DWI Follies

Radley Balko | May 9, 2007

A Lancaster, Ohio man was arrested for driving while intoxicated despite repeatedly blowing 0.0 on a breath test. The double standard here is that blowing a .08 or higher is generally an automatic conviction. But blowing 0.0 can still trigger an arrest.

The police officer says the man failed a roadside sobriety test. That doesn't mean much of anything. The roadside sobriety test is a farce, with no scientific research whatsoever to attest to its effectiveness. A couple of years ago, the Washington Post published a terrific article on the test, including its ridiculous history, the lack of peer-reviewed scientific data to back it up, and how the federal government and police departments across the country have for 30 years been using it to arrest drivers, anyway.

Also, in New Hampshire, a man was arrested and charged with a wiretapping felony for running an audio recording device during a DWI stop. I really can't see a reason why it should ever be illegal to record, photograph, or videotape a police officer while he's on duty.

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Timothy|5.9.07 @ 11:24AM|#

I really can't see a reason why it should ever be illegal to record, photograph, or videotape a police officer while he's on duty.

I actually think all officers should have to be taped all the time. They should be forced to live a life of utter and total surveillance with the videos uploaded to an easily searchable database (like YouTube, say) every 24 hours in one-hour blocks. That'd make them think twice about being total assholes.

Guy Montag|5.9.07 @ 11:26AM|#

Radley, you nailed this post 100%. Good show!

Grotius|5.9.07 @ 11:26AM|#

Fingerprinting has also been challenged.

|5.9.07 @ 11:33AM|#

Subjects came to the lab, starting at 8 a.m., and were "dosed" with either a placebo of orange juice or a screwdriver.

That has to be the worst placebo on record. Did they really think the test subjects would not be able to taste the difference between orange juice and a screwdriver?

A better placebo would be to have one group drink Miller Lite and the other group drink horse piss. Zing!

|5.9.07 @ 11:37AM|#

I really can't see a reason why it should ever be illegal to record, photograph, or videotape a police officer while he's on duty.

Damn skippy. I hope the IJ or ACLU backs this guy up and pushes it. Of course the danger there is that it will reach the Supreme Court, where they will no doubt rule that the police can record citizens (if they have a really good reason like, they want to or something) but citizens may never record the police.

The comments after the article are precious. No matter how many times we see police fuck with innocent people to pad their numbers, some douche will assume that the person being fucked with is at least "guilty of something", then whip all statutes to prove it. And he'll be technically right, as these laws seem to be written so that once you're pulled over, you're guilty. To think otherwise is to be a cop-hating liberal.

I actually think all officers should have to be taped all the time. They should be forced to live a life of utter and total surveillance with the videos uploaded to an easily searchable database (like YouTube, say) every 24 hours in one-hour blocks. That'd make them think twice about being total assholes.

It'd be nice to turn the "If you aren't breaking the law, what do you have to hide?" argument around on them for a change.

|5.9.07 @ 11:44AM|#

I sat on a DWI jury some years ago.

We all tried the sobriety tests that the cops had used on the accused. All six of us "failed" at least two.

We ended up aquitting, in spite of the fact that the guy had refused to blow.

|5.9.07 @ 11:45AM|#

I thought the libertarian stance was that reckless driving should be what's punished, regardless of the driver's intoxication or lack thereof.

According to the charges, the guy was weaving between lanes of traffic, and his lawyer didn't dispute that. If that's the case, I have zero problem with him getting cited whether he was drunk or not.

|5.9.07 @ 11:47AM|#

If you are actually drunk, DON'T BLOW. The cops will try to get you to believe that you have to, or that you will get an even harsher punishment for refusing. The cops are lying to you.

IF you are actually drunk, DON'T BLOW!!!

If you're sober, though, go ahead and blow. Hell, insist on it.

We ended up aquitting, in spite of the fact that the guy had refused to blow.

Good for you. I can't stand when the jurors demand sexual favors from the accused in return for acquittal.

|5.9.07 @ 11:50AM|#

Gimme Back My Dog

I think the pacebo is there for the machine not the guinea pigs.

According to the charges, the guy was weaving between lanes of traffic, and his lawyer didn't dispute that. If that's the case, I have zero problem with him getting cited whether he was drunk or not.

Then cite him for improper lane use or any other moving violations, rather than DWI which is the scarlet letter of traffic violations and huge money maker for the state.

In Illinois, a DWI fucks you over pretty hard what with mandatory meetings to attend (that you pay for) and your houselhold's insurance rates going up etc (my ex's father had a DWI and the whole household had to pay higher rates because they assumed he would be driving any car in the household at times)

|5.9.07 @ 11:54AM|#

Damn, Dubois, you dirty old man. But then, I should have known better than to write that at H&R, shouldn't I? :)

|5.9.07 @ 11:55AM|#

IB,

There is no machine. The subjects were given field sobriety tests.

Crimethink,

If the officer had cited the driver for swerving into another lane(which I was charged with when I nodded off at the wheel), there would be no story here. Instead he chose to cite the driver for DWI regardless of the evidence. Considering the the disparity in penalties for reckless driving and DWI, I'd say it's worth discussing.

SugarFree|5.9.07 @ 11:56AM|#

I had the shortest state trooper ever* give me three different breath tests because they couldn't believe that I had reason to fail the field test other than being drunk. They were stumped.

I had failed the field test due to an injured leg and three trooper cars showed up. Slow night I guess.

*I am 5'10" and he had to tippy-toe to get the Breathalyzer in my mouth.

|5.9.07 @ 11:56AM|#

Chicago Tom beat me to it.

|5.9.07 @ 12:04PM|#

I really can't see a reason why it should ever be illegal to record, photograph, or videotape a police officer while he's on duty

*National Security! ummm.. You'd make the cops scared that a misjudgment while under pressure might come back to haunt them, even though they are merely trying to save our citizens from themselves and everyone else! Everybody makes mistakes! Cops shouldn't be punished for them like everyone else, because everyone else are just trying to break the extremely meaningful law!*

did I get that right?

|5.9.07 @ 12:14PM|#

|5.9.07 @ 12:23PM|#

Well if the sobriety tests were in any way scientific or conclusive about a person's ability to safely operate a vehicle, maybe someone who naturally can't pass a sobriety test due to lack of coordination or tiredness shouldn't be driving anyway? IMHO there are entirely too many incompetent drivers on the road as it is. This is not an excuse for giving someone a DWI, but to me it sounds like a weak argument to me to say that some people aren't very coordinated and very tired when you're trying to protect their right to direct a 2 ton steel and fiberglass cage at 55mph.

highnumber|5.9.07 @ 12:26PM|#

Reinmoose,

As has been pointed out, the penalties for DWI are quite harsh. Reckless driving (or whatever the correct charge would be - DWT?) is quite a different sort of a ticket. They don't haul you in, suspend your license, make you go to AA meetings, etc. for reckless driving.

|5.9.07 @ 12:28PM|#

I recorded a near bust when I was fourteen drinking with a friend and his older brother. That cop read the brother the riot act, but let us go. Had he realized the cassette player was recording, I'm sure he'd have taken us to jail.

|5.9.07 @ 12:36PM|#

I used to drive through Lancaster all the time and, believe me, it's full of dickhead cops looking to drum up fine money for a piece of shit little town that's lost its main source of income (tickets) since the bypass was put in. This is nothing new 'round these parts.

Fluffy|5.9.07 @ 12:46PM|#

Reinmoose, that's stupid.

The coordination needed to drive a car has virtually nothing to do with the coordination needed to walk on an arbitary line [the first field sobriety test where I am].

Not to mention the fact that if I've been driving for an hour or more, I wouldn't be able to walk a straight line due to plain old leg stiffness - but would be perfectly fit to drive, since driving involves, you know, sitting.

|5.9.07 @ 12:51PM|#

Reinmoose-The two skills are not connected. Driving a car well requires hand-eye coordination, a feeling for what the vehicle is doing, and an ability to predict what is about to happen in any given moment. None of those have thing one to do with standing on one foot.

Timothy|5.9.07 @ 12:53PM|#

Do they make paraplegics who drive using those specially modified cars do handstands?

What?

|5.9.07 @ 12:55PM|#

There are any number of reasons one might fail field tests. I was pulled over one night because I was extremely tired and wavering a bit from my lane. Fact is, I had been working WAY too many hours and was dead tired. I actually think I passed the tests. The guys just kind of escorted me to my exit (less than a mile) for safety and let me off with a warning.

I always fail the field test.

Apparently when they ask you to follow a pen with your eyes, they are looking for a jerking / non-smooth motion with your eyes that "typically occurs" when one is intoxicated. (at least that is what the cop who pulled me over on my way to the bar told me)

My eyes apparently jerk even when I am sober and I tend to give "false positives" that make them suspect I have been drinking. I now inform the officer that my eyes tend to jerk no matter what when following the pen and that I'd rather just blow and skip the field test. None have taken me up on it and have just let me go.

Joe

Don't quit your day job. That's terrible advice, at least in NJ.

|5.9.07 @ 12:57PM|#

Reinmoose-That said, I am in favor of much tougher driving tests. Circling the block is not good enough. A serious test would include skid control, emergency braking, and at least a rudimentary test over vehicle dynamics.
It would also help if the folks who teach driving would learn something about those same subjects. I've been told more than once that the first thing to do when braking in an emergency is put the car in neutral. That is stupid, and teaching it is dangerous and irresponible. (You lose engine braking, increase the possibility of lockup, reduce steering control, and give up the ability to use the throttle to avoid the accident.) I won't even get into the silliness of 10-and-3 or (god help us) 8-and-4 steering wheel positions.

BTW-I'm aware that this position doesn't sound all that libertarian. All I can say to that is: third party effects. Driving a car always entails imposing risk on others.

|5.9.07 @ 1:01PM|#

highnumber -
This is not an excuse for giving someone a DWI...

Fluffy -
...if the sobriety tests were in any way scientific or conclusive about a person's ability to safely operate a vehicle...

Seriously folks. If you're looking to take advantage of my obvious and unapologetic contempt for people who can't drive (and even more-so an entitlement system that makes us, in society, feel as though driving is a "right") , at least make accurate reference to things I said. I obviously do not support giving people DWIs for driving poorly (their licenses should be revoked on the spot after the 3rd offense, at latest), and Fluffy makes a decent point about the physical ability needed to drive. But I believe the words of choice were "coordinated" (having to do with precision) and "tired" (having to do with a mental state, not necessarily just a physical state) Care to argue that people shouldn't be able to pass a test designed to tell us if they are of an alert mental state or able to change lanes while not running half of their car off the opposite shoulder in order for us to judge them fit to drive?

|5.9.07 @ 1:02PM|#

Don't quit your day job. That's terrible fadvice, at least in NJ.

Most DUI lawyers in IL say the same thing...
If you are drunk don't blow.

Sure you get a mandatory 6 month suspension, but you have a much better chance of beating the DUI in court if you don't blow.

Also, anecdotally, most cases I read about where the drunk driver got off -- (s)he refused to blow as well.

|5.9.07 @ 1:10PM|#

Number 6 -
You're almost there to it sounding libertarian. Now all you need is the concession that if roads were privately owned, the owners would be able to say who could drive on their roads and who couldn't. They wouldn't tolerate drivers who increased driving times for everyone (people might take an alternate route, owned by someone else?), caused undue damage to the road condition by driving through guard rails. If they did, they might get a bad reputation as a dangerous road to drive on because the people they let drive on it are dangerous to others. That, #6, is how you get a 3rd party effect to be realized and appreciated.

|5.9.07 @ 1:11PM|#

Never blow!

If you are not drunk, insist on a blood test.

The breathalyzers are notorious for giving false positives if they are not properly calibrated. While the police in some jurisdictions do a good job calibrating them, the police in other jurisdictions don't give a shit.

It is hard to generate reasonable doubt when that all too fallible machine lcaims you are guilty.

Of course, it's possible that many jurisdictions do not allow you to request a blood-test, so please don't sue me for malpractice.

scr0d|5.9.07 @ 1:11PM|#

The double standard here is that blowing a .08 or higher is generally an automatic conviction. But blowing 0.0 can still trigger an arrest.

Blowing a .08+ shows that you are intoxicated, and by alcohol. Blowing a 0.0 shows that you are not intoxicated by alcohol. It does not show that you are not intoxicated at all. Unless the DWI law specifically applies only to alcohol, I don't see the double standard.

If you were only wrapping yourself around a tree when you were drunk, I'd say the heck with it, let the idiots take themselves out of the gene pool. Problem is, drunk drivers have a tendency to crash into other cars, people on sidewalks, private property, etc., etc., and so forth. So we test.

We clamp down hard on drinking because it's one of the few things we can test for pretty easily. More difficult to deal with tiredness, medication, doing other things in the car while you really should be concentrating on driving, etc.

And perhaps we should start clamping down on assholes who drive just as strongly as drunken drivers.

|5.9.07 @ 1:22PM|#

rdkraus,

I was given that advice by an attorney who had gotten numbeorus DUI cases kicked, so I'm going to go with what he says.

Giving the cops evidence of your guilt is a bad idea. The penalty for refusing a breathilyzer test is much less - typtically just a suspended license - than the penalty for a DUI conviction.

Of course, the best advice is to drink within walking distance of your house.

thoreau|5.9.07 @ 1:25PM|#

Of course, the best advice is to drink within walking distance of your house.

Zoning threadjack in 5...4...3...2...1...

:)

BORAT|5.9.07 @ 2:52PM|#

Also, anecdotally, most cases I read about where the drunk driver got off -- (s)he refused to blow as well.

In Kazakhstan, if you refuse the blow, Policia take your anoos for good time for everybody.

|5.9.07 @ 3:11PM|#

Agreeing with Joe, after watching a DUI attorney on a local public broadcasting channel, I have been practicing the following response, particularly when I have been drinking:

When asked to perform ANY road side test, the response should be "Issue a citation if you must, but if you have any questions, I'd like to have an attorney present." You are NOT refusing the test, and you have now asked for an attorney. The officer MAY place you under arrest, at which time you have WAY more rights than you do when you voluntarily agree to a roadside sobriety test. Note: in Georgia, refusing the test administered at the station is what can be deemed "guilty by implied consent", but not refusing the roadside test (again noting... you didn't refuse it... you just asked for an attorney).

Along the same lines, practice this for when you are asked if the officer can look through your car, or come into your house: "If you have probable cause to believe that a crime has been committed, you don't need my permission to look in my car/house. If you don't have probable cause to believe that a crime has been committed, then I'd prefer you not look/come in".

CB
Disclaimer: I am not an attorney. No legal advice has been offered. You should contact your attorney for answers to your specific questions.

|5.9.07 @ 3:29PM|#

Refuse to blow used to be the rule in Fl too. But a new law 2000 or so made it so they really fuck with you for refusing and so far the whole thing has been upheld.

But an attorney told me a couple of years ago that more and more tests are getting suppressed so the new advice is blow and hope your attorney can have the test results disallowed.

|5.9.07 @ 7:34PM|#

From the standpoint of protecting your own rights, the field sobriety tests can only hurt you, not help you. When the cop pulls you over they'll ask if you'll consent to do them first. The natural reaction of most people is that, hey, if I pass these he'll let me off. WRONG. They will always ask you to take the breathalyzer afterwards. If you're above .08 then, yes, the assumption is that you're intoxicated. If you're below .08 then the FST will be used as evidence to show 'impairment'.

As others have indicated, the decision of whether or not to refuse the breathalyzer is debatable. In most cases you'll automatically lose your license, at a minimum, for at least a year, and in some states they might haul you off and do an involuntary blood draw anyway. But the FSTs are voluntary. Never do an FST. At most, the cop might mark you down as 'uncooperative' on the citation. But if it goes to court, and you're below the limit on the breath analysis, when the cop contends that you were 'impaired' he's going to be asked what evidence he has for that assertion. Without an FST that's going to be difficult.

|5.10.07 @ 12:45AM|#

I have to agree with Cracker's Boy, due to an unfortunate experience. I was pulled over, and refused to answer the simple question "How much have you had to drink tonight?" My refusal to answer that one simple question resulted in delaying my arrest for over 1/2 hour while 3 more squad cars were brought in to consult, all the while more and more officers trying to get me to answer the same question.

Eventually, even though I passed the sobriety test, they finally figured it would be a good idea to handcuff me (fucking rightly, I might add) and take me 2 towns over to the breathalyser.

Oh yeah, I failed that test by .01, but had I drank one beer less I would have passed thanks to the delay.

This is not legal advice, and not all jurisdictions will act the same way. But, like joe said, never admit guilt, and CB's advice is as good as any.

|5.10.07 @ 12:47AM|#

Oh, on the flip side, I was once even more drunk than the time I got my DUI, and failed a sobriety test (thanks to an at-the-time bum ankle) and got off with a warning. Ah, the good old days.

|5.11.07 @ 12:26AM|#

Anyone read about the McNair DUI arrest.

http://news.yahoo.com/s/ap/20070510/ap_on_sp_fo_ne/fbn_mcnair_arrested;_ylt=Ag2U4jpEncMnOR.bsMJA9a.i24cA

In Tennesse you can be arrested for Driving Under the Influence, as a passenger.

Robert Jackson|5.11.07 @ 7:54AM|#

With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.

George Orwell|5.11.07 @ 8:19AM|#

As O'Brien passed the telescreen a thought seemed to strike him. He stopped, turned aside and pressed a switch on the wall. There was a sharp snap. The voice had stopped.

Julia uttered a tiny sound, a sort of squeak of surprise. Even in the midst of his panic, Winston was too much taken aback to be able to hold his tongue.

'You can turn it off!' he said.

'Yes,' said O'Brien, 'we can turn it off. We have that privilege.'

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