There are two particular areas that come to mind wherein we take our usual Constitutional safeguards and put them on the hold for the sake of judicial expediency: rape and drunk driving.

I’m going to sidestep the whole rape issue for the moment because it’s such a contentious debate that it will sidetrack the main topic for discussion here. I’ll just say that I don’t bring it up because I am outraged. It’s a sticky subject and I think I fall more on the expediency side of the debate than the other.

Drunk driving is a bit more topical as we approach the New Year, so I want to address that one.

Normally, the accused has the right to refuse to self-incriminate, but in some (many? most? all?) if you refuse to take a drug test, the cop can (on the spot) arrange the holy fires of hell to rain down upon you. In Delosa they can take your drivers license and impound your car for 30 days or until trial on the spot. Even if you are exonerated, you still have to pay the impound fees. In some jurisdictions from what I understand they can technically sell your car before you’re convicted or exonerated, though I’ve never heard of this actually happening (I have heard of it happening in drug cases, though). Also, the fact that you refused to submit to a breathalizer test can be used in court, when no other case of refusing to self-incriminate is that the case (that I’m aware of).

As with rape, this is a response to a very real problem and it would be much more difficult to prove drunk driving cases without it. Drunk driving kills countless people every year and we depend on the breathalizer test to sort it all out.

What’s interesting about this, though, is that in many jurisdictions, including Delosa, you can be convicted even if you pass a breathalizer test. They hammer this point home when you take defensive driving. Passing the breathalizer test is not a fireproof defense against drunk driving. The ostensible reason for this is that if someone takes medication that makes the effects of alcohol more potent, someone with a .04 Blood Alcohol Content (BCA) is more drunk than the average driver at .08. There is also the more inconvenient rationale that some people really are incapacitated at .06 and need to be taken off the road.

Why do I refer to that as “inconvenient”? Because if some people are more affected at .06 than others at .08, then we have to admit that other people are not as impaired at .11 as the average person is at .08. If we’re judging the drunkenness based on impairment, then some .11 should theoretically not be convicted. The ability to effectively drive drunk should be a defense. If we’re judging it based purely on BAC levels, then nobody at .06 should be. Maybe the latter should be convicted of driving recklessly or something like that, but not of the same crime that is usually based on the BAC number.

I have the same discomfort with this that I do with paternity tests… an affirmative result is enough to get you, but a negative result is not necessarily enough to set you free. Paternity tests only involve money, though. Drunk driving tests can involve a lot more.

For the most part, though, drunk driving convictions when someone passes the breathalizer are very difficult to get and are rarely pursued. Juries have the BAC threshold ingrained into them and they will trust a breathalizer over a cop’s word about what constitutes drunken behavior. Even so, the time and money that goes into defending oneself is problematic. And unlike with traffic tickets, you’re going to go through every effort you can to defend yourself because you can’t make it go away with a $100 fine.

Of course, you can’t make it go with a $100 because the stakes are not only higher for the accused, they’re higher for society as a whole. Drunk driving has killed thousands upon thousands and arguably the authorities need every tool they can get in order to fight it. Despite having these tools, any 2am drive on a public street near a bar will indicate that they are failing miserably. Despite all of the threats that they can levy, people do it anyway.

In Santomas, Estacado, where I currently live, the SPD is having every officer from the Cheif of Police on down manning a car on New Years Eve to track down drunk drivers. I’m sure they’ll catch many, but for every one that they catch, dozens will go uncatched. The Santomas Taxi Association will also be offering free rides home to those that can’t afford it, but for every one of them they get, dozens more will drive themselves so that they don’t have to leave their car in the parking lot or will believe themselves not to be incapacitated. Tow companies will offer free tows, but there aren’t enough tow trucks.

No matter how you look at it, there are going to be a lot of people that are going to need to get home somehow. Some won’t be able to afford going home in any way except their car (even a free taxi ride will require an unfree one back to the bar to pick the car up). Without a solid public transportation infrastructure, the most efficient way for them to do it is to play roulette with their lives and the lives of other drivers. Most are willing to gamble that they can get home safely and without incident. The overwhelming majority are right.

All of the tools in the world that we give police can’t refute that logic, so I guess all we can hope is to scare the bejeezus out of enough people that as many lifes as possible are saved.

Category: Courthouse

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8 Responses to Drunk Until Proven Undrunk

  1. bobvis says:

    Wow, you have a couple of great points I hadn’t thought about. I’m not sure what I can say in response other than “I agree.”

    If you are worried about a post about rape being too contentious, you know where to send it. 🙂

  2. Peter says:

    It’s the concept of “implied consent”: in return for being allowed to get driver’s licenses, people consent in advance to taking breathalyzer tests if asked.

  3. Spungen says:

    Here’s what I read: Blah blah RAPE blah blah RAPE RAPE blah blah blah but I don’t want to talk about RAPE RAPE RAPE oh yeah and drunk driving bugs me too.

  4. ~trumwill says:

    Peter, the “implied consent” would definitely apply to the driver’s license being revoked, but that’s about the only one that it should logically apply to.

    Spungen, that’s an… interesting reading of what I said 🙂

  5. Webmaster says:

    Ok… I’m wondering which post Spungen was actually reading.

    And as for the rest, I’m surprised nobody has challenged their seizures and other issues on precisely the 5th amendment.

    Unfortunately, a “letter of the law” reading could excuse this on the following points:

    – A sobriety test or breathalyzer is not being a “witness against” yourself but rather a search, and in most cases a police officer is allowed to conduct a warrantless search if he has “good reason” to believe that “a crime is being committed” or “evidence is being destroyed.”

    – The test is not being taken in a court of law. (That it will be used later IN the court of law muddies the waters, but, well… lawyers).

    As for the rest… unfortunately, a lot of people are killed by drunk drivers (very sadly) and a lot of the country (especially in the south) are still of the Baptist/Fundie “alcohol is inherently evil and a tool of the devil (glug glug glug)” mindset. When you have that sort of social climate, to actually expect the rules to be followed equally is somewhat of a lost cause.

  6. ~trumwill says:

    The right to refuse self-incrimination is not limited to the court room. It also applies to police interrogation. I guess you’re right that it can be considered a “search”, though I think that’s a bit of a stretch (particularly since calling your lawyer and simply having him there for the test is grounds for the holy fires of hell).

    On the other hand, the fact that the evidence is being destroyed (ie the driver is sobering up) is pretty much why the safeguards against self-incrimination do have to be sidestepped. It would be really hard to ever get anyone if everyone was given time to sober up.

  7. vallab says:

    Becoming Drunk or Un-drunk depends upon which alcohol drink one choose to drink! People if choose those extremely dangerous high alcohol drinks generally having 5% and above alcohol content they will certainly expose themselves inadvertently to various alcohol(ism) problems most importantly the Drunk driving/accidents. On the other hand if they choose mostly the safe low-alcohol drinks most probably they would not unwittingly fall into the drunk driving most importantly into its accidents! I say on the basis of the alcohol(ism) epidemiological research survey, which unfortunately remains totally ignored. To know more, see

  8. Webmaster says:

    I don’t suggest anyone bother with vallab. I took the liberty of examining his “site” and the “research” he purports… and it’s simply bunk.

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