The Threat to Your Rights

Abraham Lincoln (1838)

The Laws in Theory

Unfortunately there are those in America (we call them True Believers) who are only too willing to take away your right to drive after consuming alcohol. You know who they are. These True Believers have found willing accomplices in the White House, Congress and state legislatures, all of whom have enacted "tough" legislation, usually couched in terms of getting drunk drivers off the road.

These tactics make for good sound bites in reelection campaigns, and no politician dares to question the laws for fear of being labeled as soft on crime, or worse, in favor of drunk driving.

The Laws in Practice

It doesn't take a lot of thought to realize that these "tough laws" are really aimed at casual drinkers and not drunk drivers.

For example, the lowering of the per se limit from 0.10% to 0.08% is clearly aimed at drinkers who drive after drinking less. By expanding the limit downward to include more low-BAC drinkers, this law made criminals out of the most responsible of our citizens.

Let's face it: DUIs are a huge source of revenue for a lot of people. For example, the fines paid by motorists arrested in the city of San Jose alone total $1.5 million annually. Add to that the "booking fees" paid to the arresting agency, vehicle towing fees, vehicle impound fees, alcohol treatment program fees, interlock ignition fees, DMV fees and increased insurance premiums. It is easy to understand the incentive to increase the criminalization of drinking.

The Power of Myth

Joseph Campbell was fond of saying "Myth is the stepsister of truth." Not necessarily a blood relation, but part of the same family. Nowhere is this principle more apparent than in the interplay between DUI fact and fiction.

The pervading myth is that a DUI accusation is unbeatable because of the solid science of breath and blood alcohol testing.

So many people (including lawyers) have believed this myth for so long that it has acquired a degree of truth:

• Most citizens accused of DUI simply plead guilty and pay their fine.
• Many nonspecialist lawyers believe DUIs are unbeatable and counsel their clients to plead guilty.
  Guilty pleas are considered convictions, so the conviction rate goes up.
• Statistics therefore show an overwhelming conviction rate for DUIs, perpetuating the myth that DUI accusations are unbeatable.

The "Positive Feedback Loop"

Crimes that are profitable to prosecute inevitably spawn what economists and sociologists call a "positive feedback loop."

When counties realize that there is a crime on the books to which so many people are willing to plead guilty without a fight, administrators begin to understand that prosecution of that crime is very profitable.

Law enforcement begins making more arrests for that crime, resulting in more prosecutions and more revenue.

Statistics begin to show increased arrests for that crime, which are portrayed as evidence of more crime and the need for more resources to fight that crime.

Counties devote more resources to the arrest and prosecution of the crime, resulting in more arrests for that crime and more revenue from fines.

The Decline and Fall of Good Science

The convergence of the expanding myth and the positive feedback loop leads to a necessary decline in the importance of sound scientific practices in the investigation and prosecution of the crime of DUI.

When fewer people challenge their DUIs (and counties continue to raise tremendous revenue from the ones who don't), it becomes harder for law enforcement to justify expending the resources necessary to conduct good scientific investigation.

For example, police could save the breath sample a motorist gives for a cost of only $1.50 per arrest. Sound science would mandate saving the sample to permit retesting, but no agency operating in Santa Barbara County permits such a retest.

A second example: For approximately $0.50 per arrest, an officer could tape record the interview with the citizen arrested so others could assess later how the citizen sounded. Instead of having to rely on every officer's subjective determination of what constitutes "slurred speech," there would be a scientifically verifiable record of that speech.

In short, good science is a threat to the profitability of DUI enforcement because it would doubtless clear many people who are only too willing to pay their fine without question.