On Second Thought...

Radley Balko | March 18, 2008

Yesterday I posted about Massachusetts Rep. James Fagan's attempt to slash the state's BAC limit from .08 to .02, effectively zero tolerance. I also noted that Fagan is a criminal defense attorney specializing in DWI cases.

Today, Boston Herald columnist Margerie Eagan explains that Fagan's bill seems to be an attempt to point out the absurdities of existing drunk driving laws.

I'm not a huge fan of introducing absurd legislation to make a political point, but if Fagan's objective was to get lawmakers to stop passing knee-jerk DWI legislation, I was too harsh on him.

Comments

x,y|3.18.08 @ 12:20PM|#

It's one thing to introduce absurd legislation to make a political point. It's another if it might pass.

|3.18.08 @ 12:24PM|#

What's wrong with the DUI law we got? It work pretty good, don't it?

|3.18.08 @ 12:25PM|#

He could introduce legislation to re-impose prohibition, too. MADD would probably invite him to be keynote speaker at their annual meeting.

|3.18.08 @ 12:26PM|#

I thought legislation had to be absurd to even be considered by our politicians. Now your telling me it is not a prerequiste after all? Could have fooled me looking back at recent legislation that has passed.

Don't worry about being to harsh on him Radley. After all he is a politician and a lawyer.

|3.18.08 @ 12:26PM|#

but if Fagan's objective was to get lawmakers to stop passing knee-jerk DWI legislation, I was too harsh on him.

And if it happens to pass and Fagan just happens to profit from it....well that's just a happy coincidence.

Forgive me, but if you want me to believe that it's a poltical stunt, you shouldn't benefit from the case where the stunt passes.

NoStar|3.18.08 @ 12:35PM|#

The limit should be .001 if we are truly going for zero tolerance.

|3.18.08 @ 12:36PM|#

Would 0.02 even be within the accuracy of a BAC measuring device? is 0.08?

alan|3.18.08 @ 12:39PM|#

I'm not a huge fan of introducing absurd legislation to make a political point, but if Fagan's objective was to get lawmakers to stop passing knee-jerk DWI legislation, I was too harsh on him.

Thanks, now I have to get the guy a fire extinguisher.

|3.18.08 @ 12:40PM|#

I recall there was an outfit a while back attempting to ban alcohol in order to show the hypocrisy of banning pot.

This is scarier, though, it has a higher risk of passing.

NoStar|3.18.08 @ 12:41PM|#

Or going for a show of absurdity!

Episiarch|3.18.08 @ 12:41PM|#

When the guy himself comes out and specifically says that was what he was doing, and what he would have done to fix it if it did in fact pass, then maybe cut him some slack.

|3.18.08 @ 12:41PM|#

It's one thing to introduce absurd legislation to make a political point. It's another if it might pass.

Yes, in that case, The Onion Effect would come into play.

|3.18.08 @ 12:52PM|#

I am fan of introducing absurd legislation to make a political point. But only if your sure people will get the point and not codify said absurdity into law.

|3.18.08 @ 12:58PM|#

I am fan of introducing absurd legislation to make a political point. But only if your sure people will get the point and not codify said absurdity into law.

Yeah. If someone has to explain to others that the legilsation was absurd to make a political point, methinks said legislation missed the mark or absurdity it was aiming for

|3.18.08 @ 12:58PM|#

Nothing to apologize for Radley. You should never give a politico the benefit of the doubt.

You'll save yourself enormous amounts of time and rarely be wrong.

GILMORE|3.18.08 @ 12:59PM|#

Radley:

Why not email the guy and ask him?

Seriously. Now that the cat's out of the bag, and both you and another paper are covering him, why not give the guy a chance to comment?

|3.18.08 @ 1:01PM|#

Does anyone know what a .08 feels like? Is it a pleasant buzz, or is it more like when the room is spinning and that 170 pound chick at the bar is looking pretty good?

Jozef|3.18.08 @ 1:04PM|#

If Fagan really wanted to mock the legislative process he'd have joined the Alabama senate.

|3.18.08 @ 1:05PM|#

Does anyone know what a .08 feels like?

I'm not sure. I usually pass it so fast on my way to .24, I rarely notice.

|3.18.08 @ 1:10PM|#

What's scary is 'Melanies law' base once again on a case about a cute kid.I didn't read the entire law ,but,it seems it was passed to stop people from refusing Bac and field tests.The 5th amendment be damed.To me it is aimed at people who are not drunk,or have not done anything that would lead a jury to think they are.

Ska|3.18.08 @ 1:11PM|#

That does explain some things.

ilanlar|3.18.08 @ 1:13PM|#

going for a show of absurdity!

some guy|3.18.08 @ 1:20PM|#

Radley's just toying with us now.

|3.18.08 @ 1:21PM|#

Warty | March 18, 2008, 1:01pm | #

Does anyone know what a .08 feels like? Is it a pleasant buzz, or is it more like when the room is spinning and that 170 pound chick at the bar is looking pretty good?

Seriously, it depends on the individual. I have a friend who gets very giddy with half a glass of wine. I've known others who seem OK with a fifth inside them.

BTW. I know a 180 lb chick who looks great. 'course she's 6'3", so the distribution comes out very nice. (Never dated her. I'm 5'10".)

|3.18.08 @ 1:27PM|#

What's wrong with the DUI law we got? It work pretty good, don't it?

When was the last time you read a newspaper article that talked about some traffic accident where the driver was "barely over the legal limit of .08"?

It takes a bit of time, but you may want to repeat an experiment I tried a while ago:

Just as an experiment, I entered '"blood alcohol" "legal limit"' into a Google News search.

The first hit was Radley Balko's article. The next ten articles mentioned blood alcohol levels of: 0.15, 0.204, 0.187, 0.15, 0.14, 0.173, 0.29, 0.31, 0.087, 0.256. The 0.087, by the way, was not an automobile incident at all: it was a fatal work accident where the 0.087 fellow was directing a moving train and somehow got caught between the train and a wall.

The law should probably be changed in two ways:

1. Raise the prima facie DUI BAC back up at least to .12.

2. Retain .08 as evidence of DUI that needs further evidence in order to secure a conviction.

|3.18.08 @ 1:31PM|#

Steve Chapman, Joe and I are in favor of putting $1000 mandantory ignition lock breathalyzer devices on the car of anyone who gets charge witha dwi/dui. This is the official position of all reasonable libertarians because it has been proven to decrease deaths from drunk driving.

It seems this legislator is already in line with our plan of decreasing the BAC limits so that we can force people to buy more of our devices.

Balko, please stop pushing you anarchist ideology you are the verge of paleolibertarianism with your kooky paranoia of roadblocks and peacekeeping tasering devices. If you don't drunk drive then you shouldn't worried about this stuff.

|3.18.08 @ 1:38PM|#

MikeP,I agree with the .12.The .08 though creates a problem.What of the people stopped at a roadblock who would have driven home fine?Or the guy late at night for a tail light?The police operate on the theory one drink is too many.I've always believed that only those driving in a dangerous manner should be charged ,including those on the phone,half asleep,or just talking.

highnumber|3.18.08 @ 1:38PM|#

Does anyone know what a .08 feels like?

Google "sushi pants story"

I'm pretty sure that guy blew a .08 at some point during the night.

|3.18.08 @ 1:38PM|#

MikeP: scroll down the main page a bit and watch the Alabama debate video.

Aresen: Render unto me her phone number.

|3.18.08 @ 1:39PM|#

I'm over Tucker Max, highnumber.

highnumber|3.18.08 @ 1:43PM|#

I had no idea you'd been on him.

Yahoo Answerer|3.18.08 @ 1:43PM|#

What would REALY be an abusurd proposal - just to make a point - would be to require anyone who wants to buy alergy medicine that actually works to sign a book and limit the number of these medications that you can buy. NOONE would go for that one.

If you wanted to make about about the global warming madness you could propose that incandescant lightbulbs be phased out by a certain date. Think Bush would actually sign a piece of garbage like that?

|3.18.08 @ 1:51PM|#

MikeP: scroll down the main page a bit and watch the Alabama debate video.

Heh. Catch and release is cruel.

Elemenope|3.18.08 @ 2:01PM|#

Nothing to apologize for Radley. You should never give a politico the benefit of the doubt.
You'll save yourself enormous amounts of time and rarely be wrong.

[rant] Hey, I got a question. Why. The. Fuck. Bother?

Why care about the Constitution? Or constituents? Or values? The Rule of Law?

If the assumption is always, despite any action to the contrary, going to be "all politicians are scum", do they really have any incentive to behave otherwise?

Hey, I'm all about questioning power and requiring its justifications, but one can make an environment too toxic to work in, too.

[/rant]

|3.18.08 @ 2:04PM|#

The .08 though creates a problem.

That's why I said you need further evidence: Blowing a .08 should not be enough to arrest, indict, or convict.

If seen at a roadblock, the offender would need to fail a sobriety test as well. If pulled over for a taillight, the offender would need to have exhibited impaired driving as well.

Today, one can be arrested for DUI if he exhibits impaired driving even if he is below .08. The prosecution simply has a higher burden of proof. I would suggest that .08-.12 offers some proof, but not all the proof. Further evidence of impairment is required.

|3.18.08 @ 2:06PM|#

"I'm not a huge fan of introducing absurd legislation to make a political point, but if Fagan's objective was to get lawmakers to stop passing knee-jerk DWI legislation, . . ."

something about boiling Irish babies comes to mind; any modern day Jonathan Swift now runs the real danger of seeing his Modest Proposal adopted.

Guy Montag|3.18.08 @ 2:06PM|#

If seen at a roadblock, the offender would need to fail a sobriety test as well.

Might as well make it .000 if that is your standard. Those tests are made to make everybody fail, sober or not.

Guy Montag|3.18.08 @ 2:07PM|#

pgt,

Swift's modest solution day was yesterday.

|3.18.08 @ 2:08PM|#

I think .08 sucks too, but it could be a whole lot worse.

Check out the rest of the world's DUI limits:

http://www.driveandstayalive.com/articles%20and%20topics/drunk%20driving/artcl--drunk-driving-0005--global-BAC-limits.htm

|3.18.08 @ 2:16PM|#

Might as well make it .000 if that is your standard.

As I noted, it already is the standard. If you blow .000 and fail a field sobriety test, you can be arrested, prosecuted, and convicted.

Those tests are made to make everybody fail, sober or not.

Then it sounds like an enterprising defense attorney should have the officer administer it to a juror.

|3.18.08 @ 2:19PM|#

MikeP.if you need a road block to find these people their not much of a danger.I agree that field tests are a joke,my mother or father could never pass one and they don't drink.I doubt most over weight people could either.Besides,why should you take a 'test' if you've done no harm.Not to mention the 4th and 5th amendments.

|3.18.08 @ 2:20PM|#

Warty @ 1:01pm,

Does anyone know what a .08 feels like?

Consult a BAC chart. It says that I'd need 4 12 oz 5% beers to reach .08. For me that means my face is numb and my judgment is shit. I wouldn't be comfortable driving like that.

|3.18.08 @ 2:29PM|#

"What's wrong with the DUI law we got? It work pretty good, don't it?"

That's fucking too good man. I hate laughing at work, but that got me. Those fuckin 'bama rednecks are hilarious.

|3.18.08 @ 2:31PM|#

if you need a road block to find these people their not much of a danger.

People seem to confuse my modest proposal for my actual position.

Do I think that the prima facie limit should be closer to .16? Yes. Do I think that the police should require evidence of impairment before one is stopped or before one is breathalyzed? Yes.

Do I think that .08 is too low? Yes. Do I think that .12 is a better limit than .08? Yes. Do I think that any state legislature will move it up to .12 without leaving some degree of presumption at .08? No.

|3.18.08 @ 2:40PM|#

Warty | March 18, 2008, 1:01pm | #

Does anyone know what a .08 feels like? Is it a pleasant buzz, or is it more like when the room is spinning and that 170 pound chick at the bar is looking pretty good?

Brilliant...just what we've needed, a Beafort scale for BAC

Skoal|3.18.08 @ 2:41PM|#

Sushi pants? Is that related to trouser trout?

|3.18.08 @ 2:41PM|#

MikeP,I've read you comments many times and know what your position is,your always well reasoned.I just get ticked off with a offense that REQUIRES you to give up your rights so the state can make a case.If you need people to self incriminate themselves,warrantless searches and road block to enforce a law then the law is not just.

|3.18.08 @ 2:53PM|#

If you need people to self incriminate themselves,warrantless searches and road block to enforce a law then the law is not just.

Agreed.

Taktix®|3.18.08 @ 3:16PM|#

Michael Pack,

An "I agree with MikeP" is all that is necessary...

|3.18.08 @ 4:05PM|#

If the assumption is always, despite any action to the contrary, going to be "all politicians are scum", do they really have any incentive to behave otherwise?

It's the public's default assumption that politicians are lying, weasely and untrustworthy douchbags that makes them act the way that they do.

R-i-i-i-i-i-i-i-ght.

Robert|3.18.08 @ 4:36PM|#

I remember Sweden or Finland or both has .02, or maybe it's .01.

|3.18.08 @ 5:53PM|#

Does anyone know what a .08 feels like?

As I recall, from a big outdoor concert years ago where the cops had a breathalyzer you could blow in just to see what was what, that .08 is somewhere between a mild buzz and a stout buzz, but not enough to put beer goggles on you.

|3.18.08 @ 6:12PM|#

Does anyone know what a .08 feels like?

I don't remember. My BAC hasn't dropped below .1 in 15 years.

windycityatty|3.18.08 @ 10:23PM|#

MADD is a sad group of grieving fascists. I have no evidence of their fascist affiliation's- but actions speak louder than words. MADD has likely done as much as or more damage to core constitutional bill of right protections than any other lobby I can think of off the top of my head (perhaps the law enforcement/corrections lobby and the War on Drugs?)

Its getting real bad in IL. Representing an African American fella - middle aged with a good job and no criminal background who wears dreads. Hits a roadblock. Instantly out of the car, cops "smell" reefer - no weed in car, no paraphernelia, nada, zip. Just an odor. He is now challenging his summary suspension for refusing to give blood - and get this shit - he went to two hospitals with one of the officers and both times the emergency rooms said they had no drug test kits. He gets a six month suspension for refusing the test and said refusal (unless we can get the case tossed before) shall be permissible against him.

He can be convicted on NOTHING more than one cops word that he smelled pot. Welcome to DUI defense in 2008. Shit went bad in this area once they didn't have to prove or even allege impairment. Its not even an element of the offense anymore. You people do realize- - YOU DONT EVEN HAVE TO BE DRIVING TO GET A DUI???

Cases on the subject are easy to find. And if there is cases to read - that means appellate courts affirmed which means were all phucked. Well maybe not all - but at least the Irish :)

|3.18.08 @ 10:45PM|#

I know a guy who got a DUI for going into his car to look for a CD when he was shitfaced. Or so he said, at least.

Also, I'm tempted to get one of these. Something tells me it would make an awesome bar toy.

|3.18.08 @ 11:25PM|#

Damn, I can't believe no one even alluded to the great "WKRP in Cincinatti" episode. The one where Johnny Fever's reaction time improved as he got blitzed, the other DJ collapsed in drunken laughter and the cop was beside himself.