves or risk losing their driving privileges. We have laws that suspend rights and protections we grant to far more serious criminal defendants. And we've all but eliminated the presumption of innocence.

Even if the drunk driving threat were as severe as it's often portrayed, casting aside basic criminal protections and civil liberties is the wrong way to go about addressing it.


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