Santa Barbara DUI checkpoints; a misnomer?

Now that the holiday season is behind us, it's time to reflect on Santa Barbara law enforcement agencies' "DUI checkpoints" and, in particular, whether the checkpoints amount to an intelligent use of public funds.  First of all, let me clarify that they really aren't strictly DUI checkpoints.  Both in name and substance, they are DUI and driver license checkpoints.  In California, it is unlawful to have a checkpoint to detect just DUI or just unlicensed drivers.  The second point that should be made is that as much as the Santa Barbara law enforcement agencies, as they band together in the "Avoid the 12" campaign praise the checkpoints as an effective deterrent of driving under the influence, they know better than anyone does that the checkpoints are ineffective at detecting DUI drivers as compared with other methods of detection (namely, "saturation patrols").  I won't take the time to cull and study the hard data, but my sense from having read article after article about checkpoints, and from my work as a dui defense lawyer in Santa Barbara for over 10 years, where I regularly study the checkpoint arrest data made available to me by the Santa Barbara District Attorney's Office, is that checkpoints yield, on average, between one and two DUI arrests each.  Sometimes they don't arrest anyone for DUI at all.  Goose egg.  The number of vehicles that pass through any given DUI checkpoint in Santa Barbara is often in the high hundreds or even over 1,000.

So, if DUI (aka DUI/license) checkpoints in Santa Barbara are ineffective at detecting DUI, why have them?  Well, that's a fair question to ask local law enforcement.  Is the deterrent value really more powerful with a checkpoint than the press releases warning of the checkpoint and reporting the arrest results after the fact?  I don't think anyone knows.  What one might say is that without the news of a checkpoint, the news media wouldn't publish a press release having to do with DUI and the associated dangers of arrest, accidents, etc.  I disagree.  The new news media, in the digital age, reports everything that law enforcement puts out there.  Edhat, the lead news blog in Santa Barbara, apparently does this without any evaluative/editorial decision-making whatsoever.  Santa Barbara Police could send out a press release that the officers issued three parking tickets last Sunday, along with the names of those cited, and Edhat, per their policy (or maybe lack thereof) would probably publish it.  The other local news outlets would not necessarily run a story or blurb in reaction to every single SBPD news release, but I don't think, on the whole, the police would say that they are ignored by the local news media when they issue warnings to the local population, in the form of press releases, about the dangers of drinking and driving and their decisions to increase personnel on patrol.  I've seen many a story, and blurb, about that. 

Pueblo, a local political action group, has spent a lot of time and energy educating the public about what they see as selective enforcement in this realm.  A dirty little secret is that Santa Barbara DUI checkpoints are primarily motivated by two things:  (1) the infusion of state and federal grant money ear-marked for this purpose and (2) the revenue generated by impounding the vehicles of unlicensed drivers.  The fees, fines and proceeds of sale at auction of these vehicles generates a significant amount of revenue for law enforcement, the courts and, yes, the  local tow yards.  Ever since California started requiring proof of legal status before issuing drivers licenses (back in the 90's), more and more people have been driving while unlicensed in our community.  These, of course, are largely the undocumented laborers all around us.  They are the gardeners, the housekeepers, chefs, cooks, dishwashers, painters, skilled and unskilled construction workers, and "heavy lifters" out there.  They scrounge together what little money they have to put food on their tables and buy jalopies to get to their work sites from Goleta, Hope Ranch, down to Montecito and beyond only to have local law enforcement stage checkpoints that make grand claims about protecting the public through this method.  They cite dusty statistics while claiming that unlicensed drivers account for the great majority of traffic accidents to rationalize the economic suffering imposed on undocumented drivers by these checkpoints.  They do so in reckless disregard of the fact that these statistics do not reflect the new realities of who make up this bigger than ever population of unlicensed drivers.  In fact, there is more than enough reason to suppose that undocumented aliens are more careful drivers than the rest of the population because they are often mortified at the possibility of getting stopped for a minor traffic violation and are, therefore, less likely to commit one.  While a licensed driver might get a ticket, an undocumented and, therefore, unlicensed driver might lose their vehicle and, worse yet, be deported and excluded from the U.S. permanently.  It's a good time to discuss further the problems posed by DUI Checkpoints and, in particular, the problems they are directed at solving, the problems they don't really solve (but are claimed to) and the problems and injustices (in they eyes of many) that they cause.

Huge win for truth and justice

Yesterday, in a Supreme Court case called People v. McNeal, the California Supreme Court ruled that competent evidence of variability of alcohol vapor in breath to blood alcohol content across the population may be admitted in cases where there is minimal showing of impairment. This has huge ramifications for innocent people. For years I have been telling people the sad story that there is no justice in California for DUI arrestees who happen to produce more alcohol vapor in the breath and were blind to this reality (of course) when they choose the more convenient method of blood alcohol testing: breath (not blood). Driving with any amount of alcohol in your system is to be avoided. However, convicting people 21 and older of misdemeanors who have not actually driven with a .08% BAC or greater, who are not impaired by alcohol, cannot be tolerated. At long last the Supreme Court is on board. Kudos to the brilliant lawyers who brought about this change!

DUI Cops: Sung Heroes

I would extend a hearty congratulations to SBPD Officer Christina Ortega for arresting more people for DUI in Santa Barbara County than any other cop, except that some of those people are my clients. I don't think they would appreciate my doing so. I do, however, think we need DUI laws and police officers to enforce them. We also need courts and prosecutors to dole out pronouncements of guilt and punishment. We need a lot of things to combat the scourge of drinking and driving that burdens our highways. For instance, we need taxis and other forms of public transportation. We are a society too dependent on cars and, as is vogue to point out, foreign oil. But let's give props to taxi drivers. I can't remember ever hearing about a taxi driver getting any reward whatsoever. They don't get fancy uniforms, badges, pins, ribbons, placques, and other forms of praise. But why not? Don't they prevent DUI too? Of course they do. As one cabbie recently pointed out in an article in the Santa Barbara Independent about the various challenges facing the taxi industry in Santa Barbara, if there were no cab drivers the National Guard would be needed to come in and clean up the mess caused by drunk drivers (or words to that effect). I don't doubt it. Yet on nights when SBPD does not have a DUI enforcer on the beat, we don't see anything close to the carnage that the cabbie quoted in the article described. So, I know why cops get all the praise and cabbies get none: Being a cop is so dangerous and being a cabbie isn't. Right? Wrong. More taxi drivers are killed in the line of duty than cops. The US Bureau of Labor Statistics has consistently counted taxi driving as one of the top ten most dangerous jobs. Law enforcement isn't even in the top ten.

I hereby congratulate the cabbies who keep our streets safe every night from drunk drivers. And, to the fine men and women in yellow, let's be careful out there!

California's 'Nanny' Legislature

In a previous post, I suggested that every time a new law is enacted, we should unenact another one. The California State Legislature doesn't read all of my posts, apparently. Nine new laws regulating driving are being proposed. My personal not-so-favorite is Senate Bill 1361, introduced by Louis Correa, D-Santa Ana (Orange County!? Who would have thought?!). The Bill would require those convicted of a dui (just one dui) to install an ignition interlock device in their vehicles. In this unique circumstance, I'm going to side with the Republican, Assemblyman Bob Huff (R-Diamond Bar) who said, concerning another related Bill, "We're a state that gets around by car. We are a car culture...Couple that with legislators who think government is the answer to everything, and you end up with the perfect storm". Amen. This bill, and others, like the one that prohibits driving with a live animal in your lap (no joke), are an example of the government run amock. Incidentally, driving with dead animals in your lap is going to remain legal; not to worry.

Cars are dangerous objects, weighing mostly between one and two tons, traveling through space at often unreasonably fast speeds; within inches of (and sometimes containing) our children. And there are millions of these objects all around us at all times. People get hurt. People die. It's tragic. However, lets look at the core issue: We shaped a society around cars, and we need, therefore, to confront the basic truth that there are going to be car accidents no matter what. So, what's to be done? You mean besides funding public transportation (i.e., the only change that is going to make a dent in the numbers of accidents)? I'm not sure. But what I am not in favor of is enacting law after law on false promises that doing so will make us any safer. The quote of Benjamin Disraeli, "lies, damned lies, and statistics", came to mind when I read that the CHP reported that 128 accidents in the state last year were caused, in part, by inattention due to an animal in a vehicle. Let's see, how many acts of driving were there last year in the State of California? (33 million (vehicles) times 365 (days in a year) times 4 (excursions per day)) = 48,180,000,000 (aka 50 billion). So, roughly speaking, the chance of being in an accident caused, in part, by inattention due to an animal in a vehicle is one in 376,406,250. But, hey, who said the Legislature isn't working hard to make a real difference in our lives? What will they think of next?

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:

http://santabarbaralawyer.blogspot.com/2007/11/less-dui-law-is-more.html

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?

teens

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.

Bill

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.

The Whine Country

Caught between the CHP, who want to want to discourage drinking and driving and the winemakers, who are saying they want to prevent limos, vans, and buses from bringing them literally busloads of customers (some a little too tipsy for their tastes; no pun intended), are the wine tourists. Interestingly, the winemakers are now speaking out against their most enthusiastic customers; those who show up in limos, buses, and vans to get their drink on. Gasp! Can you believe that people who choose to travel from other parts of the state to taste wine are, for the most part, actually quite fond of getting drunk? Those that make their living selling fermented grape juice, at a healthy profit per unit sold, are really complaining that these genuinely enthusiastic members of their customer base are showing up by the busload.
It's unbelievable. It seems that winemakers should be happy that their sales are now soaring in the wake of the hit movie Sideways, rather than whining about some of the predictable pitfalls associated with successfully peddling alcohol; an addictive and oft-abused substance. And, considering the findings of a recent study at Caltech, which shows that peoples' taste in wine is highly correlated with price, it would seem that the industry might want to count their blessings. While there are some oenophiles who go to tasting rooms to check out the latest releases and actually speak "intelligently" about them as they swirl tiny amounts of them in their glasses, roll them around their palates for a minute or two only to spit them out, the majority of their sales are to the people who like the sensation created by gulping these alcoholic beverages in copious amounts much more than they enjoy the "complex" flavors associated with them.
It is truly unfortunate that the winemakers, in an effort to uphold their phoney image of catering primarily to the sophisticated connoisseurs, are speaking out so stridently against the best DUI prevention mechanism of all: designated drivers.

DUI checkpoints abound...

The City of Goleta just received a grant from the University of California at Berkeley to set up more sobriety checkpoints this year. The applicant cited the CDC's assessment of 23 studies where the data show that "throroughly implemented" checkpoints reduce dui related crashes by 20%. Interestingly, the same studies show that the declines are just as great regardless of how long after the checkpoints the follow-up studies are done. Specifically, if the studies are done less than one year after the checkpoints the drop is 18% and if greater than a year, 17%.
Knowing the substantial and multiple privacy invasions which occur each time a checkpoint is set up (all in the name of reducing traffic fatalities), we can hope that the City of Goleta will excercise some discretion before they become known as the DUI checkpoint capital of the free world. There have already been a number of DUI checkpoints in Goleta since 2004 (24, in fact). As the trend continues, we can expect that the reduction in DUI related traffic fatalities will stay, perhaps, as high as 18%. How many lives will this actually save? Well, none. None, if you consider that Goleta is fortunate enough to have an average of one traffic fatality per year (alcohol related or otherwise). While I'm glad that the funding for these checkpoints does not all come directly from the local taxpayer, I know the local taxpayers are paying dearly in terms of how much their privacy is invaded; and to what end?

Breath to Blood Fallacies of DUI Law

It is the alcohol in your blood that affects your ability to safely drive a motor vehicle. Because of the many causes of alcohol on the breath, only one of which is alcohol in the blood, and the fact that the alcohol content of your breath is, at best, loosely correlated with the alcohol content of your blood, the relationship between alcohol on your breath and your ability to safely drive a motor vehicle is actually pretty weak. So, why are breath testers (aka intoxylizers) in such wide use around the globe for determining levels of intoxication? Economics. It is cheaper and more expedient to test the breath of an individual than to draw and then test their blood by lawful and forensically approved methods. While cheaper, nearly everyone will agree that breath testing is less accurate than blood testing to establish a particular blood alcohol content. How much less accurate is breath testing than blood testing is hotly debated.

The debates center around three fallacies as follows:

The first fallacy is that breath is not blood and, therefore, a breath test is not a blood test. But you knew that already, right?

The second fallacy is that the breath generated in everyones' deep lungs (aka alveolar air) carries the same number of alcohol molecules when their blood alcohol content contains the same concentration of alcohol. This is simply wrong. The "breath/blood partition ratio" that the industry of breath instruments programs into their instruments is one gram of alcohol per 210 liters of breath. However, this ratio of 1:2100 is an average, not the truth about you or me. In fact, this ratio varies between 1:1300 to more than 1:3000 across the population. This difference across the population can and likely does account for innocents getting wrongfully accused as well as guilty people getting away with DUI. More vividly, my deep lung air might contain more alcohol than your breath, even though our blood alcohol content is the same. And, most likely, neither one of us has exactly a 1:2100 ratio at any given time. So, the industries' instruments are not designed for you and me, but for the population in general.

The third partial-fallacy, is that these breath instruments are in proper working order, properly maintained, properly calibrated, operated under ideal conditions (temperature, wind, etc.), actually testing deep lung air, and operated by someone with adequate training, who is, at a particular time, administering the tests in strict compliance with their training.

So, back to economics... After these alarming fallacies were exposed over many years of agressive and skilled litigation of DUI's, resulting in many people being found not guilty of DUI, California's legislature, along with many other state legislatures endeavored to write into law what might be viewed as a new law violation: Driving with a BREATH alcohol content which tests .08% or greater on instruments which presume a 1:2100 blood/breath partition ratio.

The Supreme Court of California affirmed on appeal the inadmissibility of testimony of an individual’s partition ratio, especially when the defendant exhibited clear signs of alcohol intoxication. Here the court looked to legislative intent to discourage drunken driving therefore a conviction based on alcohol measured by breath as amended by statute would stand. People v. Bransford, 884 P.2d 70 (Cal. 1995).

Say it ain't so!? Yes, the Supreme Court favored the California Legislature's one-size-fits all pragmatism over the pursuit of justice in the individual case. Sounds great until you're the one looking at a DUI case based on a Breath Alcohol test result narrowly above the legal limit, doesn't it? (Advertisement: If you are facing such a charge in Santa Barbara, and believe that your unique breath partition ratio may have over represented your blood alcohol percentage, then contact me at 805-892-4922 right away to discuss how you might be able to successfully defend your case).

Beware the scarlet letter "D" for DUI

The Daily Sound recently published a list of persons arrested for misdemeanor DUI on a particular weekend under the heading, "Police were busy over the weekend". While smalltown news outlets may experience slow news days, this practice of putting the names of persons arrested on this class of crimes (even though they are public record) has not been the standard practice of journalists here in Santa Barbara unless the individual is a public figure or concerns the public at large in some way (like, for instance, when the community christmas tree gets hit). So, what's going on here? Is this another isolated case of poor journalistic judgment here in Santa Barbara, or could it be seen as part of a national trend to publicly shame DUI defendants?

Maricopa County, Arizona, often on the leading edge of retrograde draconian punishments (e.g., its most famous effort: tent city), has hatched a new way to "crack down" on the "growing" problem of drunk driving. The County Attorney is putting his name along with the mugshot of DUI arrestees on billboards as a threat to motorists that they too could end up having their likeness published in an unflattering light if they end up getting arrested for DUI.

Whatever the public safety benefit, there is another way of looking at this. Criminal Law Professor Dan Markel, at Florida State College of Law, commented on the practice of shaming of DUI defendants as follows:

"The very goal of shaming is the dehumanization of another person before, and with the participation of, the public. Before we permit democratic institutions to subject an offender to ridicule, scorn and humiliation, we have to ask whether this kind of punishment comports with evolving standards of decency and the dignity of humankind. The answer is clearly no."

The question is, have we evolved beyond the witch-hunting days of Salem, Mass., or are we destined to repeat the mistakes of the past? Is the public shaming of the fictional adulteress Hester Prynne with the scarlet letter "A" fiction? Cutting off the hands of petty thieves and public floggings are likely effective deterrents, but in the United States, at least, we reject these forms of punishments. There is a lot we can do to deter drinking and driving that we are not doing. Less ambiguity in our laws, and better public transportation are dui deterrents that do not simply appeal to our base instinct to humiliate, dehumanize, and shame our fellow human beings.

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.

More reason than ever to Not Drink and Drive

I am mourning for the people who don't get it yet. Maybe you are one of them. You might be one of the many people who still lives in a blissful state of ignorance about just how bad of an idea it is to go out somewhere to drink 2 or more drinks and then drive home. No, I'm not talking about the fact that it would suck if you got pulled over and arrested for DUI. And it would. It's a big hassle, of course. You might go to jail (at least for a number of hours), you might have to hire a lawyer, you might have to pay a big fine, take a class, pay higher insurance rates into the foreseeable future etc. etc. No, that's not what I'm mourning. A simple DUI can function as a wake-up call to some; even the arrest can be enough to make many swear they will never take that chance again. A minority will say they're done with alcohol altogether. Nevertheless, that isn't what I'm really sad about. I'm sad for the people - the hard-working, good, honest, morally and mentally together people, with jobs, families, the works - who just don't get it (yet). They don't get something that criminal lawyers get. They don't get something that d.a.'s, cops, probation officers, parole agents, judges, and state prisoners (and their families) get. What is this big thing to be gotten you ask? It is the thin line between an ordinary everyday existence as a productive member of our society and a lifetime of hell on earth; the hell on earth that one undoubtedly experiences when one is sentenced to spend the rest of their life in prison for MURDER. Yes, I said, MURDER.

How could that happen to me or anyone I call a friend or a family member? Murderers are the people you see on TV with the jumpsuits on. Those aren't really people, right? And if they are, they are weird, strange people, not like me, right? I would never end up there. After all, I've never gotten a speeding ticket. I pay my bills on time. I wear my seatbelt. I don't smoke. I don't talk with my mouth full. I am a considerate person. I go to church. I volunteer. My best friend is a police officer. I'm married to one. Etc. Etc. I'll never be one of those "murderers" in a jumpsuit on TV. I'm just not that kind of person. Think again. Unfortunately, there is nothing about you that says that you will never be driving a vehicle that is involved in an accident where another human being dies, is there? Okay, so let's just pray and hope that when that happens, it doesn't happen after you have put down 2 or more drinks. If it does, you are that person. What many don't understand is the law that says you can't drive with greater than .08 % of alcohol in your blood doesn't amount to permission to drive between .01 and .07%. If you are driving after those 2 plus drinks, you are arguably "impaired" by alcohol. Yes, you could be as low as .04, but that won't make you immune to a murder charge, especially not now.

Gov. Schwarzenegger just signed into law what is now known as the "Ambriz Act" in memoriam to Steve Ambriz who was the chief of staff for the Act's sponsor, Assemblyman Todd Spitzer. Ambriz was tragically killed in a traffic accident involving a woman who had both alcohol and methamphetamine in her system. Prior to this law becoming effective (January 1, 2008), you have to be a repeat offender to meet the fate of being charged with murder for a negligent act of killing someone with your vehicle while "under the influence" of alcohol. This law has just, in a sense, rendered all of us repeat offenders come New Years Day. We won't be treated any different than the guy last month who was sent to prison for life because he supposedly knew better. Now, as people licensed to drive in California, we will have to acknowledge in writing (when we apply for a license or renewal) that driving a motor vehicle is a dangerous activity and, that if someone is killed as the result of our DUI, we can be charged with murder.

I hope this law saves a life. If you think about it, though, it serves to make nearly every single-fatality DUI accident an event where two lives are lost. At least two families will lose a loved one forever for every fatal accident caused by an act of DUI; this is what the law really says. It dramatically compounds the human tragedy in the hope that doing so will influence people's future behavior. There are some that believe that whenever the law gets tough, people take notice and change their ways for the better so that they will not end up in its clutches. I sincerely hope so. However, I, unfortunately, cannot accept this premise. The laws are already very tough. No, we don't impose the death penalty on DUI defendants yet, but we have steadily moved in that direction for decades. In spite of the many laws that have been enacted in recent times to increase the jail time and the fines, to worsen the drivers license consequences, and make it easier to convict someone accused of DUI, DUI still presents an unacceptable risk to human life. The number lives lost each year due to DUI each year are still counted in the 10's of thousands. Laws can help, but they can't completely solve the problem. I challenge law makers to address the problem holistically. Public transportation and education are two very effective and under-utilized deterrents to the behavior.

Unfortunately, California law makers only seem to address the problem by upping the punishments by enacting new "get tougher" laws each legislative session. Supposing they succeed one day in enacting a law which makes DUI an act punishable by the death penalty; what are we then going to do when DUI caused fatalities keep occurring in spite of this law? Let's start now to address the problem from different directions. The potential of the criminal justice system to reduce the numbers of traffic fatalities may very well be tapped at this point. It's time, at least, to start thinking about that. Getting tough makes perfect sense when it is someone you don't know who is in the jumpsuit. I promise you that you will feel very differently about this law when it is you or a loved one in the jumpsuit. Also, it is wrong to suppose that every family member of someone tragically killed in a DUI accident is clamoring for the offender to go to prison at all, let alone prison for life.

I know I'll be talking to you someday. You'll be in jail, in a jumpsuit, and I'll be telling you (through the glass on one of those phones) that I wish that you read this post before it was too late for you and the person(s) that you killed. Consider this your early wake up call.

DUI Checkpoint...Charlie.

At considerable taxpayer expense, local law enforcement routinely sets up checkpoints to combat the DUI problem. The "DUI problem" is best defined as the problem of people drinking (and/or drugging) to the point where they cannot safely drive a motor vehicle such that they will more likely than sober drivers cause traffic accidents; which, as everyone understands, are a huge nuisance, and worst of all, can cause serious injuries and fatalities. Accordingly, there's no argument in favor of DUI whatsoever. The legitimate criticism of checkpoints is that they stand at odds with the notion that we live in a free society. The Fourth Amendment to the United States Constitution states that we should be free from warrantless intrusions by the Government into our private lives. "Your papers please!" is the classic charicature of the agent of a fascist/police state (presumably from another land, and perhaps, another time). It conjures up images of the Soviet Union's 70 year oppressive fascist autocracy, present day North Korea, and the list goes on. The irony of the "request" is that isn't really a request at all. Does anyone who is asked for their papers by a police officer, anywhere, really feel free to say, "Uh, thanks, but no, I'm not going to hand over my papers"?? Try it. This is why checkpoints are, to some, objectionable. It is where mostly law abiding people are essentially ordered to submit to some form of inspection (of their drivers license, eyes, breath, etc.) For every DUI arrest a checkpoint produces, there are perhaps 100 or more warrantless intrusions into the private lives of law abiding citizens. Maybe it's worth 100 intrusions if that DUI arrest really saved a life, but even the CHP will tell you that many people at .08 or more can drive home without causing a traffic fatality. Simply put, not every DUI arrest saves a life. Does the public nature of a checkpoint send the right message to the public such that the overall awareness of the problem will increase, causing people to be more cautious? Perhaps. However, there is no hard data to support this. The sad part is, in spite of the California Supreme Court's ruling in Ingersoll v. Palmer (which allows checkpoints if certain conditions are met), checkpoints erode the most cherished attribute of the United States of America; our freedom. This erosion should be allowed, if ever, out of dire necessity, and never with casual acceptance. So, while law enforcement might define this intrusion as a "no brainer", don't be so sure. To be so sure, plain and simple, is un-American.

AN EXCERPT FROM WWW.SANTABARBARASBLOG.COM
POSTED AUGUST 7, 2007
_____________________________________________________________________

Crime Down over Fiesta (except for a shooting)

Apart from the officer-involved shooting, Fiesta 2007 was absent any other major crime problems, according to a police report. Here are tentative results of police activity through late Saturday, including a comparison to Fiesta 2006:

• 21 felony arrests; a 34% decrease
• 97 misdemeanor arrests; a 4% increase
• 274 criminal citations; a 6% decrease
• 282 traffic citations; a 53% increase
• 18 DUI arrests; a 20% increase

PS: If you are included in the numbers above… go see Bill _______________________________________________________________________

CRIME IS UP AND DOWN.

Every so often the media, on a slow news day no doubt, will read the temperature of the "crime problem". What does it mean? Am I safer or less safe? Am I more or less likely to be arrested? Is humankind becoming more unruly? Most likely, none of the above. More people means more crime. So, we keep hiring more cops. More cops means more arrests. As long as the hiring of cops out-paces the population growth, the busier I will be.

If crime is not actually on the rise (beyond the modest increases one expects as the population grows), more conduct is deemed criminal and cops become more "sensitive" to criminal conduct. For example, it used to be "drunk driving", now it is "driving under the influence" (read: however slight). It used to be "drunk and disorderly conduct", now it is "public intoxication". What does that mean? Well, one cop (still out there) told me "it depends....could be as little as .01". Yes, consuming a third of a beer, according to this cop, is possibly a forfeiture of your freedom and a one-way ticket to the drunk tank. Think about that the next time you are trying to decide between an import or a domestic...