By Attorney Jonathan Blecher
Special to THELAW.TV
DUI is big business and big votes. And, wherever there’s money and votes, you’ll find laws making it easier to put them in the pockets of the people most likely to benefit. It’s a political issue, one that politicians can safely get behind … especially when forces like MADD are brought to bear.
1. Cops will target drivers impaired by marijuana
You can buy pot over the counter in Colorado. Washington and Oregon have decriminalized simple possession. More than 20 states have laws legalizing pot use for medical purposes. What this means for law enforcement is stepped-up efforts at arresting pot smokers.
Recently, cops in California were given Q-tips and a “black box” which, in theory, detect the presence of drugs in saliva. The problem with this technology is that only the mere presence of a substance in saliva is detected – not impairment. Positive blood, urine, or breath tests prove nothing but prior exposure. But of course, there’s a lucrative contract to provide these tests to law enforcement.
2. DUI laws will change
When breath testing was developed, the American Medical Association (AMA) helped out and arrived at .15% as an alcohol level of presumed impairment. That level was changed to .10%, then to .08%, making the alcohol level alone the offense, not actual impairment. Fast forward many decades to 2013, when the National Highway Traffic and Safety Administration (NHSTA) floated the idea that all states lower their alcohol level for presumed impairment to .05%. There are even .02% and .01% laws for under-21 aged drivers, creating “zero tolerance.”
What we’ve seen is a shift from focusing on actual impairment by alcohol, to making arrests and convictions easier by creating artificial breath alcohol levels and even “mere presence of alcohol.” Notice the stress on convictions, not actual impairment.
Could we see zero tolerance laws down the road for adult DUI cases? Could we see “attempted” drunk driving or “aiding and abetting” drunk driving?
3. New ways to collect evidence
Back in the day, police officers gave their opinion of impairment based upon the driving pattern of a car, physical signs of impairment, and sobriety exercises. Then we moved to better breathalyzers and blood tests. Portable and handheld breath testing devices are used at the scene for probable cause to arrest. Then, another test on a more reliable breathalyzer is used at the station, which continues to be used as evidence in court.
Enter technology and saving money. Expensive breath testing machines will be replaced with simpler and cheaper handheld units at the scene of arrest. Blood samples will be obtained by warrants signed by judges at DUI roadblocks.
4. Constitutional rights will erode
Supreme Court decisions over the years have eroded constitutional rights in DUI cases (what a colleague has referred to as the “DUI Exception”). We’ve seen validation of DUI roadblocks and double jeopardy (administrative license suspensions at roadside and criminal prosecution for the same conduct), no right to a lawyer before deciding to take a breath test, and presumed admissibility of a breath test result — if the test is taken within three hours of driving.
The trend is away from constitutional protections of citizens to protecting the police and prosecutors from pesky legal challenges.
5. Making DUI a “Federal” issue
Prosecuting DUI’s is left to the individual states. But, with groups like Mothers Against Drunk Driving bringing political pressure to bear, and politicians looking for an issue that voters will like, there are changes on the horizon. The federal government has pressured states to change their laws or suffer not getting boatloads of federal money for highway improvements and law enforcement grants. What have the states done?
- Created laws presuming impairment at .08% BAC
- Zero tolerance for drivers under 21
- Automatic license suspensions
- Standardized field sobriety tests
- Federally-approved lists of breath testing machines
6. The new Prohibition
Breath alcohol levels for DUI have dropped from .15% to .08%, and there are efforts to reduce it to .05%. Drivers under 21 already face .01% in some states. MADD formally changed its mission statement from drunk driving to include “the problem of underage drinking” (not underage drinking anddriving). MADD’s slogan moved from “Don’t Drive Drunk” to”Don’t Drink and Drive.” They are focusing on the “problem” of drinking in any quantity.
MADD wants mandatory ignition interlock devices installed on every car for every driver convicted of DUI, even first-time offenders, and even in cases where alcohol wasn’t a factor (DUI-drugs). That makes no sense. They’ve been able to accomplish this in 20 states, at current count. If they had their way, all cars would have ignition interlock devices installed.
7. Expanded diversion programs
Brought on by the financial pressure of paying overtime for cops who make DUI arrests and prosecutors losing cases in court, some counties have rolled out diversion programs for first-time DUI offenders. In many programs, completion of the program will result in either a dismissal of the case or a reduction of the charge to reckless driving (wet reckless). MADD has a voice in these programs, as you would expect, getting their piece of the financial pie in the form of a hefty “charitable contribution.”
The author, Jonathan Blecher, is a criminal defense attorney in Miami, Florida. His practice focuses on the defense of DUI and vehicular crimes.