One for the Road

Drunken-driving laws border on unconstitutional.

by Radley Balko

When Keith Emerich of Lebanon, Pa. went to the hospital for an irregular heartbeat, he told his doctor he was a heavy drinker: a six-pack per day. The Department of Transportation later sent Emerich a letter explaining his driver's license had been revoked. If he wanted it back, he'd need to prove to Pennsylvania authorities that he was competent to drive. His doctor had turned him in, as required by state law.

The Pennsylvania law is somewhat old (dating back to the 1960s), but it's hardly unusual. Courts and lawmakers have stripped the presumption of innocence from defendants charged with DUI, along with several other common protections we afford the likes of accused murderers and pedophiles.

In the 1990 case Michigan v. Sitz, the U.S. Supreme Court ruled that the magnitude of the drunken-driving problem outweighed the "slight" intrusion into motorists' protections against unreasonable search effected by roadblock sobriety checkpoints. Writing for the majority, Chief Justice William Rehnquist ruled that the 25,000 roadway deaths due to alcohol were reason enough to set aside the Fourth Amendment. The problem is that the 25,000 number was misleading. It included any highway fatality in which alcohol was in any way involved: a sober motorist striking an intoxicated pedestrian, for example.

It's a number still used today. In 2002, the Los Angeles Times examined accident data and estimated that in the previous year, of the 18,000 "alcohol-related" traffic fatalities that drunken-driving activists cited the year before, only about 5,000 involved a drunken driver taking the life of a sober driver, pedestrian or passenger.

Courts and legislatures still regularly cite the inflated "alcohol-related" number when justifying new laws that chip away at our civil liberties. For example, the Supreme Court has ruled that states may legislate away a motorist's Sixth Amendment right to a jury trial and his Fifth Amendment right against self-incrimination. In 2002, the Supreme Court of Wisconsin ruled that police officers can forcibly extract blood from anyone suspected of drunken driving. Other courts have ruled that prosecutors aren't obligated to provide defendants with blood- or breath-test samples for independent testing. In almost every other facet of criminal law, defendants are given access to the evidence against them.

These decisions haven't gone unnoticed in state legislatures. Forty-one states now reserve the right to revoke drunken-driving defendants' licenses before they're ever brought to trial. Thirty-seven states now impose harsher penalties on motorists who refuse to take roadside sobriety tests than on those who take them and fail. Seventeen states have laws denying drunken-driving defendants the same opportunities to plea bargain given to those accused of violent crimes.

Until recently, New York City cops could seize the cars of first-offender drunken-driving suspects upon arrest. Those acquitted or otherwise cleared of charges were still required to file civil suits to get their cars back, which typically cost thousands of dollars. Newer laws are even worse. As of last month, Washington state required anyone arrested for drunken driving to install an "ignition interlock" device, which forces the driver to blow into a breath-test tube before starting the car, and at regular intervals while driving. A second law mandates that all drunken-driving cases be heard by juries. It then instructs juries to consider the evidence "in a light most favorable to the prosecution."

Even scarier are laws that didn't pass, but inevitably will be introduced again. New Mexico's state legislature nearly passed a law that would mandate ignition interlock devices on every car sold in the state beginning in 2008, regardless of the buyer's driving record.

We shouldn't ease up on drunken drivers but our laws should be grounded in science and the presumption of innocence, not in hysteria. They should target repeat offenders and severely impaired drunks, not social drinkers who straddle the legal threshold.

Though the threat of drunken driving has significantly diminished over the last 20 years, it's still routinely overstated by anti-alcohol activists and lawmakers. Even if the threat were as severe as it's often portrayed, casting aside basic criminal protections and civil liberties is the wrong way to address it.

Radley Balko is a policy analyst for the Cato Institute, a libertarian think tank. If you would like to respond to this Slant or have one of your own (800 words), contact Brian Hickey, City Paper interim editor, 123 Chestnut St., third floor, Phila., PA 19106 or e-mail hickey@citypaper.net.