NTSB recommends BAC of .05

[Barrister]

Personally, I recommend a BAC of 5.0.

I prefer .005, myself.  All fucking drinkers must fucking hang.

I've got nothing against drinkers.

I do have something against drinkers who drive.

I'm going to post a long rebuttal of Otto's post once the boys go to bed.

[OttoVonBismarck]

Setting aside the 4th for a minute, what about the 5th?

I assume you mean my references to self-incrimination (since I didn't mention the fifth directly.) Instead of setting one aside I'll cover both my arguments at once. Well, as you know under the 4th Amendment there are protections against arbitrary seizures, and a stop is generally considered a seizure. Under the fifth we have a general protection against self-incrimination that is implicit in Miranda and the right to remain silent in custodial interrogations and to abstain from assisting police in their investigation against you. With DUI laws in this country both are circumvented directly.

The Fourth it is more clear cut, the police are supposed to have reasonable suspicion to stop you, probable cause to arrest you. They require neither with "check points" and the SCOTUS acknowledges check points were essentially "obviously" a violation of the fourth amendment. But then they go on to say that "public policy concerns" lead them to decide the check points are okay, regardless.

With the Fifth Amendment, typically you can't force people to tell police stuff, and when you are in custodial interrogation the police are required to inform you of your rights prior to beginning the interrogation. If they do not, anything that comes out of that interrogation is not usable in a court against you. Now, unlike armchair defense lawyers, I understand in many cases Miranda is never read because it doesn't have to be. Many cases are resolved without custodial interrogation, and thus there is no need for the suspect/defendant to ever be read his rights. But in basically all DUI cases, the police officer is permitted to basically ask the suspect whatever he wants whenever he wants, and use that evidence against him in any trial. This is true at the initial road stop (prior to custody so fine in my opinion) but it's also true after he's been handcuffed and put in the squad car and when they are at the police station questioning you.

So you have clear cut custody, and clear cut interrogation (someone is under arrest, in custody, in a police station and being asked questions about what they did that night including what they drank and when)--and that is a custodial interrogation in basically any criminal case under American law. If you're doing that without reading Miranda, anything the suspect says and any evidence derived from what he has said is inadmissible. Except in DUI cases, just like the Fifth Amendment, the SCOTUS has literally said there is an exception to the 5th Amendment's protections when it comes to a DUI. They basically said, "we do not know when you have to read Miranda in a DUI case, but it's later than in other cases." DUI laws in this country are a complete abortion, as is the SCOTUS response to them.

[OttoVonBismarck]

I'm going to post a long rebuttal of Otto's post once the boys go to bed.

I think we've had a few of these conversations in the past but I always look forward to hearing a lawtalker's opinion on this topic. Now, in case it was not recognized I will mention before hand my "anti-civil liberties" jibe was trolling, I'm well aware you have an "appropriate" respect for civil liberties.

[MadImmortalMan]

5th amendment rights don't come into being when the Miranda is read. You don't have to self-incriminate even when you're just chatting about how fast you were going. I know they keep track of everything you say at a traffic stop, however minor it may seem to you. How does a DUI stop differ from that? And why does it matter when Miranda is read?

[alfred russel]

If having a couple drinks is such a public menace, then perhaps we should prohibit establishments from selling alcohol if they have a clientele that typically drives to the location. I know that some people use designated drivers and taxis, but some people don't. Each night, the average alcohol serving restaurant probably serves multiple people a couple drinks before they go out and drive. That endangers the rest of us. And our children.

[sbr]

Won't someone think of the Children?!

[DGuller]

I personally think that .08 is a pretty fucking drunk level.  I've never driven near that, but I've driven a couple of times at what must've been about .05 level, and I was clearly out of my element.  I wasn't driving between the lanes, but a lot of driving habits that usually come naturally didn't come naturally at that level.

That said, at some point, you have to calculate the trade-off between safety and over-criminalization.  American society is pretty unforgiving of even minor criminal records, and only death will bring you redemption.  How far do we really want to go with increasing the risk that a good guy who makes a small and understandable miscalculation gets fucked with for life?

[derspiess]

I personally think that .08 is a pretty fucking drunk level.  I've never driven near that, but I've driven a couple of times at what must've been about .05 level, and I was clearly out of my element. 

You're a lightweight, and a shame to your slavic heritage.

[sbr]

I personally think that .08 is a pretty fucking drunk level.  I've never driven near that, but I've driven a couple of times at what must've been about .05 level, and I was clearly out of my element.  I wasn't driving between the lanes, but a lot of driving habits that usually come naturally didn't come naturally at that level.

That said, at some point, you have to calculate the trade-off between safety and over-criminalization.  American society is pretty unforgiving of even minor criminal records, and only death will bring you redemption.  How far do we really want to go with increasing the risk that a good guy who makes a small and understandable miscalculation gets fucked with for life?

How do you know what your BAC is when you drive?  DO you check it regularly?

[alfred russel]

Won't someone think of the Children?!

I try, but then I think of their backtalk, their clothes, their poor study habits, etc. and it makes me need a drink. This really is a catch 22.

[Barrister]

Fuck that, so you're saying if there is "any impairment" you shouldn't drive? I think that's a bullshit standard and is basically saying, "if you enjoy a glass of wine or a beer with dinner at a restaurant, feel free to not drive home." That's stupid, and basically a weird obsession with the concept of being "perfectly unimpaired." Just about every study ever shows that 24 hours of no sleep means you are as impaired as someone with a .15 BAC--far over the legal limit in the United States. It would stand to reason there is "some impairment" if you've been without sleep for say, 20 hours or 19 hours. Also, some impairment if you normally get up at 6 AM but had to get up at 4:30 AM this morning (and went to bed at the same time.) There's some impairment from prescription medications (and people can routinely get driving under the influence charges dismissed if they have a prescription for the drug that makes them impaired--a concept mind boggling to me.) So sorry, but no. Unless you really think people should not drive under any impairment I see no compelling reason to take what is already a reasonable limit and make it lower.

Also, without getting into a whole thing with you nanny-state types, alcohol and traffic fatality statistics in the United States are poorly done. NHTSA reports anything as "alcohol involved" if either driver of either vehicle had any alcohol in their system--regardless of whether they were legally impaired or not. So if I'm parked on the street at .02 BAC in a street parking area and a dump truck runs over me like Big Foot and crushes me to death, and the dump truck driver is 100% stone cold sober, NHTSA counts that as an "alcohol related fatality."

In 1999, the GAO reviewed many of the alcohol crash figures from the NHTSA and found that there were severe methodological problems with how they were reporting and collecting data. The GAO itself said their statistics fall short of providing conclusive evidence that .08% BAC laws were responsible for reductions in alcohol related fatalities. As recently as 2002 the Los Angeles Times dug into some of the statistics and found that less than 5,000 accidents involved a drunk driver killing a sober driver, and some reviews of the same data suggest it could be under 3,000.

I don't like drunk drivers that kill people or people that drive when they clearly shouldn't. But unlike people in the BB vein who simply are anathema to all civil liberties, I think principles against self-incrimination and "loop holes" to get around the fourth amendment are unconscionable. We have a Fourth Amendment right that prohibits the State from performing suspicionless stops on us, it's as clear as night and day. In Michigan v. Sitz the brain dead fucktards on the SCOTUS said that, "it would appear DUI checkpoints clearly violate the Fourth Amendment, but we think it's really good public policy so we're cool with it." The court that is literally charged with enforcing the constitutional rules, openly admits something violates them, and then says, "so?"

Same thing with implied consent and other laws, it's a loop hole to get around the self-incrimination laws. I'm fine with the administrative DMV laws, and implied consent meaning that you can lose your driver's license if you break those administrative laws. But many implied consent states no longer have the civil driver's license penalty as the consequence for violating implied consent, many have now actually criminalized refusing to provide evidence against yourself. This means in addition to the administrative civil law revoking your license (something I'm fine with, the license is not a constitutional right and State's have a right to regulate the rules for keeping one), you can be sent to prison for terms of 6-12 months for violating a first offense implied consent law. So basically telling a police officer you do not consent to a search = misdemeanor punishable by a maximum term in jail of 6-12 months in many states. Now, practically speaking it usually ends up being 24-48 hours or community service.

Otto, there are a lot of things that could impair your ability to drive.  Being sleepy.  Getting into an argument with your spouse.  Your team just won the big game and you're excited.  Unfortunately all of those are impossible to test for.  A law prohibiting you from driving while arguing with your spouse would be completely unenforceable.

Consuming alcohol is easily tested for, and, if not easily, is enforceable.  As a result a law prohibiting driving a vehicle while impaired by alcohol makes perfect sense.

I commented earlier on the realities of enforcement - who an 80 limit is really a 90 or 100 limit.  And the science is clear that you absolutely shouldn't be driving at 100, and most people shouldn't be driving as low as 50.

You are questioning epidemiology studies trying to tie drunk driving laws to saving lives.  I'm not familiar with those studies.  All I can say is making any kind of conclusive finding when it comes to epidemiology is very tough.

What we have a better idea of is the effect of alcohol on individuals.  We've studied individuals at BACs of 50, 100, 150 and more.  We know that alcohol quite quickly affects your judgment, your reflexes, your attention span, and your fine motor controls.  There is no doubt that at levels as low as 50 most people's ability to drive is impaired - that is it is less then it could or should be.

You start citing some US caselaw.  I can't really comment on it.  I can tell you the status in this country (which does have a quite extensive Charter of Rights which contains most of the same protections as your Bill of Rights).  In this country suspiciounless stops are illegal.  You can't stop a vehicle for no reason.  However it is very easy to HAVE a reason to suspect an impaired driver.  The vehicle swerves within the lane.  The vehicle commits a minor traffic infraction.  Hell the fact the driver leaves a bar at 2am and get in their vehicle is enough grounds to stop a vehicle.

Refusing to provide a sample: it's not self incrimination.  Self incrimination is the right not to give statements or evidence against yourself.  A breath sample is not a statement.  I can tell you that in this country you absolutely do not need to answer any question the police ask of you*.  What breath testing is is a search.  You do not have the right to resist a search.  What you do have the right to do is not be subject to UNREASONABLE searches.  When a cop pulls you over after swerving all over the road, you smell of booze and admit to coming from a bar, a breath demand is a perfectly reasonable search.  I can tell you at least right now, in Alberta, that is where most impaired driving trials are fought.  They challenge whether the office had RPG (reasonable and probable grounds) to make a breath demand.  Once you view the breath demand as a search however it all makes sense.  You can't refuse to comply with a valid search warrant any more than you can refuse to comply with a valid breath demand.




*there's an exception that you are compelled to provide an accident report, but since it's compelled we as prosecutors can not use it in evidence against you.  So the defence of the day is for defence lawyers to coach their client to say "I thought I had a legal obligation to tell police this information" when trying to fight these cases.  I'm not naming names, but absolutely some coach their clients (which is completely unethical and sanctionable if proven).  But this is a small side point.

[Barrister]

5th amendment rights don't come into being when the Miranda is read. You don't have to self-incriminate even when you're just chatting about how fast you were going. I know they keep track of everything you say at a traffic stop, however minor it may seem to you. How does a DUI stop differ from that? And why does it matter when Miranda is read?

Analogizing from Canadian law:

The right against self-incrimination is always there.  If the cop pulls you over and asks if you know how fast you were going you have the right to say "I do not wish to answer that question".

Miranda / s.10(b) of the Charter, is a separate but complementary right.  It says you have the right to be informed of your rights upon arrest.  When the cop first pulls you over you are NOT under arrest.

[DGuller]

I personally think that .08 is a pretty fucking drunk level.  I've never driven near that, but I've driven a couple of times at what must've been about .05 level, and I was clearly out of my element. 

You're a lightweight, and a shame to your slavic heritage.

That is true. 

[DGuller]

I personally think that .08 is a pretty fucking drunk level.  I've never driven near that, but I've driven a couple of times at what must've been about .05 level, and I was clearly out of my element.  I wasn't driving between the lanes, but a lot of driving habits that usually come naturally didn't come naturally at that level.

That said, at some point, you have to calculate the trade-off between safety and over-criminalization.  American society is pretty unforgiving of even minor criminal records, and only death will bring you redemption.  How far do we really want to go with increasing the risk that a good guy who makes a small and understandable miscalculation gets fucked with for life?

How do you know what your BAC is when you drive?  DO you check it regularly?

Estimate.  I count how much I had to drink, and how long ago I drank it.

[Razgovory]

I've been pulled over before on suspicion of drunk driving.  Fortunately there is no law preventing you from driving while bat shit crazy.