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You Don't Have To Be Drunk To Be Arrested For Drunk Driving
The prohibition nannies are getting out of hand. There's a shocking piece in Reason by David Harsanyi who opens on a D.C. woman who was arrested for drunk driving -- even though she wasn't actually legally drunk:

The breath test revealed that Bolton's blood alcohol content (BAC) was 0.03 percent, a level a 120-pound woman could expect after drinking one glass of wine. It was well below the 0.08 percent limit that marks a driver as legally intoxicated in D.C. It was not low enough for the arresting officer, however. This middle-aged mother of two, who hadn't drunk to excess, who hadn't run a red light or run a stop, was arrested, handcuffed, and fingerprinted for an innocent mistake. She sat in a jail cell for hours and was finally released at 4:30 a.m. Bolton spent four court appearances and over $2,000 fighting a $400 ticket. She then spent a month fighting to get her license back after refusing to submit to the 12-week alcohol counseling program.

The arresting officer, inaptly named Dennis Fair, insists: "If you get behind the wheel of a car with any measurable amount of alcohol, you will be dealt with in D.C. We have zero tolerance....Anything above 0.01, we can arrest." Fair recognized that nearly everyone in D.C. was unaware of this zero tolerance policy. Still, he told The Washington Post, if "you don't know about it, then you're a victim of your own ignorance."

Bolton's arrest was not the result of a single cop's overzealousness. In 2004 D.C. police arrested 321 people with BACs below the legal limit of 0.08 percent for driving under the influence. The year before, the number was 409.

...Neoprohibitionists aim to muddle the distinction between drunk diving and driving after drinking any amount of alcohol. Sen. Barbara Boxer (D-Calif.) endorsed the idea at a Senate Environment and Public Committee hearing way back in 1997, contending that we "may wind up in this country going to zero tolerance, period." Former MADD President Katherine Prescott concurred, in a letter to the Chicago Tribune, where she stated "there is no safe blood alcohol, and for that reason responsible drinking means no drinking and driving."

Technically she's correct. Driving is never completely safe, and many things drivers commonly do-including speaking on a cell phone, talking to passengers, applying lipstick, eating a sandwich, drinking coffee, adjusting the radio, reprimanding the kids in the back seat, and daydreaming about weekend plans-can make it riskier. As states and cities have begun focusing on zero tolerance (or "driving while distracted" laws, which target the diversions laid out above) they are losing focus on the real threat, namely habitually drunk drivers.

Even the founder of MADD thinks this is wrong, protesting...

...the shift from attacking drunk driving to attacking drinking in general. "I worry that the movement I helped create has lost direction," she told The Cleveland Plain Dealer in 1992. BAC legislation, she said, "ignores the real core of the problem....If we really want to save lives, let's go after the most dangerous drivers on the road." Lightner said MADD has become an organization far more "neoprohibitionist" than she had envisioned. "I didn't start MADD to deal with alcohol," she said. "I started MADD to deal with the issue of drunk driving."

And now some are trying for pre-emptive strikes -- and not just against those with a history of drunk driving:

In 2004 New Mexico state Rep. Ken Martinez (D-Grants) introduced a bill that would have forced every driver in his state to install an ignition interlock device. In addition to the indignity and inconvenience of breathing into a tube every time they start their cars, this requirement would cost drivers about $1,000 each to install the device, according to estimates by the states that require them.

...During the Christmas season of 2003 in Fairfax County, Virginia, a suburb of Washington not far from the site of Debra Bolton's arrest, local police took pre-emptive law enforcement to an absurd extreme, launching a sting operation that targeted 20 local bars and restaurants. The mission: apprehend "drunk" patrons before they try to drive. These drinkers were far from their cars and in some cases did not even own cars. What type of evidence did the police use to measure intoxication? According to one law enforcement official involved in the sting, the determination could be made based on unflicked cigarette ashes, an excessive number of restroom visits, noisy cursing, or a wobbly walk.

The raids involved 10 cops in SWAT-like outfits. In an interview with The Reston Times, the general manager of one targeted establishment said "they tapped one lady on the shoulder-who was on her first drink and had just eaten dinner-to take her out on the sidewalk and give her a sobriety test. They told her she fit the description of a woman they had complaints about, and that they heard she was dancing topless."

In one raid, of the 18 drinkers tested for sobriety, nine were hauled to jail for public intoxication. When asked to explain the rationale for the raids, then-Fairfax County Police Chief J. Thomas Mange declared that you "can't be drunk in a bar." Where can you be drunk? "At home. Or at someone else's home. And stay there until you're not drunk."

Harsanyi's final words:

Drinking may not be a prerequisite for a happy life, but it's a ritual most Americans have enjoyed as long as the nation has existed, and harmlessly so in the overwhelming majority of cases. Although I'm not an exceptionally heavy drinker, I can't, and don't want to, imagine a life without alcohol. As long as I'm not endangering anyone else, I shouldn't have to.

Posted by aalkon at November 3, 2007 11:45 AM


"Fair recognized that nearly everyone in D.C. was unaware of this zero tolerance policy. Still, he told The Washington Post, if "you don't know about it, then you're a victim of your own ignorance.""

Laws are supposed to be promulgated, i.e. made known or published.

Law enforcement tends to attract people who like power and secrecy, so it fits their bill to have little secret laws they can whip out and nab people.

In some minds, there are no innocent people, just people who haven't been caught yet.

Also, it is a lot easier to nab well dressed people who are just sitting down to dinner.

Posted by: doombuggy at November 3, 2007 7:08 AM

Jill Stewart, the LA Weekly news editor, was telling me that there are 25,000 new laws in California. It's absolutely impossible for anyone to know what all these laws are, so applying the doctrine "ignorance of the law is no excuse" is absolutely unfair and ridiculous.

Posted by: Amy Alkon at November 3, 2007 7:20 AM

Actually, here it is, from a radio appearance by Governor Moonbeam:

Well, I do, we’ll have health and safety. But I ... I have more confidence. I don't believe in the nanny(?) state. I want to be able to make my own damned decisions without big brother holding me by the hand every step of the way. And I can tell you, as Governor, where I signed 8,000 bills ... which now ... we’ve had three more Governors, who’ve signed another 8,000 bills each, we had 25,000 new laws trying to guard our every movement.

Posted by: Amy Alkon at November 3, 2007 7:23 AM

Indeed, it is true that ignorance of the law is no excuse. And equally true that no single person can possibly be acquainted with all the laws on the books.

It ought to be possible to write to city hall and be sent a book containing all of the laws - federal, state and local - that apply to a private person. And there should be a second book for businesses.

  • So that the average person can understand it, the laws should be written in "plain English" like the IRS tax instructions.
  • The total length of the book (and hence the laws) should be limited to the same as a fat paperback. No space left? Then they just have to delete one law before adding another.

Of course, the lawmakers would never restrict themselves so...

Posted by: bradley13 at November 3, 2007 10:31 AM


That survival cabin with the big arsenal in the remote wilderness is sounding better and better.

Posted by: Redpretzel in LA at November 3, 2007 12:33 PM

I'd actually quite like to have that ignition interlock device, especially if it somehow stored all the current legal limits of each state in its memory. Mandating it for all seems silly, but I'd buy one.

Posted by: LYT at November 3, 2007 1:31 PM

What kind of insane "12-week alcohol counseling program" is appropriate for a woman who had a glass of wine after work? The mind truly boggles...

"Now see here, ma'am. A glass of wine a day is very BAD FOR YOU. No, er, wait...."

Posted by: Stu "El Inglés" Harris at November 3, 2007 2:41 PM

As a fan of far more stringent drunk driving penalties, this strikes me as absolutely ridiculous. There has to be differentiation between driving drunk and having a drink and driving. Certainly I would be happy if people just chose not to drink at all if they are driving, but that is not likely to happen, nor does it need to. And given what I think the penalties* should be for drunk driving, they certainly should only apply to drunk driving.

*Drunk drivers should be charged with attempted manslaughter.

Posted by: DuWayne at November 3, 2007 2:49 PM

And drunk drivers who kill someone should be charged with negligent homocide and felony murder

Posted by: lujlp at November 3, 2007 8:54 PM

I am a military officer and a single arrest or ticket involving alcohol and a car will ruin my career. I do not drive after even one beer - I hand the keys to my wife. One brush with the DC policy could terminate my career even if I am not even close to impaired. Sadly, the Nanny State has taken root even in the US Army, an institution that I love. We expect very young men and women - sergeants and lieutenants - to lay their lives on the line and aggressively take the fight to the enemy, and at the same time make fine distinctions and nuanced judgments - under fire - about who is and is not a combatant (to minimize the risk of injuring innocent people), but we do not trust these same young leaders with the authority to allow their Soldiers to responsibly enjoy a beer or two on the FOB off duty. This has been the case during my entire career, but matters have gotten worse lately. Now a first-line leader - that same sergeant or lieutenant - is often not even allowed to exercise independant judgement on whether to give his or her Soldiers a weekend pass. Some installations have implemented checklists that Soldiers must fill out on various risk factors before leave can be approved (two such factors being "do you own a car" and "will you drive a car on leave"). Based upon the number of points the Soldier has for his various risk factors, his leave or pass has to be forwarded up the chain of command to his captain, his lieutenant colonel, or even his brigade commander, a full colonel - as if the commander of a 3,000-Soldier fighting force has nothing better to do than deal with whether Private Smith bounced a check last month before Smith can go on pass for the weekend. Another favorite of mine is the nut-roll a Master Sergeant in my unit had to go through when we returned from Iraq. Before he was allowed to retrieve his car from the storage lot at Fort Riley, he had to complete an on-line driver safety course - this 17-year veteran paratrooper and former company First Sergeant (I avoided this indignity only because I my car was at home in Washington DC). This sort of thing was unheard of when I was a lieutenant. The whole reason we have sergeants and lieutenants at all is to care for and discipline young Soldiers - and the Nanny State is slowly chipping away at this. What bothers me most about this is my belief that these measures are not implemented so much to protect Soldiers from themselves, as they are to protect commanders from the mistakes their Soldiers make. This is because a commander can sometimes find himself in hot water for something a Soldier does that the commander could not in any way have reasonably foreseen or prevented; often the trouble has nothing to do with any real lapse by the officer but has everything to do with someone's political or personal agenda. To fend of criticism or damage to their own careers at the hands of zero-defects mentality superiors or politically driven critics, some commanders resort to the kinds of measures described above. A very understandable and human response, but an unfortunate reality as well.

If it were up to me, Soldiers would be allowed a beer ration even in combat, of two beers per day except perhaps the night before a patrol. Any Soldier who got out of hand when drinking would be punished accordingly, but everyone else would be free to exercise this privilege consistent with their ability to do so responsibly. I believe that this would probably save lives when these Soldiers returned to the US. Having had reasonable access to alcohol while deployed, they would be less likely to go overboard when getting access to it upon returning home. Additionally, commanders would probably be able to more readily identify Soldiers with REAL alcohol problems and get those Soldiers help, rather than subjecting the whole force to undignified and childlike treatment.

Posted by: Dennis at November 4, 2007 4:38 PM

Thanks, Dennis, for posting this. I cannot believe the infantilization of people who are in the military! Driver's training for a 17-year veteran paratrooper? I mean, does it get any more ridiculous?

Posted by: Amy Alkon at November 4, 2007 4:48 PM

There was TV show about ten years ago that said that guys in nuclear subs were permitted a single glass of wine at dinner. When you're in that confined a space with someone that far from home, you're probably monitoring each other's behavior pretty closely anyway.

Posted by: Crid at November 4, 2007 6:06 PM

In Japan they have similar such crazy laws (you are considered DWI if BAL >0.03). Moreover, they just upped the ante by adding new laws that criminally prosecute a person in the car who knew you were drunk while driving *and* the person serving you alcohol if you drove drunk (I am talking jail time, large fines, etc). Not to be outdone, the Air Force added that on base if you are even BAL 0.01 you have to park your car and walk (not complying results in an UCMJ violation). Of course, all this did not stop three Airmen from driving *very* drunk, during an exercise, and totaling their car. It is almost as if you cannot mandate common sense nor legislate away stupidity. Although it sounds like the Army really kicked it up a notch. It is too bad The Powers That Be can’t differentiate between the person leaving a party after shot gunning a twelve-pack with three shot chasers and the person who had a beer and hotdog at the baseball game.

But for all their crazy (and schizophrenic) laws here, while people drink copiously, they just do not drive drunk--it is considered very socially unacceptable.

Posted by: Doc Jensen at November 4, 2007 10:01 PM

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