Less DUI law is more.

Drinking and driving is not necessarily a crime in the U.S. In California, if you are at least 21, you may not drive with a blood alcohol concentration of .08 percent or greater nor may you drive under the influence of alcohol (and/or other intoxicants). It is well known that Sweden has one of the toughest, if not the toughest, drinking and driving laws in the world. In Sweden, to drive with .02 percent or greater of alcohol in your blood is a crime. Even there, it is lawful to have at least some alcohol in your blood. However, .01 or even .019 percent (which is roughly the level a 180 lb. man would reach if he had the alcohol content of one beer immediately shot into his bloodstream with a syringe) is highly unlikely, according to the current body of scientific research on this subject to, by itself, cause impairment of one's ability to safely drive a motor vehicle. But could as little as one beer be an associated factor with unsafe driving? After all, doesn't drinking one beer cause, or at least contribute to, sleepiness (a highly dangerous state to be in while driving)? The answer is yes.

So, why is it that we (and even the Swedish!) are so tolerant of drinking and driving? Is it that alcohol is "a long-standing part of our [and Swedish] culture, and most adults who drink are able to enjoy it responsibly as part of a healthy lifestyle"? Perhaps. However, before one mindlessly signs on to this oft heard rationale, consider its source. The above quote is actually taken directly from the Century Council which calls themselves, "a national not-for-profit organization dedicated to fighting drunk driving and underage drinking formed by America's leading distillers". The leading distillers, with plenty of money to spend getting their message out, are bent on preserving the acceptance of alcohol as part of a "healthy adult lifestyle". Even if we accept that alcohol is a net positive influence on society such that it should remain lawful to consume (unlike a great many other intoxicating substances which have been declared unlawful), do we still have tolerate drinking and driving? No, actually, we don't.

As I wrote in a previous post, the law which states that you may not drive at .08 percent or greater of alcohol in your blood does not amount to official permission to drive between .05 and .07 (or even at .01 for that matter). The numeric "limit", as it were, is almost meaningless in a case which involves bad driving (or an accident, if you can actually separate the two concepts). Consequently, those who set out to drink the maximum number of drinks that their body weight and the DMV chart suggests they may drink without reaching .08 percent are missing a very important legal reality. They are, without realizing it, making an ill-considered bet that they will not be involved in a traffic accident on their way home. But, in a sense, they are being encouraged to make this bet. This, for obvious reasons, puts us all at greater risk of an accident, and them at risk of being arrested for DUI. There is no safe number of drinks to drink before driving. Even one drink, as it contributes to sleepiness, is unsafe. The worst of it is, that by condoning through laws and charts the act of drinking one, two, and even three drinks, as a part of "healthy adult lifestyle", people who might otherwise reflect on whether drinking even one drink is a safe course of conduct to begin with, may just fall back on (or hide behind) the government's standard of what safe drinking behavior is and, in effect, put themselves at risk of alcoholism and everyone at a much greater risk of alcohol related traffic accidents. To many who drink, two or three drinks causes them to approach, if not achieve, a euphoric feeling of invincibility. So, how difficult is it to stop at two (or three)? Too difficult, apparently. This is likely because two or three is just about enough to make most people (excepting those with a very high tolerance for alcohol) stop caring about the threat of arrest, much less the threat of a traffic accident. It doesn't take a scientist to realize that two drinks leads to three (or more).

In writing this post, I do not advocate for prohibition of alcohol in general. I think what people ingest which causes neither them nor anyone else any real harm should not be made illegal. I do, however, challenge the prevailing myth that drinking and driving is consistent with a "healthy adult lifestyle". Drinking in moderation is fine. Driving in moderation is fine. Together, in any amount, they are dangerous. However, even MADD, which is primarily supported by the auto and insurance industries, doesn't strongly advocate for an absolute end to drinking and driving. Their official position is against "operating under the influence", not against drinking and driving itself. So, how did I end up to the right of MADD on this subject? Easily. I don't like the hypocrisy involved in the current system which I am exposed to on a daily basis. The government, and MADD, ask people to get angry at the DUI offender (and in some cases their lawyers) without considering their own contribution to this problem. At best, the government condones drinking and driving and, at worst, it encourages it. MADD, and other anti-DUI advocacy groups, constantly ply the lawmakers with arguments, and other encouragement, to toughen the laws without addressing the hypocrisy. They, in turn, enact these new laws with zeal to convince their constituents that they are "getting tough" on crime. Consequently, we end up with incrementally tougher but ever more confusing laws which, we shouldn't wonder why, are not doing enough to reduce traffic accidents. I believe that we should skip all of the intermediate steps and simply prohibit the dangerous course of conduct with a clear bright line rule. Thousands of hair-splitting hours at the roadside, in the station, in court and in the legislature could be saved. I think we should simply ban drinking and driving and put more money into rail and other transportation alternatives. But that just makes too much sense and just happens to be too unsettling to the automobile, distilling, and insurance industries.

They Didn't Read Me My Rights!

Nary a day goes by when I don't hear this phrase at least once. Thanks to Hollywood, nearly everyone believes, or at least wants to believe, that the sine qua non of lawful and ethical police conduct is where they initiate any arrest with the famous preamble, "you have the right to remain silent yada yada..." It should flow from the police officers' lips as fluidly as those who are paid to say, "welcome to McDonald's, may I take your order please", shouldn't it? The answer is "no". Yes, I am a criminal defense lawyer, and the answer is still "no". Sorry. This deeply ingrained belief, held by nearly everyone, is a powerful example of how the mass media misleads the public. So, was the Miranda Rule contrived by Paramount pictures? No. It was actually written into law by the United States Supreme Court, led by Chief Justice Earl Warren, in the landmark decision Miranda v. Arizona in 1966. It is one of the most, if not the most, significant Supreme Court actions to deter police misconduct. It was designed to do one thing and one thing only. It was designed to prevent the police from forcing people against their will (regardless of their guilt) from confessing to crime. However, it has not, as was intended, put an end to coercive interrogations by the police. But it may have deterred a great number of them. It has brought about some unintended changes and not all of them are positive ones.

Yes, innocent people sometimes confess to crimes they did not commit and guilty people are often led by the police to worsen their circumstances in a way which violates the spirit of the constitution. So, by dampening the polices' temptation to spend hours upon hours grinding someone down through a coercive interrogation, fewer innocents will confess, and fewer guilty people will be forced, against the spirit of the constitution, to be witnesses against themselves. Like many well-intended efforts, the Miranda v. Arizona ruling did not achieve all that it set out to achieve. In my view, its most positive contribution is that it made a few important constitutional rights reciteable, if not precisely understood, by practically every member of our society. It did not put an end to coercive conduct by law enforcement; not by any stretch of the imagination. This is due to the fact that police still feel quite justified in using their inherent power to intimidate, and otherwise manipulate, people into confessing to their crimes, and are not going to let some phony baloney technical rule (written by lawyers, no less!) get in the way of solving a crime. Yes, they do, on occasion, read the advisement, as required by law, but not surprisingly, it has not put an end to confessions. People still confess. And what they don't necessarily appreciate while they are doing it, is that they are destroying every chance they might otherwise have in getting favorable treatment in court.

Confessing is seldom, if ever, going to help someone get a better deal in court. One operating fallacy is that you won't get credit for early acceptance of responsibility if you wait to talk to a lawyer first. That is simply false. The other operating fallacy is that you will make the police angry if you don't confess, and will therefore worsen the outcome. Firstly, if a police officer is angered by someone exercising their constitutional right to remain silent, they ought to strongly consider a change in professions, if not citizenship. The constitutionally guaranteed right against self-incrimination is as American and mom and apple pie! Secondly, your goal is not to make friends with the police officer. Rather, your goal is to avoid incriminating yourself. Let them be angry. That, in and of itself, probably helps you more than it hurts you. Let their emotions get the better of them. And keep your mouth shut. Do honor to our great constitution by not incriminating yourself!

It appears that the Miranda advisement, when read, is not understood as anything more than a familiar police ritual. While the police are saying,

"you have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to have a lawyer present while being questioned. If you cannot afford a lawyer, the court will appoint a lawyer to represent you...",

the listener is most likely thinking something along these lines,

"Crap! I'm really in trouble now. I guess they aren't going to let me go with a warning after all! They believe I did it! I'm screwed no matter what! What can a lawyer do to help!? How am I going to get out of here?! Maybe if I cooperate with them, and tell them what they want to hear, which is that I did it, they will appreciate that and maybe let me go home...or at least stop scaring me"

The most negative impacts of Miranda v. Arizona are as follows:

1. That police think that, by reading the Advisement, they are thereby rendering their arrest "by the book". It gives the police an easy (and cookbook recipe-like) way to legally sanitize the encounter without necessarily honoring the spirit of the constitution.

2. That arrestees believe that the police are supposed to read the Advisement every time they arrest someone and that they must do so early on in the encounter. Because the advisement, if it is read at all, is read late in the encounter, the arrestees form the opinion that they are being mistreated due to the fact that police aren't, according to their Hollywood-based understanding, following the one rule of police conduct of which they have become aware. Accordingly, the individuals develop a bad attitude toward the officers. This bad attitude can hurt the arrestees chances of getting a good deal in court, and also tends to validate negative views police carry toward the larger population. It widens the "us" (the police) versus "them" (the rest of society) gap which, I strongly believe, is the root cause of nearly every instance of police misconduct.

So, when do they have to read the Advisement, you ask? Only when you are in handcuffs or are otherwise confined and they happen to want (or need) you to confess to something.

It's not really your space...

Now that nearly everyone in a certain age range (16-25) has a myspace and/or a facebook page, it is worth reminding "everyone" that what you put on your web page is available for everyone else to look at (and download), whether you want them to or not. And, it is a proven fact that some of these uninvited guests are people who want to take advantage of you in some way. Arming them with certain information can make it much easier to victimize you than ever before. These surfers can find out (from you) what your interests are, who you hang out with, what you like to do in your spare time, where you were last Saturday, where you plan on being this Saturday, etc. It's creepy to think about, isn't it? They can also easily start a dialogue with you, while pretending to be someone that they are not, putting you in an extremely vulnerable position. Whether these creeps want your money, or something more dear to you, they can't be trusted with your personal, if not private, information.

In addition to the creeps are other uninvited guests. Police detectives and other investigators, at an increasing rate, are visiting your web pages. And, no, they are not likely visiting you to catch the web-voyeurs who have no legitimate reason to be visiting. If the police are visiting your site, on the tax-payers' dime, it is likely because they see it as relevant, in some way, to a pending or future criminal case. They used to have to call or meet with people to gather intelligence and develop leads on their suspects. Now they can get far more data than ever before while sitting in their cubicles; and they might get some great photos too. This kind of intelligence can prove devastating to someone who stands accused of something.

If you are facing a criminal charge, or you think you are under investigation by the police, my advice to you is to take your web page off line, at least until the matter resolves. Moreover, be very mindful of what you leave on your hard-drive. The police can easily get a warrant to seize your computer, and what they find they will not hesitate to put on a projection screen in court at your trial or sentencing hearing. Local prosecutors are using this device to foil defense efforts on an increasing rate.

On a related note, be very careful of what you communicate on the web about sensitive and/or pending legal matters...and with whom. For instance, if you are facing a criminal charge, don't email the police on websites like Question Authority on the UCSB Police Website. I'm sure it might feel good to tell them a thing or two. Also, you might suppose that they are there to help. Perhaps they think that they are there to help. However, they are not bound by any law of privilege or code of ethics that would prevent them from using the information you supply them against you in court. In fact, they might even get a big pat on the back from the community if doing so helped solve a major crime. No one would feel sorry for you, "the criminal", if you were stupid enough to seek legal advice from a non-lawyer (much less a cop), on the internet. Think about it.

Criminal Convictions Reduce Longterm Earnings.

One aspect of my job as criminal defense attorney is answering questions about the longterm impacts of criminal convictions. It's not easy. Over the years, I have talked to enough Human Resources (HR) personnel of various employers [often the parents of my clients] to learn that job applicants who have one or more criminal convictions are treated much worse in the hiring process than those with "spotless" records. Depending on the employer, and certainly depending on the kind of work (e.g., public safety, financial, and education) any criminal conviction (even the most innocuous of misdemeanors (e.g., "disturbing the peace")) might destroy one's chances of getting hired. It is often a heavily weighted factor that might cause someone to be pushed downward in the ranks of qualified applicants.

One 2006 study called The Impact of Youth Criminal Behavior on Adult Earnings found that, "[h]aving been either charged with or convicted of a crime decreases earnings by about 10 percent early in a young adult’s working career. However, receiving a conviction when young lowers subsequent adult earnings by about 13%." The study took into account that there are demographic variables that are correlated with both lower earnings and criminality. This was dealt with by comparing the earnings of siblings who didn't have convictions as youths with their siblings who did. Notably, the study was based upon data gathered for more than a ten year period unlike many other studies of its kind.

Adding to this concern is my intuitive sense that the current population explosion, globalization of the economy, and the increasing proliferation and accessibility of criminal conviction data brought by the digitial age are all factors which will increase the negative impact of a criminal past on one's earning potential.

It is difficult, at times, to impress upon people who are not versed in this subject matter to take their criminal charges seriously, and to do what they can to keep their records spotless. Unfortunately, I've talked to (and represented) enough people years down the line who wish they had fought their case now that they know what was truly at stake; their financial well-being. I always encourage these people to pursue any expungement, or related remedy, available to them. However, there is no substitute for avoiding the conviction in the first place.

A quiet Halloween

Compared with 2004, and other busy years, this Halloween celebration in Isla Vista was a quiet one. There were only 228 arrests (compared with as many as 700 in previous years). There were only 200, or so, citations for MIP and other alcohol related misconduct. The best news of all is that no one got seriously hurt. Apart from the fact that some community members are just disturbed by people letting their hair down and having a good time, the purpose of spending over $1,000,000 in law enforcement overtime compensation and other related expenses was to save lives; and it worked. Of course, the dependent premise is that someone would have died had they not all been there. Of that, we cannot be sure. But, better safe than sorry; no question. What is worth thinking about is that as many as 150 community members, who had no criminal records before the celebrations started, will, within the next few months incur convictions for mostly misdemeanors; the most common among them will be public intoxication (647(f) PC)). It is unfortunate that the lack of a sobering center Isla Vista, as I have pointed out in a previous post, in and of itself, is the number one factor why many will now have to do battle in court, or simply accept the fate of becoming convicted of a crime by pleading guilty. Maybe sometime soon the community leaders will make effectuating the State's policy preference to sober-up the intoxicated, see Penal Code section 647(g), a high priority, rather than criminalizing large swaths of the local student population every year at Halloween (and throughout the year). After all, we don't need any more "criminals" in our community, do we?