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The Road To Prohibition


In a post some time ago, I wrote that the ultimate goals of Mothers Against Drunk Driving lay well beyond lowering DUI levels to .08%, .05% and ultimately to .01%. The ultimate goal is, simply, resurrecting the failed experiment of prohibition.

The first step, of course, would be a gradual shift of focus away from drinking and driving to one of just drinking. And the logical starting point would be the more politically-acceptable target of underage drinking.

I mentioned in the post that in 1999, MADD’s National Board of Directors unanimously voted to change the organization’s mission statement to include the prevention of underage drinking. Not underage drinking and driving — just drinking. Thus, this huge (annual revenues over $49 million) and politically powerful organization formally shifted its focus away from “drunk driving” and towards the broader “problem” of drinking.

Where does this lead us? How about laws that authorize the police to stop American citizens under 21 on the streets or even in their homes and force them to submit to breath tests or face arrest? Exaggeration? Even paranoia? Consider the following news release:

DETROIT, August 8 – In a case with far-reaching implications for young adults and minors throughout the state, the American Civil Liberties Union of Michigan filed a federal lawsuit today challenging a state law that allows police to force pedestrians under the age of 21 to take a Breathalyzer test without first obtaining a search warrant.

“It is time to stop the widespread practice in this state of punishing young people who are walking down the street for refusing to submit to a Breathalyzer test,” said Kary Moss, Executive Director of the ACLU of Michigan. “The Constitution is clear – no search warrant, no Breathalyzer. Police cannot force pedestrians to submit to an unconstitutional search.”

Michigan is the only state in the country to make it illegal for young adults and minors who are not driving to refuse a Breathalyzer test when the police do not have a search warrant.

The lawsuit has been filed on behalf of two Saginaw Countywomen who were forced by Thomas Township police to submit to breath tests although they had not been drinking, as well on behalf of and two Mount Pleasant men forced to do the same by an interagency police task force that refers to itself as the “Party Patrol.”

Katie Platte was 19 years old when she went to a small party in Thomas Township in July 2004 in honor of a high school classmate who had enlisted in the Marines and was leaving for Iraq. In spite of the fact that Platte was not drinking any alcoholic beverages, the Township police told her and others at the party that if they refused to take a breath test they would go to jail.

“I wasn’t drinking or causing a problem,” said Platte, now an honors student at Saginaw Valley State University. “You’re supposed to be innocent until proven guilty, but in this case young people are assumed guilty until they prove they’re innocent by having to take a Breathalyzer test.”

According to Platte, the police in Thomas Township are known to frequently break up parties attended by young adults and force everyone at the party under the age of 21 to submit to Breathalyzer tests. University police officers recently raided an apartment in the building where she lives and forced all of those under the age of 21 to submit to Breathalyzer tests without a warrant, even though they were not driving or under arrest.

A second plaintiff, Ashley Berden, was 18 when she attended a party at a friend’s house to celebrate her graduation from Swan Valley High School. After she left the party, Thomas Township police officers arrived and found her purse, which she had forgotten. The police came to Berden’s house at 4:00 a.m., woke up her family and demanded that she take a Breathalyzer test. The police did not have a warrant and informed Berden that she would be violating the law if she refused the test. The test registered a .00 percent blood-alcohol level, indicating that Berden had not been drinking.

To paraphrase a German priest’s pre-WWII quote in a past post, “First they came for those under 21, but I was not under 21 so I did not speak up….”

In past posts I’ve commented on MADD’s apparent shift from drunk driving prevention to resurrecting the failed experiment of Prohibition.  This has been seen in their successful political pressure resulting in lowering of blood-alcohol levels from .10% to .08%, then in some situations to .05%, and finally to .01% for drivers under 21.  This was more recently followed by MADD’s formal rewording of their “mission statement” — from a focus on drunk driving to underage drinking. 

The next logical step in the march toward Prohibition, of course, is to outlaw driving by adults with any alcohol at all in their system — regardless of any impairment or danger to the public…..

Single Glass of Wine Immerses Driver in Legal Battle

Washington Post, October 12    Debra Bolton had a glass of red wine with dinner. That’s what she told the police officer who pulled her over. That’s what the Intoxilyzer 5000 breath test indicated — .03, comfortably below the legal limit.

She had been pulled over in Georgetown about 12:30 a.m. for driving without headlights. She apologized and explained that the parking attendant must have turned off her vehicle’s automatic-light feature.

Bolton thought she might get a ticket. Instead, she was handcuffed, searched, arrested, put in a jail cell until 4:30 a.m. and charged with driving under the influence of alcohol.

Bolton, 45, an energy lawyer and single mother of two who lives in Alexandria, had just run into a little-known piece of D.C. law: In the District, a driver can be arrested with as little as .01 blood-alcohol content.

As D.C. police officer Dennis Fair, who arrested Bolton on May 15, put it in an interview recently: “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 .01, we can arrest.”

Neither the police department nor the attorney general’s office keeps detailed records of how many people with low blood alcohol levels are arrested. But last year, according to police records, 321 people were arrested for driving under the influence with blood alcohol levels below the legal limit of .08. In 2003, 409 people were arrested….

On the department’s Web site, D.C. police explain it this way: “Technically, according to the D.C. Code, the District of Columbia has a zero tolerance for driving under the influence. If a person 21 years of age or older has a blood alcohol concentration of .02 percent [to] .04 percent and extremely bad driving, this person can be placed under arrest for Driving Under the Influence of an alcoholic beverage.”

At low levels of alcohol, an arrest comes down to an officer’s discretion, said D.C. police Inspector Patrick Burke, former head of the traffic division….

How can a person be “under the influence” with only .03% blood-alcohol?  When did forgetting to turn on your headlights constitute “extremely bad driving”?  And since when does the existence of a crime depend upon an “officer’s discretion“?

And what is MADD’s next step?

Following up on yesterday’s post about Washington D.C.’s "zero tolerance" law:

Critics Say District’s DUI Policy Goes Too Far

Jailing Drivers for 1 Drink Called Wasting Resources

Washington Post, October 13. Officials with organizations that lobby for safe roads and tough drunken driving laws yesterday criticized the District’s zero-tolerance policy toward drinking and driving, saying that they’d never heard of it and that limited police resources should be devoted to those more obviously drunk.

Even D.C. Council member Carol Schwartz (R-At Large), who has sponsored legislation to lower the legal limit for drunken driving, said she was not aware that police officers are arresting drivers who have as little as .01 percent blood alcohol content — less than from drinking a glass of wine or beer — in their systems. Nor did she think that such a policy was a good idea….

But never underestimate the religious zeal of police and prosecutors:

Elizabeth Wingo, chief of the criminal section in the D.C. Attorney General’s Office, said her office prosecutes cases regardless of blood alcohol level, as long as there is sufficient evidence of impairment "We have zero tolerance for drunk driving. It doesn’t matter what your blood alcohol level is," Wingo said. "If you blow .02 and officers can tell you’re impaired, you’ll be arrested for DUI."

(I can still remember when, as a prosecutor so many years ago, my legal duty was to seek justice — not to defend the police regardless of the truth.)

The recent reaction to the flap about Washington D.C.’s "zero tolerance" laws has prompted a flurry of public protest, political back-pedaling — and the predictably rigid police response:

Council Hastens To Revise DUI Law

Washington Post, October 15 D.C. Council members, swamped with irate calls and threats to boycott D.C. bars and restaurants, introduced emergency legislation yesterday that would override the police department’s controversial and little-known zero-tolerance policy for drinking and driving.

Council member Jack Evans (D-Ward 2), who represents Georgetown, said he has been bombarded with calls from restaurants, bars and constituents asking, "What kind of lunacy is this?"

D.C. Chief Defends Officers’ Judgments in DUI Arrests

Washington Post, October 14 D.C. Police Chief Charles H. Ramsey yesterday defended officers who arrest drivers with blood alcohol levels below the legal limit, and amid growing criticism of the department’s "zero tolerance" policy, he insisted that officers continue to be able to use their discretion.

One officer who has made such arrests, Dennis Fair, said D.C. law gave him the authority to arrest drivers with as little as a .01 blood alcohol level. "If you get behind the wheel of a car with any measurable amount of alcohol, you will be dealt with in D.C," Fair said in an interview. "We have zero tolerance."…

Ramsey said he does not use the term "zero tolerance."

After 35 years of prosecuting and defending, I still have difficulty understanding the law enforcement mentality.

The latest in the continuing saga of Washington’s “zero tolerance” drunk driving laws:

D.C. Council Votes to Ease No-Tolerance DUI Law

Business Needs Cited; Mayor Faults Proposal

Washington Post, October 19 The D.C. Council voted yesterday to relax the city’s “zero tolerance” drunken driving law, which allows drivers to be prosecuted for minimal amounts of alcohol in the bloodstream.

D.C. law gives police the authority to arrest drivers with blood alcohol levels above .01 but below .08, the level at which a driver is considered legally intoxicated in the District.

The council voted 9 to 3 for emergency legislation under which drivers with less than .05 blood alcohol would be presumed to be not intoxicated. Mayor Anthony A. Williams (D), who called the bill “hastily written,” has 10 days to decide whether to veto it.

Council members introduced the measure after news reports highlighted cases in which drivers were arrested after drinking as little as a glass of wine. Members said they were worried about a drop-off in business for District bars and restaurants and concerned that the city’s law was becoming a national joke….

Members said they are concerned that the story was making headlines across the country and portraying the District as the last refuge of Prohibition….

“D.C. is once again open for business,” said council member Carol Schwartz (R-At Large), principal author of the legislation. She said visitors “can come in and have a glass of wine and not be harassed or intimidated.”

Again, I find it interesting (but not surprising) that there was little or no concern about the injustice of arresting and prosecuting obviously sober people for “drunk driving”. The reasons for the change in law are clear from the headlines: “Business Needs Cited”.

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