The DUI Exception to the Constitution

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If you look at the warranties on these devices, few of the manufacturers warrant these things to actually test blood alcohol. If you read the warranties, they specifically say that there is no warranty of fitness for a particular purpose. That's a legal phrase. Basically it means they don't want to get sued by somebody if there is a false reading. So they will not even warrant these things to do what they're selling them to do. The standard warranty, for a total breakdown of the device, is about one year — about what your toaster is warranted for. The difference between the two machines? Your toaster is warranted to toast bread.

Okay. Let's talk about science and the law. Right off the bat we've got a problem. Science, if you can define it, would be, I would say, the systematic pursuit of truth. The objectives of law are very different. It is a governmental mechanism for imposing order, structure, predictability, security, and confidence of the public in its institutions. The law is not concerned with truth. That distinction is important in understandking what is happening in the DUI legal arena.

To understand it you must understand the difference. Hundreds of years ago a guy named Galileo said, the universe is really not flat, the way Rome says it is. You saw what happened to Galileo. Have we progressed? Not if a lawyer tries to tell the truth to a jury about the limitations of a breath machine, and, in doing so, is held in contempt for properly and zealously representing his/her client. I would say we have not come all that far since Galileo's days.

Again, the legal system is not concerned with truth. And it may come as a shock, but it is not. It is concerned with order, stability. If the legal system were seeking truth, the government would not falsely assume that there's a 2100-to-1 partition ratio. If the legal system cared about truth, they would not presume that your blood-alcohol was the same number three hours earlier, when the government knows it is not. If they sought truth, they would recognize that these machines are non-specific, among other problems. The legal system is not concerned with justice, either. It is concerned with expediency, not justice. If they were concerned with justice, they would not permit roadblocks. They would not presume guilt. They would not pass laws refuting scientific truth.

I just said, They would not presume guilt. That was another DUI exception to the constitution that I didn't tell you about. One other thing the police officer does after he has you breathe into that machine, if you're over .08, is that he immediately grabs your license and confiscates it. This is another contribution from MADD. Immediate seizure of the license in 48 of the states today. On the spot. Justice administered by the police officer. No judge. No jury. You are presumed guilty. Your license is confiscated and you are given a notice of suspension. What happened to the presumption of innocence?

After you have been given this suspension, you will be facing further punishment in criminal court -- possibly including another suspension. Does this sound like double jeopardy? Of course it does, but after some initial disagreement, the courts decided that the first suspension was not a punishment: it was only an administrative sanction.

How far can things go? Some of you may have heard about a case recently in North Carolina. Now, we have never executed people, we've never, until recently, given the death penalty for a crime unless there was pre-meditation of the offender. Intention to kill and time to reflect upon that and then to carry out the plan and cold-bloodedly murder. Some exceptions have been added: Killing a police officer; multiple murders; murder by torture; murder for ransom. In North Carolina this year there was a DUI case involving an accident and a fatality It would, in any other case, in another state, likely be a vehicular manslaughter case. It was not an intentional act. It was negligent; it may have been reckless. And the prosecutor sought the death penalty. The death penalty. The law permitted it and the judge let him go for it. Fortunately, they didn't get it.

So, in the DUI arena, you have unfair procedures. You have false evidence. You have wholesale erosion of rights. But, some may rationalize, at least the DUI-caused fatalities are falling, correct? If you believe the statistics from the Mothers Against Drunk Driving and National Highway Traffic Safety Administration, that would be correct. If you look at it more closely, however, you'll find they start using terms like alcohol-involved, alcohol-related, and those statistics start changing to justify what they have been doing for the last few years. The numbers have been manipulated so that if any person involved in any way in the accident had any alcohol in his/her system -- even .01 per cent -- MADD and our federal government counts that as an alcohol-related death. If a pedestrian or the deceased driver had been the only one drinking, it would have been an alcohol-related fatality.

So, what is happening in the DUI field? Same thing that's always been happening. The real danger to your lives, to my children's and your children's lives, are from recidivists. Statistically, the risk lies with recidivists — people that have driven drunk repeatedly. Which is, despite what MADD says, a relatively small percentage of those who are arrested. Problem? How do you reach those people? Can you affect the incidence of death caused by DUIs by increasing the punishment? As to those recidivists, and I tell you: no.

We are trying to use the legal system to address what may be partially a medical, perhaps psychological, but in my opinion certainly a genetic problem. Now that sounds like an easy cop-out. I wrote a book about 15 years ago called Born to Crime, The Genetic Causes of Criminal Behavior, so I suppose that I am a bit biased, but I'm basing what I say upon defending thousands and prosecuting thousands of DUIs and I'm absolutely convinced that alcoholism is largely genetic in origin, at least a strong genetic predisposition. And I think the studies, and one of the chapters of Born to Crime was devoted to alcoholism -- the studies are overwhelming. And so long as you have a system that is geared to behavioral modification -- that is, we're going to change his drinking habits by putting him in jail for six months — or deterrence — we're going to stop other recidivists from driving drunk because of their fear of jail — then you're fooling yourselves.

Do I have an answer? No, I don't. But I know that system isn't working, and in the meantime we are slowly dismantling the Constitutional rights that are our birthright. Is this just about drunk drivers? The simple fact is that our legal system is based upon precedent: rights that are lost in a DUI case today can be lost in any other case tomorrow.

To paraphrase a famous quote from pre-war Germany, First they came for the drunks, but I was not a drunk, so I did not speak up....

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