Tuesday, March 18, 2008

Email to an Eighth grader in North Carolina...

Yesterday, an obviously intelligent eighth grader asked me to answer some questions in furtherance of a social studies class assigment. Here's my response:

Hi Jackson:

I'll see what I can do in the few minutes I have...

1) How do you feel about the consequences about drunk driving? Do you think the consequences should be harsher, or less harsh?

I think that punishments are probably too harsh. At some point, as we approach making all DUI's into attempted homicides, at ever lower levels of blood alcohol, we should slow down and analyze what of the myriad changes to the way we penalize DUI and otherwise educate (even propagandize) the citizenry are actually making the roads safer and fit within present standards of proportional justice. For example, were we to make all DUI defendants eligible for the death penalty, regardless of whether anyone got hurt, and what the blood alcohol level was, you'd see a lot more people using taxis and quitting drinking altogether. And then there would be those hard-core alcoholics, and people who pay no attention to the criminal justice system until the cuffs are being put on them, who wouldn't change their ways. But the bottom line is, how much, in the name of deterrence, are we really willing to tolerate as a society. I think we may be at the breaking point. We're already beyond mine.

For more of my opinions on this topic [which might even surprise you] go to:


2) How do you believe law enforcement should handle the issue of drunk driving? What I mean is what do you think law enforcement should do to prevent the issue of drunk driving?

I'd like to see them exercise more compassion in their approach, and to show a little more courage. In other words, they should be willing to give someone a ride home, or just take their keys away for the night. By being tough as nails, they do the institution of law enforcement a great disservice. In other words, when they show no compassion, people develop a hostile attitude toward police, which is unfortunate for everyone concerned.

3) Why do you think that people decide to drive drunk?

They really don't decide. They impulsively drive home after a party or a night of drinking with little awareness of their impairment. Alcohol impairs judgment and memory. One of the things a drunk person is not qualified to do is to decide whether they are safe to drive. The real mistake is to begin drinking without having already arranged a safe ride home. Otherwise, they are leaving their fate in the hands of a drunk person who will have great difficulty making a decision; much less a correct one.

4) Which group of people do you think drives drunk more often: teens/adolescence, or adults?


5) When I was doing some research, I found out that alcohol-related incidents don't just mean that the driver is drunk, it means that if there is an accident which involves a drunk driver, passenger, or pedestrian, it is an alcohol-related incident. Based on that, who do you think should get punished more; a drunk driver, or a drunk pedestrian?

drunk driver. there is far more potential for a fatality, and serious injury, when you involve one plus tons of metal traveling at a speed in excesss of 3 miles per hour.

6) What percent of drunk driving car accidents have been fatal?

I don't know. NHTSA publishes statistics on this sort of thing. I'm a lawyer, not a statistician.

Good luck, Jackson.


Sunday, March 9, 2008

Blood or Breath?

Often I am asked by those anticipating an eventual DUI arrest, or just curious sorts, whether they should submit to a blood or breath test if stopped. First of all, if you are under 21, you don't have a choice. Those under 21 must submit to a breath test upon a police officer's mere suspicion of alcohol consumption. They don't even have to place you under arrest first. And, when they do - guess what?- you have to take one more test. That's easy. So, what about the rest of us? Well, it's more complicated. You do have to submit to ONE chemical test AFTER the point of arrest. Should you take blood or breath? Well, if you are detained longer than 20 minutes, chances are neither one is going to exonerate you. In other words, either one of them is probably going to damage your chance of escaping a criminal charge, and an arrest-related drivers license suspension. Regardless, you have to submit to ONE of these tests anyway. And I emphasize ONE, because taking both is generally not in your interest; less is more. Fair or unfair, the law says you must submit to ONE of these tests. It is what is known as the "implied consent law" (i.e., the law which states that by driving a motor vehicle in California, one has impliedly consented to submit to a chemical test). Your refusal to submit to a test will result in a lengthy suspension to your drivers license, and your refusal will be compelling evidence of consciousness of your own intoxication which, most likely, will be every bit as effective at persuading others of your guilt as would a number. What's more, they'll likely hold you down and take your blood anyway. So, refusing is just not pretty. Oh, and look forward to an enhancement on the charge for your refusal as well. So, the choice of tests is a lesser of evils choice in most circumstances. And, no, you don't have a right to talk to a lawyer before you decide. A blood test is a good choice to guard against the well-documented and alarming fallibility of breath machines and it does allow you the option of retesting the sample, at your own cost, in a laboratory of your choice. However, a blood test is generally a bad choice if you have any other intoxicants (besides alcohol) in your system. Recent use of most recreational drugs will show up should the government screen for it, as will recent use of many prescription medications. Pain killers and sleep aids are considered intoxicants because, in some cases, they can affect one's ability to drive a motor vehicle safely (particularly where they are combined with alcohol). Keep in mind that marijuana stays in your system for at least 30 days and, worse, you won't find two scientists on the planet to agree on how to measure, much less decide, what amount of the active ingredient of marijuana is too minimal to affect driving. So, simply put, if you smoke weed, blow.
Breath can be a good choice when you know you are drunk (i.e., you strongly suspect you are well over the legal limit). The amount your BAC may drop, if it will drop, on the way to the phlebotomist, is likely too small to make a meaningful difference in the case and, by choosing blood, you are giving the government less impeachable evidence of your guilt. In other words, the immediacy of the breath test (as they are often administered at the scene) will not likely hurt you if your BAC is very high.
Whatever you do, don't ask the police officer for advice. Police generally like the convenience (to them) of a breath test. But, importantly, don't expect the person who is trying their best to gather evidence convict you of the charge to give you good advice.

Monday, March 3, 2008

The Daily Nexus' Police Blotter Gets It Wrong

Weekly, the Daily Nexus attempts to do what any award winning journalistic enterprise does: entertain by exploiting the hard-luck stories of persons arrested. It happens, most regularly, in the section of the paper known as the Police Blotter. Hahahaha! So funny! So funny that alcohol makes people act goofy. So funny that these arrested individuals were publicly humiliated, tethered like animals and taken to a cage. So funny that many of these individuals will have their careers and other dreams sandbagged by one or more criminal convictions resulting from a single instance of poor judgment. I just can't stop laughing. There's a word in German, schadenfreude, which is defined as the pleasure one feels while learning of another's pain. Sadly, the Nexus encourages its readership to indulge in schadenfreude regularly by going down to the IVFP and chatting it up with police to get their agenda-driven and one-sided versions of these arrests then printing them. Seldom, if ever, do we get to read the other side of the story. Often it is the rude, arrogant, over-bearing and, occasionally, violent conduct of the police that just doesn't make it into the paper somehow. Those that have been arrested, and those that witness those same arrests, I can assure you, just as often, have alarming stories to tell of unprofessional conduct by law enforcement which, frankly, just isn't as funny as it is disturbing. And what's really not funny is how these arrests may affect these arrested individuals in pursuit of their academic and career goals. I am not asking the IVFP, or any police officer for that matter, to stop enforcing the law. I am asking them, however, to stop laughing at those that they arrest, and the Nexus to stop asking its readership to join in that laughter.

UCSB is full of future law-makers, judges, and jurors. Should the Nexus consider itself a serious news organization, and not a mere puppet of the UCSB Administration and other powerful forces of the Establishment, it should stop and consider the important role it plays in influencing attitudes of our future community leaders toward police, the accused and the administration of justice. At the very least, it should endeavor to tell more than one side of any given story and stop asking its readership to take pleasure in another person's pain.