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A Push For Moderation in Our DWI Laws? Food For Thought From Mississippi

October 17th, 2011

A very interesting, well-written editorial from Mississippi highlights our national over-zealousness regarding DWI enforcement. As the author states, “Driving While Intoxicated has become Driving Under the Influence” as a result of the intense lobbying of MADD, and the financial incentive police agencies have to make DWI arrests.

(The original article can be found here).

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The Mississippi highway PATROL has kicked off its annual campaign against drinking and driving with the motto, “Stay Sober or Get Pulled Over.”

In 2010, there were 231 Mississippi alcohol related fatalities, a disturbing number. We don’t really know if alcohol caused these accidents or not, but we do know one of the drivers was drinking.

For the one-third of Americans who don’t drink, the legality of drinking and driving must seem like an abomination. Indeed, alcohol consumption even without a two-ton vehicle causes untold wreckage of lives and human misery.

But two-thirds of Americans find moderate alcohol consumption a very pleasant aspect of life. It enhances conviviality, allows one to relax after a hard week’s work and is good for your health. Moderate alcohol consumption can reduce the risk of heart disease and senility.

It was no less than Benjamin Franklin who wrote: “Behold the rain which descends from heaven upon our vineyards, there it enters the roots of the vines, to be changed into wine, a constant proof that God loves us, and loves to see us happy.”

And of course, Jesus turned the water into wine.

The temperance battle has been one of the great social battles of our country. We tried to ban alcohol, but failed. Now we keep an uneasy social truce over the liquid drug.

The American love-hate contradiction over alcohol couldn’t be clearer than in our DUI laws. Drinking and driving is legal – but only up to a point.

The American Medical Association, at the request of the Department of Transportation, originally deemed impaired driving to occur at a .15 blood alcohol level. Today, half that level – .08 – is considered impaired and illegal. The human body hasn’t changed during that time, but Mothers Against Drunk Driving has since become a powerful political force that no politician dares to question. Driving While Intoxicated has become Driving Under the Influence. The range of acceptable drinking and driving is much more narrow.

Meanwhile, there were 33,153 Mississippi DUI arrests last year, an astounding number. If DUIs were randomly distributed, every driver in the state would get at least one during his lifetime.

A Colorado study showed that 20 percent of those arrested for DUIs had legal blood alcohol levels. The problem is that residual alcohol in your mouth can distort the results of the unreliable portable breathalyzers police often use to make an arrest.

Applying the Colorado study to Mississippi, 6,500 innocent Mississippians are arrested for DUI each year. Many lack the knowledge or money to fight the charge and just plead guilty.

For the innocent, the personal cost of an undeserved DUI is immense: Lost reputations, job opportunities and the 90-day license suspensions. Car insurance rates skyrocket. A DUI often ends up costing $15,000.

If police followed the rules, they would never give a breath test without waiting for at least 20 minutes. But Mississippi police are not that patient, especially when quotas need to be met and $30 million in fines is on the line.

Police often administer breath tests without probable cause: red eyes, the smell of alcohol, weaving within your lane, a bad taillight, making a wide turn, and other vague and arbitrary reasons are often used by police as probable cause, even though they don’t stand up to judicial scrutiny.

Police are routinely asking, “Have you been drinking?” even though drinking is a legal activity. If you answer yes, count on being tested.

The police need to concentrate on drivers displaying clearly erratic driving, slurred speech and inability to walk straight – these are the behaviors on which genuine probable cause should be based. These are the people who are a danger on the road.

Then there is the infamous “sobriety field test” where the police ask you to do various acrobatic stunts. Studies show perfectly sober people fail this test half the time.

In its eagerness to battle drunk driving, the U.S. Supreme Court has carved out a special place for DUI enforcement, suspending many of the typical civil rights protections afforded by the Constitution.

The clearest case of this is the road block, where drivers are detained for no probable cause. Many legal experts believe road blocks violate the Fourth Amendment of the U.S. Constitution, which prohibits unreasonable search and seizure. In allowing road blocks for DUIs, the U.S. Supreme Court overruled several state supreme courts, which found them to violate the rights embodied in state constitutions.

Legal experts on the Web say Mississippi and Georgia have the most backward DUI laws in the nation.

For instance, in Mississippi blowing a .08 is automatic proof of guilt, but blowing under a .08 does not prove you innocent. If you get on the wrong side of an officer, which often can happen just by protecting your rights, they can arrest you anyway, even if you are under the limit. The state Legislature should fix this.

Current Mississippi law gives drivers the right to a blood test, but the statute is watered down and police ignore it. Police should be required to inform drivers that a more accurate test is available. Then police should be required to assist the driver in getting a blood test if they so choose. Any emergency room can do it. The more accurate blood test would further convict the guilty, but it would save thousands of innocent people from getting a huge blight on their record.

Breath samples can be saved for later verification by an independent lab. The cost is about five dollars. But under Mississippi law, the police do not have to save the samples. In essence, they are allowed to destroy the very evidence used to convict.

Like any profession, there are good police and bad police. In this age of smart phones, it is simple to audio or video record your interaction with police. Incredibly, dozens of American citizens have been arrested for recording their encounters with police based on outdated eavesdropping laws. The Legislature needs to change this. Any citizen should have the right to record his interaction with police to ensure proper adherence to the law.

Research has shown that law-abiding citizens who go out to dinner on Saturday night and have wine with dinner are not the cause of alcohol related traffic deaths. The deaths are caused by chronic alcoholic repeat offenders. These are the dangerous people who are weaving down the road and running red lights. The police need to spend their time watching for the true menace and not randomly stopping the two-thirds of Americans who like wine with dinner.

I have never gotten a DUI. In fact, I’ve never gotten a speeding ticket nor been in an accident or been arrested for anything. But I do like wine with dinner when I go to a nice restaurant.

I was stopped once several years ago and tested with a breathalyzer. I passed easily, but I can tell you the Ridgeland police officer did not follow the law. He was the law breaker, not me.

When I asked the officer why he stopped me, he said I was “weaving.” When I immediately reacted with an incredulous, “What?” he said, “Well, weaving within your lane.”

The lanes on Old Canton Road are very narrow, with a few feet on either side. The real reason he stopped me was I was driving a red convertible late on Saturday night. That is an illegal stop, completely lacking in probable cause. This goes on all the time. The Legislature should specify erratic driving, slurring of speech and stumbling as the only legitimate probable cause for DUI testing in Mississippi.

If you must drink and drive, buy a breathalyzer and learn to use it. Some cost as little as $30. If you are above the legal limit, go have dessert. As a general rule, don’t consume more than one drink an hour. When dining with friends, pick a designated driver.

With 33,000 arrests each year, it’s high time the state Legislature passed some basic measures to protect its law-abiding citizens from false DUI arrest. With fewer breath tests to do on law-abiding drivers, maybe the police could keep a better lookout for the real drunks swerving down the road.

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