Zero Tolerance = Zero Sense

Jacob Sullum | October 12, 2005

Dale Gieringer of California NORML cites two recent studies that highlight the folly and unfairness of "zero tolerance" laws against driving "under the influence" of illegal drugs. Such laws treat drivers with any trace of marijuana in their systems as if they were intoxicated, even if they smoked a joint days before and are not impaired at all.

One study, published in the September Proceedings of the Association for the Advancement of Automotive Medicine, found that injured drivers whose urine tested positive for marijuana were no more likely to have contributed to the accident that injured drivers who tested negative. "An important reason for the negative findings in this study is that it relied on urine tests to determine the presence of marijuana," Gieringer notes. "Urine commonly tests positive for marijuana metabolites for days after use, long after any impairing effects of THC have faded. Those studies which have detected a negative impact of marijuana use on accident risk have relied on blood tests for THC, which are far more sensitive to recent use within the past couple of hours. "

The other recently reported study, which was commissioned by the French government, confirmed positive urinalysis results with blood tests. It found that drivers under the influence of marijuana were somewhat more likely to be culpable for accidents than drivers who had not used drugs, but not nearly to the same extent as drivers under the influence of alcohol. According to a report in Liberation (for which Gieringer provided a translation), the results indicate that "the risk of being responsible for a fatal accident under cannabis alone is weak, though not zero. The risk isn't in any case worse than that of a driver with between 0.02 and 0.05 blood alcohol content." The results are embarrassing to the French government, which in 2003 adopted a double standard that sets the legal blood content limit for driving at 0.05 percent for alcohol but zero for marijuana.

To get an idea of what "zero tolerance" would mean if it were applied to alcohol, read this eye-opening, infuriating Washington Post article (link courtesy of Mr. Nice Guy) about D.C.'s approach to DUI enforcement. It tells the story of Debra Bolton, an Alexandria, Virginia, lawyer who was handcuffed, arrested, jailed, and nearly forced into an alcohol re-education program because she had a glass of wine at a restaurant. The resulting BAC was 0.03 percent, less than half the legal limit in the rest of the country. "In Maryland and Virginia, as in other states, drivers generally are presumed not to be intoxicated if they test below .05," the Post notes. The paper quotes a toxicologist who disputes the arresting officer's contention that Bolton displayed signs of drunkenness: "There's no way possible she failed a test from impairment with a .03."

Comments

|10.12.05 @ 1:09PM|#

Her biggest mistake was falling in to the cop's trap, "Have you had anything to drink tonight, ma'am?" The only response to a question like that is "Do I appear intoxicated to you, officer?" or perhaps stone cold silence.

KipEsquire|10.12.05 @ 1:23PM|#

She drank and drove, was pulled over entirely properly (i.e., with probable cause) for driving at 12:30am with no headlights, and reportedly failed field sobriety tests (though she of course disputes that).

Did I mention that she drank and drove?

You're mixing apples and oranges here.

|10.12.05 @ 1:27PM|#

I read your article, Kip. And I read the Post article, and saw a photograph of that woman, and so I ask you--do you seriously think one glass of wine will make a woman that size too drunk to drive?

|10.12.05 @ 1:41PM|#

We've covered this ground before, so I'll summarize what I would say if I wanted to debate drunk driving for 100 posts:

The problem is not drinking and driving. The problem is drinking, becoming impaired, driving dangerously, and becoming a safety hazard.

Simple BAC tests and sobriety checkpoints assume the alcohol is the problem. But (excepting perhaps alcohol poisoning at extreme levels of consumption) alcohol never killed anyone driving. Drunk driving -- unsafe, impaired driving -- kills people.

The following standard should be applied to alcohol as well as any other intoxicant, and probably applied to such hated distractions as cell phones and burgers: if an officer observes dangerous or impaired driving, the officer should pull the driver over and ticket them for unsafe driving. The more unsafe and impaired the driving, the bigger the penalty. The end.

|10.12.05 @ 1:59PM|#

KipEsquire, it can be taken for granted that you always have a designated driver if you have a beer at a restaraunt. Right?

|10.12.05 @ 2:23PM|#

Anyone who gets charged with an alcohol (or other drug) violation becomes a "one-stop shop" for governmental agencies and related private-sector parasites. The police, courts, lawyers, DMV, diversion classes and counseling programs each get a whack at your time, money or patience. Sure, we can complain about it and nitpick about eroding civil liberties, or - as the "team leader" at the S.T.O.P. program for wayward speeders told me - we can be thankful that our politicians care enough about our safety to pass so many laws that protect us. I now see zero tolerance as giving many more citizens, who wouldn't otherwise have the chance, the opportunity to receive the benefits government has to offer.

[/sarcasm]

|10.12.05 @ 2:39PM|#

I've forgotten to turn my lights on when I was sober. Sometimes you just don't immediatly notice their off when your driving on lighted streets. Thats an appropriate reason to pull somebody over, but one glass of wine is not a reason to haul somebody off to jail.
Some cops also have a nasty habit of taking things you say or do out of context. If you joke with them you're obviously drunk, and if you don't understand the confusing directions for the tests they try to give you your drunk. Any idiosyncracies you display at all, no matter how normal they are for you, are of course proof that your drunk.
And then on top of that sometimes the officer makes up a few more details just to nail down their case.

|10.12.05 @ 2:47PM|#

And in New Orleans being 62 and in a wheel chair is proof your drunk.

Bruce|10.12.05 @ 2:48PM|#

The driver in D.C. was arrested NOT for having a .03, but because she failed the standardized field sobriety tests. You can NEVER prove your innocense by the result of a breathalizer test. Testing less than the legal limit, or even 0.00, doesn't get you off the hook, it just means you're not intoxicated per se. If you're not per se intoxicated, the state can prove you are intoxicated where you don't have the normal use of your mental or physical faculties by giving the SFSTs such as the horizontal gase nystagmus, walk-and-turn, and one-leg stand.

The cops gave her these tests and said she failed, and her defense was only "I only had one glass of wine and tested .03 so that's bullshit i was not drunk" (paraphrasing). She could have had one glass of wine and 40 bars of xanax, and she'd be intoxicated but her BAC wouldn't be more than the .03. This lady, a lawyer no less (granted she doesn't do criminal defense) is a complete moron for 1) giving the breath test after having alcohol; and 2) saying the breath test exonerated her. A breath test NEVER exonerates you!!!! NEVER!

If she was so certain she wasn't drunk, she should have taken the case to trial rather than accepting the diversion plea.

This article is very misleading because it implies there is a zero-tolerance policy that causes anyone with ANY alcohol, even .01 BAC, to be arrested for DUI. That's not the case. The zero tolerance is arresting anyone who fails a SFST (or presumably blows over .08).

For what it's worth, I practice criminal defense and am no friend of the prosecutor, nor am I a fan of DUI laws. They're idiotic and cast a net that catches far more innocent people than guilty ones. And I blame MADD for all of it. But the female driver in DC was stupid because she told the officer she had alcohol, she gave the breath test when she KNEW she had alcohol in her system, and even stupider when she thought a test less than the limit would somehow exonerate her. Agan, that NEVER happens. A .01 breath test is just more evidence, along with a failed SFST, that you were intoxicated. It is NOT evidence that you weren't intoxicated. (yes it's evidence you were not per se intoxicate, but that's obviously not the state's theory of your crime).

But you have to read page 2 of the Post article before you read all this ... page one does make it sound like she was arrested for having .03 BAC.

|10.12.05 @ 2:48PM|#

Travis - oh dear god, do cops ever lie in their reports! I've been personally involved in a number of things where a police report was written and they are almost always totally different from what really happened.

Also, no matter how drunk you are, if you are driving and get pulled over, when the cop asks you if you've had anything to drink you say "no" and look him right in the eye.

Not that I'm advocating driving while impaired, I'm just saying.

I actually agree 100% with isildur.

|10.12.05 @ 4:08PM|#

Bruce,

Right, she's stupid for being honest, friendly, and cooperative.

Keep on blaming the victim.

|10.12.05 @ 4:45PM|#

"If she was so certain she wasn't drunk, she should have taken the case to trial rather than accepting the diversion plea."

Eh?
_____________________________________________

http://www.washingtonpost.com/wp-dyn/content/article/2005/10/11/AR2005101101968_2.html

Bolton didn't. She balked at the $400 fee and the 24 hours of class time required to attend the "social drinker" program.

"I think it would have been fine if I'd done something wrong, but I didn't," she said. "I had a glass of wine with dinner."

Instead, she hired a lawyer. In August, after Bolton made several fruitless appearances in D.C. Superior Court, prosecutors dropped the DUI charge.

|10.12.05 @ 4:46PM|#

Bruce- So, totally serious here, what do you recommend that someone do if they've had a few drinks and get pulled over?

|10.12.05 @ 4:55PM|#

Shem,

I'm not Bruce, but if I got stopped the first rule is not to admit to anything. If the cop asks you "Have you had anything to drink tonight?" There is nothing that says you have to answer him. In fact, a 'yes' or a 'no' is the wrong answer. The proper thing to say is "Officer, I need to be on my way; am I free to go now?" And if they ask again, respond with "Officer, I know you're just doing your job, but I have nothing to say to you. Can I go now?" It boils down to forcing them to tell you that you can go or that you are being detained. If the latter is the case, flex your rights! Say nothing.

|10.12.05 @ 5:03PM|#

Russ D when you are being investigated for a crime you cooperate with the police at your own risk. Victim status denied.

|10.12.05 @ 5:40PM|#

If you are truly innocent, you will see nothing wrong with being presumed guilty when it comes to DUI's. You must decide: are you on the side of murderers or the side of innocent little children riding in the backseat of a car?

Sage: try that on a cop and you'll get your rightful beating. There's no need to treat a cop that way, especially when they are doing God's work by keeping murderers like yourself off the street.

|10.12.05 @ 6:21PM|#

Ammonium, you're supposed to use the end sarcasm tag after a post like that.

|10.12.05 @ 6:40PM|#

I read your article, Kip.

... you magnificent bastard!

By the way, I've been subject to a sobriety test twice.

The first time, I was pulled over for weaving and speeding in a highway construction zone. (I was weaving because it was dark, the area was completely unlit, and first one lane then the other was closed, slalom-course style, with temporary lane lines that were hard to tell from the normal lines that were slightly painted over. You had to weave to stay in the designated temporary lanes, geez. I was speeding because I was concentrating so hard on seeing the temporary lane markers that I didn't see the temporary "reduced speed - 45 MPH" signs.)

I did fine with the "follow the penlight with your eyes" and the "ABCs" tests, but nervousness and a poor ability to balance made the "balancing" parts of the tests hard to do. The officer eventually decided I was "borderline" and let me go.

The second time I got caught in a mass sobriety checkpoint. I had only had one drink in the past 8 hours -- a rather weak rum and O.J. -- but was even more nervous. I completely flubbed the balance-dependent portions of the text -- standing on one foot, walking a line with one foot in line with the other -- because my knees were shaking. They tried a breathalyzer, but the cop apparently didn't believe the results of the first one. He got another breathalyzer deviced and we did that one too. He didn't tell me what the results were, but at that point he decided he had no basis to detain me, and I was on my way.

(On the way back to my car, I stepped up on one of those concrete parking-lot dividers and balanced on one foot -- my ability to balance returned once I was no longer under police scrutiny.)

The "field sobriety test" (the coordination part, not the breathalyzer) doesn't measure a damn thing except your sense of balance while under stress, and your ability to hop around like a monkey before an audience of police officers.

|10.12.05 @ 6:48PM|#

Stevo - totally. I've gotten out of 2 dui's by telling the cops I hadn't had anything to drink, even though I should not have been driving. The first one, I told them I hadn't been drinking, but they pulled me out of the car. I did the heel to toe, walk the line bit where you also have to turn around and come back the same way. Then I had to stand on one leg and count to 30. Luckily, I have good balance due to playing ice hockey, and I was counting in a very smart-ass tone, trying to show the cop how easy it was. He actually apologised for accusing me of being drunk when I obivously wasn't!

The second time, I just firmly told them I hadn't been drinking, even though they asked a few times, and they eventually believed me.

Again, not advocating driving while drunk, but these were instances from when I was much younger, and they've made me chill out quite a bit in that regard. I'd rather take a taxi.

|10.12.05 @ 6:55PM|#

Who the hell put this law on the books? And why can't we have any laws that revolve around "common sense"? Jesus... laws like this in the hands of cops is just plain stupid (most of whom tend to be grown up bullies with something to prove from my personal experience).

PatrickS|10.12.05 @ 7:03PM|#

Did any else notice that the name of the arresting officer quoted in the article:

Police Officer Fair

You can't make that up!

|10.12.05 @ 8:05PM|#

The proper thing to say is "Officer, I need to be on my way; am I free to go now?" And if they ask again, respond with "Officer, I know you're just doing your job, but I have nothing to say to you. Can I go now?"

Uh, yeah; that's when they turn the dashboard camera off and...

BTW, it should go without saying that telling a cop you've had nothing to drink, and then blowing anything higher than .00%, is going to set you up for some major lesson-teaching/example-making when you go to court, if not before.

|10.12.05 @ 8:52PM|#

what ever happened to the first rule of being suspected of dui, never blow?

Bruce|10.12.05 @ 11:20PM|#

The presumption of innocense is a legal fiction (and it is a fiction) that applies at trial. It does NOT apply during encounters with police. If they're talking to you, they think you did something wrong, and by definition that's the opposite of presuming you innocent.

Never admit to drinking. I don't know why, but it seems EVERYONE admits to having "just one drink" ... it's gotten the point where either everyone is lying about the one drink (i.e. it was really a dozen) or one drink is enough to make the average person's driving imparied enough for a cop to notice. I doubt it's the latter, and so do most cops. If you think telling the officer that you only had one, two, or three drinks (I never hear more than "three beers") is going to make him say "oh okay, that's not enough to make you intoxicated, you're free to go" then you're gravely mistaken, and you need to shut your mouth and keep it shut during any police encounter (if you're this dumb when they're investigating a DUI, you should be horrified of what you'll say if they are investigating a murder).

If you have had ANY alcohol within the previous 36 hours, do not blow. If you had one ounce of alcohol 35 hours ago, refuse. You have nothing to gain by blowing, EVER. The problem is in most states they have the (unconstitutional) "implied consent" bullshit, where your license is immediately suspended for X number of days (usually 180) if you refuse a breath test, regardless of whether you're prosecuted for DUI or not.

So, if you've had a few drinks and get pulled over, don't admit to anything, be courteous and respectful, don't drop things (they'll note that in their offense report, i.e. "suspect fumbled with his license and registration, dropping them several times as he unsteadily attempted to hand them to me"), and don't blow if you've had any alcohol in the past day and a half, because a 0.000001 (it's not that accurate but you get the idea) does not help you, it hurts you--just more evidence you had alcohol in your system... that could have been mixed with pills).

The thing is, if the officer pulled you over because he thought your driving indicated intoxication rather than because you had a broken tail-light, no headlights, etc.; that is, if intoxication was the probable cause for the stop rather than something the officer suspected upon first contact with the pulled-over driver, it's going to be an uphill battle. If you determine you are in one of those situations as the officer says the reason he pulled you over was because your driving displayed indicia of intoxication, and if in fact you have had alcohol, you're in for an uphill battle. And rightfully so... those are the cases where your driving caused the officer to suspect intoxication and you have in fact had alcohol... most juries are going to find you guilty because chances are... you are. Not to say you don't have a good chance of getting off so long as you don't give a breath or blood sample.

|10.12.05 @ 11:47PM|#

Bruce, I know that she allegedly failed the field sobriety tests. Did you also read that they had her start the alphabet at D and end at X, and she thought he said S? The fact is, when a cop thinks your drunk if you've had anything, then he or she will come up with reasons to believe that your impaired even though you aren't.
I don't really know about lying to the cop when you get pulled over for a traffic stop. Lying to police isn't illegal as far as I know, but if they catch you lying they will come down a lot harder on you.

|10.13.05 @ 3:51AM|#

So, I live in Washington, where we have implied consent laws. Short of moving or lobbying to change the law, is there anything I can do?

|10.13.05 @ 4:11AM|#

I mean, supposing I get pulled over.

|10.13.05 @ 5:24AM|#

The driver in D.C. was arrested NOT for having a .03, but because she failed the standardized field sobriety tests. You can NEVER prove your innocense by the result of a breathalizer test. Testing less than the legal limit, or even 0.00, doesn't get you off the hook, it just means you're not intoxicated per se.

So the reason they use BAC -- an objective measure -- is because the Field Sobriety Test was too subjective. BAC provides a way to nab those who can pass the sobriety test, even after a few drinks. It's hard to dispute a number measured by a machine, and even though far from perfect, more fair.

But, the officer still has discretion to declare you drunk -- via the subjective sobriety test -- even if your BAC is under the legal limit.

One way or another, the Police and State will extract revenue from you.

|10.13.05 @ 12:40PM|#

this is why coke should be legalized. give a drunk person some cocaine and they will drive home completely physically unimpaired and be fine. Add a little weed for good measure so they get a little paranoia to keep em even safer.

|10.13.05 @ 4:56PM|#

If you refuse to blow the officer I mean the BAC here in Louisiana you lose your license for a year.

This just goes to prove that if murderers and rapist would only ride bicycles they would never be caught since it seems the only way the police catch someone these days is in a traffic stop. Thus they have cart blanche to pull everyone over for anything they "percieve" as fishy.

So now we have laws that allow confiscation of cash if you have no way to show its yours when pulled over and searched without being arrested or charged along with the new law against being unstable under pressure or perhaps just a clutz. Lord knows their are no shortages of clutz clumsey people out there.

That is what I hate about piss testing. A woman here at my work can run into the roll up doors several times on the fork lift and so long as her piss is clean they throw her back the keys and away she goes. Now what exactly is the point of the drug test if after three times she is clean each time might you not think she is incapable of safely operating the fork lift even if shes sober. Here is what I wonder. If you are the unfortunate person she finally runs down will you really give a rats ass if she passes the drug test or not after the fact. When her test comes back negative does it make your injuries suddenly go away? would you feel better or relieved to know your newly flattened foot was just an act of un-coordination by a person management continued to allow to use equipment they had already demonstrated the inability to use time and again and not some evil inert metabolite measured in quantities below the EPA allowable limit for Cyanide in drinking water?

So when it comes down to it the injured person really doesn't care about all that they just care that their now injured. But hey at least it wasn't another drug related accident for the stat book right!

|10.13.05 @ 5:30PM|#

Bruce, other Travis, Coward,

Count me in the list of poeple who failed a field test after having NOTHING to drink. The test was administrated by the officer who did the training for the New Rochelle PD field sobrity tests. Once I finally got them to give me a breath test and blew a 0.00 they let me go, but getting my car out of impound took two weeks.

What do you think the reaction would be to "I'm sorry officer, but having failed a field sobriety test while stone cold sober, I will not participate in another one, but I will take an objective test."

Thanks
Trabic

|10.15.05 @ 6:33PM|#