DUI law ruled unconstitutional

TimesDispatch.com ^ | today | Matthew Bakarat

[Rodney King]

McLEAN -- A Fairfax County judge has ruled that key components of Virginia's drunken-driving laws are unconstitutional, citing an obscure, decades-old U.S. Supreme Court decision that could prompt similar challenges nationwide.

Virginia's law is 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, Judge Ian O'Flaherty ruled in dismissing charges against at least two alleged drunken drivers last month.

As a district judge, O'Flaherty's rulings do not establish any formal precedent, but word of the constitutional argument is spreading quickly among the defense bar. Every state has similar presumptions about intoxication at a 0.08 blood-alcohol level, so defense lawyers across the nation are likely to make similar arguments....

[ex-Texan]

I agree with you. But do not try drinking and driving in Oregon. We were the first state in the country to adopt .o8 as the legal limit. Two or three beers for most people will put them over the limit. The entire state is one, vast police trap with cops stopping people for seat belt violations and faulty turn signals.

[jwh_Denver]

"laws are the lazy way out"

Oh, very true. But mankind loves laws, the more the better. And it doesn't matter if there are already 40 laws on the books that address the same thing. Jesus Christ boiled down all of the Old Testament law into "Love thy neighbor as thyself". All of our laws could be broken down into a simple moral code but that would require thinking whether they were breaking this moral code so they opt for specific laws.

[elkfersupper]

Thank you. Very cogent. Keep up the good work.

[takenoprisoner]

"If this law is overturned, all the legislatures need to do is to simply make it a crime to have a BAC over .08. Right now all it does is create a presumption that you have broken the law."

Anything near .08 in Georgia and you're off to jail with your car impounded. That's some presumption. And then there's the few thousand dollars later...your job and your life in jeopardy.

My theory on this is that social engineers (like MADD) should have no standing in a free republic...

Now drunk drivers, those real and actual drunk drivers who are visibly impaired, and readily proven with a few field sobriety tests like the one's that worked for years, throw the book at'em Dano!

[Luke21]

I'm a fifteen year recovering alcoholic too, so I no longer drink alcohol, but the laws these days border on extremism and tyranny. What was once a perfectly reasonable crusade against drunk driving has now been made into a war against anyone who imbibes. Given the opportunity they will criminalize a driver who has had a single beer.

We are giving police and the courts power over every aspect of our conduct. I was in a courtroom the other day with people charged with petty crimes. I drive mental patients and one had not appeared in court because of being hospitalized. The security guards and police treated everyone who entered the courthouse like dogs. One fellow had been ticketed for jaywalking in front of the courthouse. He was half blind and on crutches. What a criminal he is.

Liberals love controlling every aspect of human behavior. Liberals have no faith at all in their fellow citizens. They want rules and regulations for everything that could ever happen. That's a police state. And I'm appalled at how many people here think it's a good thing.

We don't punish our sex offenders and predators. But we have police prowling for speeders in artificially low speed zones and drivers having a couple of beers? Insanity, pure and simple.

[hoosierham]

The most dangerous phrase ever uttered is "there ought to be a law"(against something the speaker doesn't like).Our legislators are only too willing to write those laws.

[BushCountry]

If you disagree, then you don't know lawmakers. I certainly would not allow the legislature of my state to sit idly by while impaired drivers are free to endanger my children. I think I'm in the majority on this one.

But are sitting idly by?

Have you called for a ban of drivers over 75? Some older drivers may still have the reflexes and ability, but most are unsafe at any speed.

Have you called for a ban of drivers under 20? Some may have the temperament and the good judgement to drive, but most are extremely unsafe.

Have you called for the random testing of legal over the counter and prescrition drugs? Taking sedating antidepressants even 10 hours before driving is equal to driving drunk. 10 mg of Valium can cause greater driving impairment than a blood alcohol concentration of 0.1 (at or above the legal limit in all states). Antihistamines — which block allergic reactions — slow down reaction time and impair coordination. Over-the-counter decongestants can cause drowsiness, anxiety, and dizziness.

Have you called for a total ban of cellphone usage in cars? All of the researchers agree that the risk of crashing is multiplied when a driver is talking on the phone (2600 deaths, 570,000 injuries, and 1.5 million crashes causing property damage). FYI: Since it's been shown that the distraction from cell phones is mostly a cognitive one, having both hands on the wheel will make little difference.

Yes, the point is that you allow your legislature to sit idly by doing nothing about hundreds of other types of impairments. These impaired drivers endanger your childern but you are happy as long as they have an arbitrary law against a .08 BAC.

[raygun]

Sir, "obviously off the wall" is something that can easily be refuted. Which specific statistics do you object to? Please allow me to, with respect to you major objection, respond. Your other contention I can not address, as I believe that the laws in existence are a result of a vindictive, retribution, hate organization (and who really can blame these people for their emotions?). I've wrestled with the issue for several years, and believe that its more "knee jerk" response (albeit pragmatic), rather than a solution that addresses the core of the problem. The core of the issue is that alchohol and other intoxicants have become a pivotal and fundamental part of our society. All of that was explained to me during my Alchohol Awareness programs that I was legally required to attend a few years ago.

The US Department of Transportation estimates that the typical driver will have a near automobile accident one to two times per month and all will be in a collision of some type on average every 6 years.   According to the National Safety Council (NSA), there are more than 12 million motor vehicle accidents annually that involve more than 20 million vehicles.  Of these accidents, about 6.4 million are nonfatal, over 2 million are injurious and about 4.3 million are property damage only.  The following charts are from the NHTSA:

Chart 6 Occupant Fatalities in 2002
By Age and Restraint Use, In Passenger Vehicles

Age Group	Restrained	Percent Restrained	Unrestrained	Percent Unrestrained	Total	Total Percent
0-4	274	59.6%	185	40.4%	459	100%
5-9	205	51.4%	195	48.6%	400	100%
10-15	350	37.7%	576	62.3%	926	100%
16-20	1,999	35.5%	3,626	64.5%	5,625	100%
21-24	1,199	32.6%	2,477	67.4%	3,676	100%
25-44	3,232	32.7%	6,656	67.3%	9,888	100%
45-64	2,947	46.8%	3,353	53.2%	6,300	100%
65-74	1,253	58.5%	887	41.5%	2,140	100%
75+	1,983	63.9%	1,122	36.1%	3,105	100%
TOTAL	13,448	41.4%	19,071	58.6%	32,519	100%

Chart 7 Occupants Killed or Injured In 2002
By Injury Severity, In Passenger Vehicles

	Injury Severity
Age Group	Killed	Incapacitating*	Non- incapacitating	Possible Injury	Injury Severity Unknown	Total Injured	Total
0-4	459	6,588	15,552	35,602	783	58,525	58,984
5-9	400	7,038	21,087	42,822	758	71,705	72,105
10-15	926	12,569	34,745	74,536	1,062	122,912	123,838
16-20	5,625	56,053	149,645	266,200	4,167	476,065	481,690
21-24	3,676	35,973	89,255	166,995	3,302	295,525	299,201
25-44	9,888	99,504	227,077	595,110	7,912	929,603	939,491
45-64	6,300	57,286	118,747	343,343	3,711	523,087	529,387
65-74	2,140	13,343	32,042	65,376	391	111,152	113,292
75+	3,105	14,604	28,096	49,983	422	93,105	96,210
TOTAL	32,519	302,957	716,246	1,639,968	22,507	2,681,678	2,714,197

*An incapacitating injury is any injury, other than a fatal injury, that prevents the injured person from walking, driving, or normally continuing the activities the person was capable of performing before the injury occurred.

It should be noted that 4,563,000 cases were reported by emergency departments to the CDC classified as "autmobile injury" in 2000.

According to Federal Highway Administration statistics for 2000:

	Fatal Crash Occupant Statistics by Restraint Use
restraint use	Survived	Percent	Killed	Percent	Total	Percent
yes	31,328	73%	11,622	27%	42,950	52.4%
no	13,985	44%	17,672	56%	31,657	38.6%
unknown	4,742	64%	2,616	36%	7,358	8.9%
TOTAL	50,055	60.3%	31910	39.6%	81965	100%

	Vehicle Occupant Statistics by Restraint Use
restraint use	Uninjured	Percent	Injured	Percent	Total	Percent
yes	2,114,000	47%	2,351,000	53%	4,465,000	81.4%
no	152,000	30%	359,000	70%	511,000	9.3%
unknown	311,000	61%	199,000	39%	511,000	9.3%
TOTAL	2,577,000	46%	25503559	54%	5487000	100%

Given that there are an estimated 296 million people in the U.S.A., according to the above statistics, the probability for any person in the U.S.A. to be an occupant of an automobile accident by random chance in any arbitrary year would be 5487000/296000000 (or 98.1463% against).  However, over the course of 80 years, random chance suggests 77.62% chance for the event to occur at least once during that time.  The above data (2351000/5487000) shows there's a 57.15% chance against those involved in an accident and wearing a seat belt from being injured.  So the risk to the any member of the population at large amounts to 1.853 * 42.85 (or 99.2% against).  However, over the course of 80 years, random chance suggests 57.35% for that event to occur.   And finally, the probability that, by chance, one will be injured in an automobile accident (while wearing a seat belt), and the injuries being fatal amounts to (11622/3191) * 42.85 * 1.853  (or 10723:1 against).  However, over the course of 80 years, this becomes almost a 1% certainty.

Perhaps my statement of virtual certainty of an injurious accident during one's driving career was a bit over-zealous, in that the great likelyhood exists within one's lifetime.  However, I rest on my original, and subsequent (this) posting that the preponderance of chance is precisely what I stated, and that furthermore, the likelyhood of injury (based on the statistics for unrestrained motor vehicle occupants) much greater.  I'll concede that the statistics presented appear to show a higher incidence (compare incidence w/ prevalance) of injury, but what would the fatality statistics be if but for the restraints?

---

[smug]

I agree with you on those occasional drinkers (also the habitual knee-walking drunk). I'd like to see the BAC scrapped and changed to a reaction time differential test. This gets drunk,potheads etc. as well as the "a tea-totaler with dangerously slow reaction time" off the roads.

[raygun]

Something has to be implemented that's going to either address the core of the problem (the prevelance of people getting hopped up), or how to differentiate those who are hopped up but pose no risk and those who actually are hopped up and actually are impaired. The solution should be able to catch OTC cold-remedy users too. Clearly in our liberal, litiginous society, the issue of "damage to another" is without merit. I believe that to be an aspect of the "legal system" and not actually part of the problem. If they treated those who caused injury to others akin to the murderers that they actually are, there may not be as much contention. However, I believe the liberal part of our society that makes the excuses necessary to perpetuate this travesty.

Akin to the most famous statement that, "all it would take to make the world's greatest evangelist is for anybody to spend five seconds in hell", all it would take would be to experience a loved one taken from you by a most excellent repeat existing alchohol-prohibiting law offender getting of "scott free." And to that thought I hang my head in shame (not because I'm guilty of that), becuase I've been there.

Anybody who has ever been accused of an alchohol related traffic offense had better wake up; it's most likely their best last chance.

[steve-b]

My primary concern with lowering the BAC so much is that it will reduce the social stigma that I believe has been a helpful factor in reducing DUI. I recall, growing up, that driving drunk was not a big deal, a "boys will be boys" type of thing to most people. Now it seems that most people are judgmental about it; I think it's good that social pressure also has been brought to bear to reduce the incidence of DUI. If, however, the BAC keeps getting lowered to the point where nearly everyone could be busted for DUI, where the crime becomes more common again, I think there's the risk of the "everyone does it" attitude returning.

*** DING DING DING *** No more calls; we have a winner!

[CSM]

"Did you really think we want those laws observed?" said Dr. Ferris. "We want them to be broken. You'd better get it straight that it's not a bunch of boy scouts you're up against... We're after power and we mean it... There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What's there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced or objectively interpreted – and you create a nation of law-breakers – and then you cash in on guilt. Now that's the system, Mr. Reardon, that's the game, and once you understand it, you'll be much easier to deal with." ('Atlas Shrugged' 1957)

[Junior_G]

Cops could arrest these guys left and right by waiting outside bars at midnight.

I've never understood why they don't do this. There are streams of extremely drunk people hopping in their cars and driving home from every bar every night.

[CSM]

"The standard I set for myself is 2 beers in one hour, or 4 beers in 2 hours."

You should be very, very careful. It could be as few as 2 beers in 2 hours and you'd hit .08 BAC. There are way to many variables involved to ever be certain.

[-YYZ-]

According to the Drink Wheel, I could have 5 pints (16 or 20 oz? How strong?) of beer over 2 hours and still be just a hair over the limit (.085 BAC). I can tell you from personal experience that after 5 pints (18 oz, I think) of 5% alcohol beer (v/v) in a 2-hour period that I am really not in any condition to be driving. So, to my point of view, a cut off of a .08 BAC seems quite generous, actually.

[phil1750]

15 years ago, I lost a 21 year old son to a drunk driver. I have no sympathy for those who drive drunk. There is no excuse for driving impaired. Get a designated driver, take a cab, drink at home, drink responsibly, etc.

[-YYZ-]

ps, I also agree that the penalties for DUI should be geared towards the level of intoxication - someone just barely over the limit should not be punished nearly as harshly (I'd suggest a shortish license suspension would be appropriate) as someone who is at 2 or 3 times the legal limit behind the wheel.

[1Old Pro]

I would like to see the BAC raised back to at least .10

Me too, but that would be akin to the government repealing a tax that has been previously instituted....never happen.

[tutstar]

ping

[CSM]

The burden would then shift to show that even though you exceeded the legal limit, you were not ACTUALLY intoxicated. In other words, the law provides an out for the guy who can handle his liquor.

---

How do you propose that a person prove they were not actually intoxicated? All it takes to have presumed guilt in your scenario is the police officers word. Period.

How do police officers get promoted? Prosecutors? And the one person not familiar with the system is supposed to be able to prove their innocense......