Researchers say a breathalyzer has flaws, casting doubt on countless convictions
zdnet.com
zdnet.com
In fact, many jurisdictions have requirements that, above a breathalyzer-reported BAC threshold, different minimum mandatory punishments are levied. Sure, a sober person won't get a result that's above the legal limit most of the time, but someone who's done some drinking and is within appropriate parameters is often labeled as DUI, and could potentially register as above this higher, mandatory-jailtime, mandatory-felony situation.
I've known of cases where the breathalyzer in question has been shown to be broken and decommissioned, yet the people whose numbers were so wildly inflated that they couldn't possibly be accurate have still been convicted using these numbers.
In one case in particular, the judge ruled that the evidence on the unreliability of the machines in general (and this machine in particular) was not admissible for court.
It's about punishment, not deterrence.
This is one issue where I'm firmly on the side of the police until there's evidence that faulty breathalyzers are putting totally innocent people in jail. If you choose to get into the driver's seat of a car, you should not be anywhere near the legal BAC limit. By the time an officer asks you to submit to a BAC test, they've already observed enough behavior to make them believe that you may be a danger to others.
Plan ahead so that you don't have to worry about leaving your car somewhere. Call an Uber or a Lyft. Get a friend to drive you home. Moderate your drinking. Take some time, go for a long walk. On popular holidays in many places, you can even call AAA for a free ride home, even if you're not a member.
Just please don't drive home on the hope that a defense lawyer can argue on your behalf that breathalyzers aren't reliable.
That said I want to correct a few things:
1. In many jurisdictions, including mine, you do not have the option to submit to a blood test. If the police demand a breath test, and you refuse, you will be charged for failure to blow, the penalty for which is, in many cases, the same as being charged with drunk driving. You can't say to the police "can't I just get a blood test instead" to get out of this failure to blow charge.
2. The intoxylizer breath testing devices are heavily guarded, the government and the company that makes them have refused to release the source code or the machines themselves for testing. The one time the court did order the source code to be turned over the company claimed they lost it.
https://tampaduiattorney.wordpress.com/2011/07/26/cmi-lost-t...
Under such circumstances, it is unrealistic to think that real objective and meaningful tests will be done to establish the validity of these machines.
3. I'm not the one telling people that there is a legal limit and they should be below it. I'm telling people not to drink at all. It's the government that made up this stupidity about legal limits and it seems to be the least we can ask for as citizens for the government to stick to the very stupid and ill devised rules they come up with.
If you don't want people to be anywhere near the legal limit when driving then make that the rule and tell them that. Don't make up this mumbo jumbo about legal limits and pretend you have the ability to test for it when you don't because that'll lead many people to inadvertently break the law.
> If the police demand a breath test, and you refuse, you will be charged for failure to blow, the penalty for which is, in many cases, the same as being charged with drunk driving.
Question for a lawyer then: How does this affect international travel. I know that you can't go to Canada if you have a DUI on your record, and other countries can be even more scrutinious. Is a Failure to Blow considered the same as a DUI to countries like those?
Just don't drink and drive, that's the only sure fire way to not get accused. Especially for a limit you can't test yourself without spending ~$100USD to get a personal tester which they don't guarantee the accuracy of.
We're trying to enforce laws on an uneven playing ground (a limit the average citizen can't test against until it's too late).
Breaking the legal limit is usually sufficient but not required for DUI; DUI laws existed before legal limits and addressed being under the influence. Legal limits were added on top of the base rule to create a bright line where there would be clarity of guilt, but AFAIK in most places they did not replace the base rule, just added on top of it.
I once was given a BAC after being stopped for a faulty tail light on a Saturday night. I'd had a single glass of wine two hours before, and at that point was completely sober, wide awake, and paying attention to my driving. The officer didn't mention any other reason for stopping me, and seemed disappointed when my BAC test was clear.
This is way more common than it should be. Dash cams have finally helped this situation somewhat, but when I used to work late in college I got pulled over way more than I should have for BS reasons. "You touched the white line", "Nope". "You were swerving", "No again".
Finally a judge started throwing out all DUI cases without a dash cam and the police who dragged their feet for years after being mandated to install dash cams suddenly got it done.
No one should ever be driving after drinking, but the police also need to follow the law.
That's the goal, but cops also sometimes just like to exercise their power and arrest people who don't show signs of impairment. Or use that as an excuse to search the car and try to find a speck of weed. I certainly don't trust an officer to accurately gauge something so nebulous. Hopefully in a few decades we'll all be in self driving vehicles and DUI will be a thing of the past.
You have to go to the station anyway, the Portable BAC they use roadside is inadmissible in court, they give you a more accurate test at the station if you fail roadside. Having a nurse available to take a blood sample instead shouldn't be unreasonable.
That's my personal position on this. It's consistent with my own moral framework. I get that there's a valid counterargument from a position of law-and-order morality.
But I've also had friends who were first responders to a horrifying drunk driver collision. Trying to keep innocent people from bleeding out on the side of the road messes you up for a while. It's not a victimless crime.
You can get from .08 to .06 by walking around for an hour. If you think you might be close enough to borderline, go take a walk.
As said above, if you think this limit is too high, fight to have it lowered but please don't blur the lines of the law based on your personal convictions.
Do you feel the same way about getting ticketed for Speeding when going 55mph in a 55mph zone? Going 56mph is technically speeding you know and 55mph is very close to 56 mpg. 55mph and 56mph are arguably equivalently dangerous.
A limit is a limit. It's a discrete, unchanging, unambiguous, line in the sand that once crossed warrants consequences. That's why we codify these things into laws.
One issue is that some places set a very low standard, one lower than evidence shows to effect driving ability. Being borderline with unnecessarily low limits means the person is not impaired.
This isn't what the science says, and you can't "think you might be close enough to borderline" because you don't have an internal BAC meter. All in all this is extremely bad advice.
Umm yeah - science and personal experience say it really is. Do you have a source for your claim?
What if that walk takes you from .6 to .8? Oops.
"A person who has not eaten will hit a peak BAC typically between 1/2 hour to two hours of drinking. A person who has eaten will hit a peak BAC typically between 1 and 6 hours, depending on the amount of alcohol consumed."
Walking does nothing, but giving the alcohol more time to absorb can take you from safe to unsafe.
Unless breathalysers detect alcohol when none exists, then I think knowing they are "10% eitherway" is a good caution.
Quite a few of the laws aren't written that way.
A 0.08 is dead to rights guilty--generally a DWI--driving while intoxicated.
However you very much can be convicted of DUI--driving under the influence--even if you blow significantly less than 0.08. This is especially true if the police also have you on video doing something stupid or speeding excessively.
I am trying to understand if this is an economic / urban / rural question or is really about a bright line between legal and illegal
if you're within the margin of error for measuring equipment that's just part of life. Applies to radar guns, applies to breathalyzers, and every other technical solution to a legal issue.
also the acceptable error on the GC/FID testing used for blood alcohol is 3-5%, depending on lab, etc. so that's 0.004. if you managed to get the cop's attention at 0.083, and you're drunk enough they bother to arrest you, instead of trying to find someone drunker to spend 2 hours arresting, the DA is still probably going to offer DWAI or less for your 0.083 unless you've got a long history of drunk driving.
On one side, you have people for whom right and wrong is defined by the law: if it's legal, then it's right, and if it's illegal, it's wrong. Therefore as long as people are making decisions that are consistent with law, they are fine.
On the other side, you have people for whom right and wrong is a fuzzier judgement of consequences somewhat independent of the law. If it's dangerous but legal, it's still dangerous. If it's illegal and not dangerous, then maybe it shouldn't be enforced by law.
It's sadly unlikely that either side is going to find any agreement with the other.
I'm firmly in the second camp on this particular issue: I don't care that the law says that anything up to .08 is okay; if you're close enough to .08 that a marginal error in a device could make it illegal, then I wish you weren't driving. Hell, if I'm out, I'll give just about anyone a free ride home, and take them back to their car in the morning, if that's what it takes to keep them from driving "a little bit" drunk.
That’s not what’s happening at all. No one here is asserting that .08 is some moral boundary. What’s happening is that some people here think that people convicted of criminal acts should be guilty of those acts as defined in the law. Other people think that pretty close is enough to declare someone guilty of a crime.
.08 is the legal boundary. If you’re driving at .07, you have not broken the law.
> I'm firmly in the second camp on this particular issue: I don't care that the law says that anything up to .08 is okay; if you're close enough to .08 that a marginal error in a device could make it illegal, then I wish you weren't driving.
That’s lovely but “I wish you weren’t driving” is not the law.
Usually, it's the boundary between “defintiely DUI [or DWI, where these are distinguished] by BAC” and “quite probably DUI by being under the influence, for which BAC may be supporting evidence”.
> If you’re driving at .07, you have not broken the law.
That's inaccurate.
0.08 is the legal boundary for per se influence of alcohol. If you aren’t at 0.08, you must be provably impaired by alcohol which is a different legal test. (0.07 could be supporting evidence, but so could the fact that you were at a bar, even if a BAC test was never administered.)
To my understanding, very few DUIs are prosecuted for alcohol DUI with BAC below .08. Even fewer are prosecuted successfully. The BAC of .08 is enshrined in law as the point of “intoxication”, making it difficult to prove the “influence” of alcohol below that level.
> That's inaccurate.
It’s exactly as accurate as saying you have not broken the law driving at 0.01. You might be guilty of DUI at any BAC theoretically, if you demonstrate impairment.
This is the only fair and democratic way to handle things. The law is defined by a legislature which (in theory at least) is responsive to public opinion on what should be considered acceptable behavior.
This does not mean the law is always correct about what's moral. There are many legal behaviors that I think are immoral, and many illegal behaviors that I think are morally fine. But if we put people in jail for doing things that somebody thinks is immoral, without going through the democratic process to make that actually illegal, then the rights that people have in a democracy are being infringed.
Then you should be advocating for a lowering of the limit. If by your judgement anyone who blows a .07 is above the limit, than the limit becomes .07.
Here is why I think your logic is broken; If we lower it to .07, I assume you call anyone at .06 guilty, no? It is "close enough". So if we lower it to .06, you'd call .05 guilty, rinse and repeat.
I am totally for lowering the limit to whatever we find most safe. Yet, the law needs to be set and followed. Fuzzy laws ruin lives.
Every technical solution will have a margin of error. that needs to be small enough not to invalidate the law.
If 0.08 is the limit, and you blow 0.08 (or within the margin of error to shown up over 0.08) then you broke the law.
The law is not "your actual real world BAC", its your "measurable and demonstrable BAC".
This applies to everything, from radar guns to other technical solutions. Margin of errors exist and always will to some degree.
If the devices are outside a reasonable margin of error, then the state and/or manufacturer should be responsible, but there needs to be a known and accepted margin of error within the framework of the law, because frankly to do otherwise is just ignoring reality
Ie, if 0.08 is the limit with a margin of error of 0.01, and you allow people to be in the margin of error, doesn't the limit simply become 0.09?
What if 0.08 was decided as the limit with a margin of error from 0.07?
At the end of the day, don't we always have hard limits? Whether the hard limit is before or after the margin of error seems to be a moot point in this discussion. And deciding that margin of error is a different discussion entirely, one mainly involved with the individual BAC testing units, effectiveness of BAC, etc.
edit: I feel like the down voter(s) are missing the point of my post. I was replying to someone in context of them saying that you cannot set a hard limit on which something is illegal. That is just silly. If a speed limit is 30mph with a margin of error of 2mph, than 33mph is over the speed limit. That is a hard limit you can absolutely set.
It does in terms of "reality overrides perception" and "what we want doesn't change whats real". Our ability to set hard limits in law doesn't change the fact our ability to actually test for those limits always have some margin of error.
In this case, the argument is the devices may be wrong because they're up to 6-10% off in some cases. Is that enough to invalidate measurements because of the margin of error? That's something the law doesn't deal with properly, but it really should.
What is the maximum margin of error allowable in a device used to determine legal status of an individual (in terms of drunkeness in this case)? without that being specified in law, what is the biggest margin of error socially acceptable? 0 is not practical or possible, so it has to be some sort of number.
You are completely correct, margin of error exists. That doesn't change the fact that if you blow beyond the margin of error, you are guilty.
There will always be a hard limit beyond the margin of error. I feel like you're arguing against that. It's confusing to me.
> 0 is not practical or possible, so it has to be some sort of number.
No one said that, myself included. This feels like a straw man.
The actual legal limit matters. You don't have a legal expectation as to the margin of error of the measurement.
You should have Legal expectation that whatever measurement is used, will only be considered evidence of a crime if the measurement exceeds the legal limit by more than the margin of error for that measurement.
No, you should have the legal expectation that the measurement error data will be available to you as a defendant, and usable as exculpatory evidence. OTOH, generally the law does not require each piece of evidence to be highly dispositive in isolation, only that it tend to show the fact for which it is offered is more likely to be true than it would be in the absence of the piece of evidence.
And in many (most?) jurisdictions being over the BAC limit is a sufficient but not necessary condition for DUI. E.g., in California it is illegal to be either under the influence of alcohol, or over the BAC limit, when driving. A BAC over 0 but under the limit is supporting but not dispositive evidence of being under the influence, so certainly a BAC above but with the MoE of the limit would also be.
I agree completely, and that is exactly what my point was.
If the hard limit is 0.09 because it's 0.08 with a margin of error of 0.01, then you're getting a ticket at 0.09.
Are you saying anything different?
The OP I replied to (originally) was saying that a 0.7 was "close enough", that you are in the wrong for doing that, etcetc. Of which, you cannot write laws around.
This conversation has nothing to do with measurements, this conversation has nothing to do with margin of error, this has to do with written laws vs moral laws.
I'm having to defend a nothing debate lol.
... This conversation is ENTIRELY about measurements and their margin of error. This conversation is specifically about how the margin of error relates the legal limit.
The parent was making the argument that the acceptable margin of error for a measurement device should be encoded in the law and measurements outside and thus a .08 limit with a .01 margin becomes an effective .07 limit.
You made the erroneous claim that margin of error didn't matter. It does: the margin of error needs to be codified in law if the limit is the limit as measured (as "uhhhhhhh" suggests). If the margin of error is not codified in law, then the limit must be exceeded by the margin of error for the measurement to provide evidence of law breaking.
You then made the erroneous claim that it doesn't matter if the margin of error is applied "before or after" the limit. (basically my stance vs "uhhhhhhh" ?)
I think it matters a great deal. If you mandate the margin of error in the law, then you make it impossible to make measurments in certain sub-optimal conditions (like in the cold) even when the subject is well beyond the limit. If instead, measurements come with an associated margin of error depending on the measurement device, it's configuration, and the measurement conditions, then you can use a variety of measurement techniques and make sure you can chose those, and only those, who you have clear evidence violated the law.
I disagree. The person I was replying to was indicating that 0.7 should make you feel bad. They were not saying that because your 0.7 might actually be a 0.8, they were saying that because morally you're playing with fire.
Margin of error does not matter in the discussion we were having, of morals vs law. Morals and margin of error are two completely different discussions.
> You then made the erroneous claim that it doesn't matter if the margin of error is applied "before or after" the limit.
How does this matter to morals? I said it doesn't matter before or after, in the context of how it affects the morals of 0.7 being morally incorrect.
This was a moral discussion, ya'll went sideways with it.
0.7 will make you feel dead, most likely.
It's perfectly reasonable to say you want 0.08, but you are willing to accept the margin of error as well.
Literally, I do not even get what you're arguing. The person I was replying to was fundamentally different than a margin of error, so first off this is already totally sideways. But fine, if you want to talk margin of error, lets do that. I don't get what your point is. A 0.09 because it's 0.08+0.01 is just 0.09. You get a ticket if your past the margin of error.
Are you saying something different? What the hell is going on lol.
You can also hold the stricter standard as what you believe is your personal moral obligation and simultaneously believe that the looser legal standard is what you can morally apply to others.
This is true for many issues, such as free speech. I might think what you are saying is immoral (due to my personal ethics) while also thinking my censorship of you are saying would be immoral (and illegal, due to the legal framework I live in).
What you're doing right now is giving the police even more ambiguous grey area to selectively enforce. And you're encouraging our laws to be inconsistent with their application.
I suspect this is a rural v urban issue but i am not sure - can i ask where you live and how easy is it to get to a bar without a car?
The DUI laws mostly don't say that, anyway.
Then change the law so .07 instead of .08.
Deviations from the speed of other traffic are what increase danger. You're just less liable if you're going slower than everyone else.
Also, from their appendix: "Drivers are considered to be alcohol-impaired when their BACs are .08 g/dL or higher. Thus, any fatal crash involving a driver with a BAC of .08 or higher is considered to be an alcohol-impaired-driving crash, and fatalities occurring in those crashes are considered to bealcohol-impaired-driving fatalities."
Too bad, that makes that particular study sort of useless for arguing the consequences of drunk driving.
The reality is that you are deferring to the law when you assume that 0.08 is proven unsafe. And that’s a pretty reasonable assumption. 0.08 was supposed to be established as the level at which essentially everyone demonstrates some level of impairment (whether that’s actually true, I don’t know). But you have no evidence that 0.07 is unsafe. You lack scientific evidence and you also lack the ability to defer to the law. So your belief is arbitrary.
You’re essentially saying that .08 is definitely unsafe because the law says so, so 0.07 must be unsafe, too, because it’s close. But this is unreasonable. If the law defines safety then defer to the law. Otherwise the law could be .07 and you’d be making this argument about .06. And so on.
My "admission" was that I could not find any data to support your claim that ".07 isn't likely to kill anyone either".
The NHTSA's statement on why .08 was chosen: https://one.nhtsa.gov/people/injury/research/pub/alcohol-law...
A TIME article considering whether .08 is too high: http://content.time.com/time/nation/article/0,8599,2025301,0...
The National Academy of Sciences recently recommended lowering the limit to .05: http://www8.nationalacademies.org/onpinews/newsitem.aspx?Rec... (there are a few links to pdfs at the bottom with more details)
My original comment was a plea for people to reconsider driving while "just barely legal", because it wasn't worth the risks. You want to know if there is actually any risk. Well, here you go.
There are a few problems with that.
1. You're not always going to agree with the way the police incorrectly apply the law and police culture and procedure is harder to change than statutory limits.
2. The margin of error works both ways. It lets some people who are over a .08 go free. And it punishes some people who are below a .08.
We should strive to remove arbitrariness from our justice system. It's not always possible but we should try for it anyway.
Yes, I think the limit should be lower.
No, there's not a chance in hell I personally will be able to do anything about that.
Yes, I understand the value of clear, fair, equal treatment under law.
Yes, I get that police abuse is a problem in many areas.
No, I can't be moved to care about this particular issue, because the people affected are too close to the legal limit to not be a danger to others.
I really regret my original comment on this topic, what was supposed to be a straightforward plea to not drive "buzzed", which would bring with it the added benefit of not finding yourself in a situation where a device with a small margin of error might get you into legal trouble.
I had no reason to expect that it would ignite a flamefest.
I kind of wish ~dang or somebody would just nuke my comment and everything under it, since there's nothing of value here.
Anyway, this is my last on the subject, since it's just adding to the noise.
>No, I can't be moved to care about this particular issue, because the people affected are too close to the legal limit to not be a danger to others.
That's the problem. You don't really understand the value of equal treatment under the law. If you only care about equal treatment when you personally think the person deserves it, you don't really care about it.
Not legally.
> "By the time an officer asks you to submit to a BAC test, they've already observed enough behavior to make them believe that you may be a danger to others."
Not true at all.
I know of numerous instances where people were required to blow into the breathalyzer with no prior observations related to substance impairment, or even a field sobriety test.
I personally had an instance where I was stopped for 'suspicion of speeding' where the officer got no high reading but thought I was going fast (possible; I'd seen an odd reflection off to the side of the road and braked a bit), I had been driving for hours and had consumed zero drinks for days, but he told me to sit in his cruiser and do the test. Seemed disappointed.
So a bad testing device could be a serious issue.
I get very worried whenever "evidence" is taken far away from the offense. I've even heard about people who, after being arrested/released based on breath alcohol, are allowed to continue drinking and then have their blood drawn.
If you are stopped and are given a breathalyzer, pass or fail, do not drink anything for at least 24 hours. You never know what the cops are thinking. They may be back. They may test you again in 15 minutes. Don't go back to the party. If the cops test you, your night is over.
Yep. This. I was on jury duty last year for a case involving this exact scenario. The defense lawyer was able to successfully argue the case "to a reasonable doubt" based on this basis.
Don’t drink and drive tho.
Basically the rule is "if you've had any alcohol in the last 24 hours, don't drive". Most people think you can have one or two and drive home, but you can't.
Completely untrue - I've been a 'subject' in police department intoxication training, and have watched the BAC of myself and my fellow 'subjects' drop rather predicatbly over the course of an hour or two from 'going to jail' to 'probably shouldn't have driven but not over the limit'.
> The legal limit is very, very low, to the point where reasonable behavior is illegal.
Also untrue for most people - yes, if you are a high-function alcoholic you may be more able to perform basic tasks while at .08 or .1, but most people are significantly reduced in capcity when actually tested (not just 'I feel fine').
This all depends on your body weight, your sex, your genetic ability to metabolize alcohol, what you're doing, and what you've eaten. It's also important to say most people don't carry around a field breathalyzer, so you can't tell how many hours you'll need to get under the limit because you have no idea what your BAC is.
Very roughly true.
> If you have two drinks, walk for 6 hours and get behind the wheel, that's also a DUI because the time for your BAC to go down is more or less "all night".
No, it's in the neighborhood of 1 hour to drop 0.01% from most sources I can find.
EDIT:
> The legal limit is very, very low, to the point where reasonable behavior is illegal.
No, slamming two drinks and hopping immediately behind the wheel is not even approximately reasonable behavior.
Those are general guidelines. If you think they will apply to you then you're gambling. There are so many factors that influence this that the only safe thing to do is just not drive if you've been drinking at all.
> No, slamming two drinks and hopping immediately behind the wheel is not even approximately reasonable behavior.
Hey I'm not at all saying that. I'm saying if you have two beers in an hour -- which is completely reasonable -- and then drive home, you're probably driving drunk under the law.
Well, actually 0.01% / 1 hour is a sizable cushion on top of the general guidelines, but sure.
> If you think they will apply to you then you're gambling.
Well, yeah, just like I'm gambling when I assume that I won't spontaneously development autobrewery syndrome and be intoxicated without drinking anything.
> There are so many factors that influence this that the only safe thing to do is just not drive if you've been drinking at all.
That's only a little less of an overstatement than to says that the only way to be safe from DUI arrest is never to drive at all.
This is true. In most (all?) states, failing a roadside sobriety test is cause for a DUI arrest, and those are essentially subjective. Furthermore they're administered under extremely stressful circumstances, usually the terrain is uneven, cars are flying by, there are a dozen cops, it's nighttime and the lights are blinding, etc. If the officer thinks you're under the influence of _anything_ they can arrest you, with or without a test. The best defense you have against this is to never get in a car. The next best thing is to never to drive after you've had a drink in the last 24 hours.
I'd personally rather the US government pick the best solution, not the most open source one.
I would hope the best solution is open source, but the gov't shouldn't be forced to sacrifice quality.
However, I can agree that any Software/IP developed via public funds should definitely be open source.
Comprehensive testing by an independent lab gets us partway, if all the results are available to the defense, but it's better if we can both do black box testing and examine the code.
I'd personally rather the US government consider trustworthiness, which is only afforded in open source projects, to be an important criteria for "best solution."
Forcing the defense to ask for it in discovery for every single case seems somewhat counterproductive. If your code is being used to put people in prison, you don't get to keep your trade secrets privilege.
But they are huge machines kept at the police station after you've been hauled in after failing the normal road side breathalyzer test.
But in the general case this is quite simply not possible. It might be very accurate in the controlled case of a subject who hasn't consumed anything in the past hour but these breathalyzers are not being used in a nice controlled environment. The concentration of alcohol in a breath can vary wildly compared to the concentration in the blood. If someone used e.g. mouthwash a few minutes before being tested it will indicate a high BAC even if it's actually zero.
Unless the police are going to start forcing people to brush their teeth, clean their tongue, and use some form of non alcoholic mouthwash before testing you can't come close to the sort of accuracy that an actual blood test would give. In real world conditions there are too many situations where the concentration of alcohol in your breath is substantially different than the concentration of alcohol in your blood.
Should be clearer - and if those bulky machines are replaced with blood tests (assuming they are much more reliable) I don’t see the problem. Having doubt in the test used to bring someone to a second test is fine. The second test is used for conviction so there can’t be any doubt.
That being said, I would never consent to a breathalyzer or field sobriety test today sober or not. I see no issue with flexing our rights and really get tired of the "just comply" narrative.
On one hand I understand this approach due to the dizzying array of factors that cause impaired driving - from alcohol to prescription drugs to designer drugs that may not have definitive tests available. Seeing as sleep deprived drivers often perform as poorly as impaired drivers on various tests that should be included as well.
On the other, this is still a situation where an officer's opinion with no supporting evidence (or conflicting evidence) can lead to arrest.
Sure, you may "win" in front of a judge eventually but this is after you get handcuffed, spend the night in jail, have an arrest on your record, etc. Not to mention having your mugshot posted online by various unscrupulous sites running an extortion racket (demanding payment to remove). You'll soon discover that to many people simply being arrested = guilty.
In my case my "win" came 14 months later when the judge watched the dashcam footage, saw that my driving, speech, behavior, etc clearly wasn't impaired and threw the case out. Total time in court was less than 20 minutes.
Interestingly we watched the dash cam footage after the officer testified. At one point my attorney asked why the officer thought I was impaired. He responded with "I'm Irish Catholic and I know what drunk people look like". The entire courtroom (myself included) laughed.
Perhaps the officer was impaired.
In order to be sure that I've waited long enough to be safe, I bought a BACtrack S35 breathalyzer to keep in my car. In many, many years of testing myself, I have never seen a reading above 0.03, at which point I feel pretty impaired. If I'm over 0.02, I don't drive. I don't think I could stay conscious long enough to get myself up to the 0.08 legal limit.
All of which makes me wonder: can I trust this gadget to be properly calibrated? And how would I find out? The only way I can think of is to approach a police officer while drunk and ask them to breahalyze me so I can compare readings. Somehow, the opportunity to do that has never arisen.
It seems to me like a no-brainer that any establishment that serves alcohol ought to be required by law to have a properly calibrated breathalyzer on the premises for its customers to use. But of course this won't happen because the truth is we don't really want to know. We have drunk-driving theatre just like we have security theatre, and both seem to be a stable equilibrium.
Alas.
Also, we have two units, one in my car, one in my wife's car. I've tested myself back-to-back with both units (at home) several times and the readings are always consistent.
Jus' sayin'.
That’s why the law isn’t against driving drunk or impaired it’s a law against driving with alcohol in your blood.
Decision making is more difficult to judge of course, but reaction time is massively important. So if we have a quantifiable measurement, who cares about vague things like drunkenness?
Though, if something like decision making goes south far before reaction time does, then I could totally see an argument being made against using BAC as a measurement. Yet, I don't believe that's the case.
It's often a law against doing either one, but if you are above they legal BAC limit that's much easier to prove beyond a reasonable doubt than is impairment due to alcohol.
So maybe you mean that the law shouldn't be based on BAC?
At one "rolling a stop sign" stop, the cop basically admitted I hadn't rolled the sign, they just wanted to make sure I hadn't been drinking - "Yeah, I just wanted to make sure you hadn't been drinking, have a good night."
edit: subjective, not objective :\
> Any person who drives any vehicle in such a manner as to indicate either a wilful or a wanton disregard for the safety of persons or property is guilty of reckless driving. Reckless driving shall be considered a greater offense than careless driving.
> Every person convicted of reckless driving shall be punished upon a first conviction by a fine of not less than Five Dollars ($ 5.00) nor more than One Hundred Dollars ($ 100.00), and on a second or subsequent conviction he may be punished by imprisonment for not more than ten (10) days or by a fine of not exceeding Five Hundred Dollars ($ 500.00), or by both.
The way it's defined does seem a bit subjective. I'm sure this can be addressed, but at least in this example, it's not immediately clear to me how it can be improved. I would probably get some ideas by looking at other states. The penalties, however, could absolutely be increased. In comparison, the punishment for a first offense DUI [2]:
> (a) First offense DUI.
> (i) Upon conviction of any person for the first offense of violating subsection (1) of this section where chemical tests under Section 63-11-5 were given, or where chemical test results are not available, the person shall be fined not less than Two Hundred Fifty Dollars ($ 250.00) nor more than One Thousand Dollars ($ 1,000.00), or imprisoned for not more than forty-eight (48) hours in jail, or both; the court shall order the person to attend and complete an alcohol safety education program as provided in Section 63-11-32 within six (6) months of sentencing. The court may substitute attendance at a victim impact panel instead of forty-eight (48) hours in jail.
> (ii) Suspension of commercial driving privileges is governed by Section 63-1-216.
> (iii) A qualifying first offense may be nonadjudicated by the court under subsection (14) of this section. The holder of a commercial driver's license or a commercial learning permit at the time of the offense is ineligible for nonadjudication.
> (iv) Eligibility for an interlock-restricted license is governed by Section 63-11-31 and suspension of regular driving privileges is governed by Section 63-11-23.
The penalties are much more, though the end result of the illegal act itself are the same. The only difference is that you drank a couple beers instead of taking your prescription medications. I picked Mississippi simply because I live here currently, but it's similar with all the states I've looked at.
[1] https://law.justia.com/codes/mississippi/2013/title-63/chapt... [2] https://law.justia.com/codes/mississippi/2017/title-63/chapt...
There are too many things that could be considered reckless and even more things that could be extenuating. The penalty for reckless driving could certainly be higher, though, since it's defined as willful or wanton disregard.
The DUI law you cited already covers prescription drugs, by the way. "Is under the influence of any other substance that has impaired the person's ability to operate a motor vehicle;"
You are correct in that the DUI law covers prescription drugs. I hadn't noticed that until you pointed it out. It's rare though, from what I see, for a DUI case to be about anything other than BAC. I have no actual statistics on that.
I guess in my earlier comment the prescription drug part can be replaced by using a cell phone.
That's because BAC is easy to measure. If you want to prosecute for BAC, you just need trusted test results. If you want to prosecute for impaired driving in general, you need to prove actual impairment, which is tough. This is why MADD campaigned for the .08 limit nationwide. It's easy to enforce.
Point is the pretext for the stop is nonsense...
But short of an actual objective test, arresting people for driving after consuming alcohol is plenty reasonable to me.
It is, it's just not a precise one. (Yes, it's an indirect proxy measure, but so are all measures on some levem.)
If you're going to get breathalyzed, will you notice if the officer is doing something shady? Could you even know, without knowledge of the various machines?
I'm also quite miffed that a cop can give you a DUI even if your reported (by the machine) BAC is under the legal limit, 0.00 included.
Are there cases where blood disfavors the suspect?
They're running industrial process control sensors at the limits of their range and in widely changing environment. It should come as no surprise that they're hard to calibrate accurately and likewise deliver variable results in a lot of cases
In a factory environment equipment doesn't get calibrated in a 70deg car and used in 20deg winter air to measure 90deg human breath. In law enforcement that's exactly what happens.
Ankle bracelets are even worse.
The fact of the matter is that most hardware/software solutions sold to law enforcement are only a small step above the scam bomb-detectors that got sold to the Iraq government (Google it if you're unfamiliar with the story).
If NASA were writing the calibration code, the results weren't being interpreted by laymen and their interpretation wasn't being used to destroy lives I'd feel differently.