DUI History - Part 2

One of the ways that the federal government justifies spending money is to accumulate statistics to bolster claims of “need” to spend money. So, various departments of our government can either ask for proposals for bids, or possibly be queried by an independent researcher about funding for some public interest pilot study or to update statistical analysis. In the field of drunk driving and other serious driving behaviors like aggressive driving, or the number of drugged driving arrests based on new medical marijuana laws in some states, the Department of Transportation is the federal agency that usually has the lead role in putting out bid requests.

A detailed study of accidents related to alcohol use was conducted in 1964 in the so-called “Grand Rapids” (Michigan) Study. Dr. Borkenstein oversaw this research project, which was funded by the federal government. The focus of Borkenstein’s review of prior Operating While Intoxicated (OWI) arrests in Michigan, was the causal relationship between a higher incidence of motor vehicle crashes and drunk driving deaths when the OWI suspect had a high blood alcohol level. So, the correlation between elevated BAC (blood alcohol concentration) levels and fatality accidents was explored by this study.

The report showed a significant increase in fatalities for drinking drivers who had a blood alcohol content of 0.08 grams or more, and that the higher the BAC, the greater the percentage of deaths in DUI-DWI collisions. This drunk driving fatal accident connection set in motion state and federal legislative momentum to start lowering the acceptable state DWI-DUI laws BAC alcohol levels for drivers. The first two states to enact a BAC level lower than 0.15% for their respective states were Nebraska and New York in 1972. The new standard at that time was generally set at 0.10 grams percent, but some states began enacting a 0.08 BAC standard within a decade after this study. A few states, like Georgia, initially only dropped the BAC level to 0.12. Later, Georgia dropped the number to 0.10, and then to 0.08 in 2001.

By the late 1960s, the Department of Transportation and the National Highway Traffic Safety Administration (an agency within the DOT) had begun showing legislators and the public the drunk driving statistics (and graphic crash photographs) of the staggering number of deaths they claimed were attributable to traffic crashes. The emphasis by DOT officials was on alcohol-related crashes in particular. A few drunk driving laws were passed setting a lower alcohol level for drinking drivers, but these laws stipulated that a 0.10% BAC only created an inference that an individual might be intoxicated. The charge of intoxicated driving was still rebuttable (contestable) by the accused drunk driver.

One public health scientist, Patricia Waller, summed up the prevailing nonchalant attitude of the American public in the 1970s by observing:

“Drunk driving was considered more or less a ‘folk crime,’ almost a rite of passage for young males. Most adults in the United States used alcohol, and most of them, at some point, and drove after doing so. This is not to say they drove drunk, but many of them undoubtedly drove when they were somewhat impaired. Although the law provided for fairly harsh penalties, they were rarely applied. Upon arraignment, defendants would ask for a jury trial, and because drinking and driving was so widespread, juries almost invariably acquitted the defendant, thinking, ‘There but for the grace of God go I.’”

Thanks to active intervention by the federal government and using inflated reports of death and mayhem on our highways, a substantial push was made by the federal government to force states to fall in line with enacting new laws with lower BAC levels for presumptive (DUI per se) alcohol impairment. Current television and print media news reports of accidents, particularly those involving suspected drunken drivers, dominate the police blotter and broadcast news reports of most media outlets across America. Moreover, any celebrity or politician charged with or convicted of drunk driving is on the front page of most newspapers and online search results. This notoriety from celebrity DUI cases can follow the person for a half century or longer. A DUI-DWI traffic accident with a fatality is far more likely to make the evening news today than a child molestation case.

Not satisfied with the “inference” laws being sufficient to obtain convictions, in 1972, Nebraska and New York passed the first laws stating that driving with a 0.10 blood alcohol content, if the jury believed the breath test results, was a separate crime from impaired driving (intoxicated driving). These DUI-DWI laws are sometimes called an “illegalper se” law or “DUI per se.” {pronounced DUI “ per say”}.

When talking about this kind of DUI-DWI law, the phrase “driving while having an unlawful blood alcohol level” is more descriptive, since the prosecutor need not prove “driving impairment” through symptoms like slurred speech or being unsteady on your feet, or based upon field sobriety test evidence. This type of new law would permit a suspected drunk driver who was stopped at a DUI checkpoint to be arrested for driving while impaired without the usual litany of symptoms of DUI or field sobriety tests being done.

No evidence of impaired ability to drive is needed to support a DUI per se conviction under such laws. These laws were based on the fact that at 0.10%, any person, regardless of tolerance to alcohol, was (as a matter of state “public safety” policy) significantly less capable of operating a motor vehicle, and therefore posed a danger to society. By 1979, twelve states had set an illegal per se limit, all of them at 0.10% except New Hampshire which initially set that state’s per se limit at 0.15%.

By use of withholding federal highway finding, the DOT and NHTSA was able to force many national changes of state DUI laws. One change in the 1990s was to compel all states to make age 21 the age of majority, and the uniform minimum drinking age. In 2000, President Bill Clinton pushed through a bill that caused all states to either lower their per se DUI-DWI level to 0.08%, or lose federal highway money.

Administrative License Suspension Laws target Driver’s License Suspension or Revocation before the Criminal Case is Resolved

In the 1970s, the DOT, through NHTSA, pushed for other, immediate civil driver’s license sanctions of DUI-DWI-OWI drivers, by suggesting that new administrative license suspension (or administrative license revocation laws) be enacted by all states to take away (or greatly restrict) the right of an accused drunken driver to continue to drive before the criminal case gets resolved. This move was justified by the federal agency, saying that it is NOT double punishment for one event, but a safety measure to prevent a possible problem driver from reoffending.

In 1976, Minnesota then became the first state to enact an “Administrative License Revocation” law. Also called “Administrative License Suspension” laws in some states, this type of law was recommended by NHTSA as a means of suspending or revoking an accused DUI-DWI driver’s driving privileges before the arrested DUI driver could reach trial on the underlying criminal charges. The concept for these laws was that any person who submitted to testing and rendered a test result equal to or greater than the state’s presumed “impairment” level (the State’s DWI per se limit) would be summarily suspended from driving or have his or her driver’s license revoked or restricted for a period of time. This type of ALS or ALS license suspension was added to the existing implied consent suspension or revocation that was imposed when a driver refused to be tested.

These proceedings were civil or administrative in nature, to avoid double jeopardy concerns. Now, whether a driver refused testing and suffered a separate implied consent driver’s license suspension or revocation penalty of loss of license for not taking the State’s test, any driver who submitted and had a result equal to or greater than the state’s DUI per se legal limit would also suffer a suspension or revocation. Damned if you do and damned if you don’t.

Neither the press nor the public paid much attention to all the new activity of the dozen or more states that were passing new laws setting administrative license per se DUI limits. This lack of concern was reflected by a two-inch article printed in the October 16, 1979 edition of the New York Times, which noted that an all-time record number of people had been killed in “road accidents” in 1978 — 50,145 people. Be aware that these numbers are inflated, because they include ANY accident where ANY person — including only the dead person and not just the arrested driver, even if the deceased was a pedestrian — if he or she had a measurable level of alcohol. So, to break it down, if any person in the “incident” had a 0.01 or more BAC, this was counted as a drunk driving accident.

In 1980, the National Highway Traffic Safety Administration published its first “issue paper” on illegal per se, and the benefits of using preliminary breath testing devices to screen suspected drunk drivers at the roadside. NHTSA also proposed model language for both types of alcohol-based drunk driving laws so that states could easily adopt new laws embracing these changes. A huge shift in state governments’ attitudes as well as the federal government’s attitude toward “drunk driving” and accidents was about to occur, triggered primarily by some grieving mothers—and fathers—who spoke long and loud about the embarrassing lack of national attention being paid to “problem” drivers and DUI-DWI crashes causing serious injuries and fatalities.

The Ascendancy of Mothers Against Drunk Driving and other Organizations Against Drunk Driving, like SADD

A California woman by the name of Candace (Candy) Lightner lost her 13-year old daughter, Cari, to a drunk driver in May of 1980. Cari, a pedestrian, was struck from behind and killed as she walked to a friend’s house. She immediately started publicly questioning how this repeat offender drunk driver was still licensed to drive.

After her heartbreaking story became national news, Candy Lightner soon heard about Cindy Lamb, a Maryland mother who — six months before — had survived a devastating accident with a drunk driver who struck her vehicle head-on while traveling at an estimated 120 miles per hour. In the November 1979 crash, her five-month old daughter, Laura Lamb, was rendered a quadriplegic. Both of the accused drunken drivers in these two high profile DUI cases had atrocious prior driving histories, including multiple prior DUI-DWI convictions.

The efforts of these two mothers sparked a national movement of citizens — mostly mothers of victims — that eventually became known as M.A.D.D. M.A.D.D. was originally named “Mothers Against Drunk Drivers,” but the name was changed to Mothers Against Drunk Driving in order to focus on theconduct of driving drunk rather than the “person” behind the wheel. This group’s success has led to at least a dozen other drunk driving organizations and non-profit groups (R.I.D., S.A.D.D., R.A.D.D., etc.) being formed to promote similar public awareness of the risks of DUI, or to launch political influence agendas.

M.A.D.D. has lobbied for, and has been able to dramatically influence tougher DUI-DWI legislation in every legislature in America. Raising in excess of $50,000,000 each year has facilitated M.A.D.D.’s political activities. Lobbying efforts, letter-writing campaigns, picketing, fundraising, appearing on televised news broadcasts, and similar activities have resulted in M.A.D.D. becoming one of the best-known and most widely funded non-profit groups in America.

In the last 35 years, approximately 3,500 legislative bills or laws have been submitted to legislators across America as a result of the MADD movement. This source of pressure to increase punishment for all DUI-DWI offenders is the leading cause of the major changes in drunken driving legislation in America over the past twenty years. Presently, and for the last several years, MADD has been pushing all states to mandate installation of an ignition interlock device on the vehicle of every first DUI-DWI offender. Over half of the state legislatures have done exactly that.

SADD or “Students Against Drunk Driving” was formed in 1981 in Wayland, Massachusetts. Taking a different tack from MADD, SADD focuses on student education about alcohol and drugs, and is the nation’s leading peer-to-peer youth education and prevention organization that fights against drunk driving. SADD has thousands of student chapters in middle schools, high schools, and colleges that rally around the joint “prevention” strategy that promoting traffic safety and stopping drug abuse are the best methods of reducing young adults’ health risks.

Other politically-motivated organizations against drunk driving [such as the Mobil Eyes Foundation – which has Internal Revenue Code 501(c)(3) non-profit tax status] have started offering “bounties” ($50) for concerned citizens calling the “911” operator and reporting people who the caller believes are driving drunk, if such information leads to a DUI-DWI conviction. So, drunk driving organizations are plentiful, but much of the tax money needed to aggressively pursue DUI drivers has been removed from state budgets or curtailed since the Great Recession of 2007 started.

Although MADD leaders deny being on a mission to re-institute Prohibition, many critics believe that this powerful group intends for that to happen. MADD also pushes other politically powerful groups to rally behind their efforts. The AMA is one of those groups.

In January of 1986, the same American Medical Association that pushed for a 0.15 grams percent BAC presumptive level in 1946, has now announced a new position that the federal government should immediately lower the DUI per se BAC level to 0.05 grams percent. This BAC level occurs when the amount of alcohol ingested is slightly more than 1 glass of table wine or 1 regular beer, for a female weighing 105 pounds.

Nearly two decades later, in October of 2005, MADD began calling for the DUI “per se” limit in America to be lowered to 0.05% on a national basis, and is also pushing for the same change in Canada. Only the United States and Canada still have a 0.08 grams percent DUI per se alcohol level as the level of impairment.

These efforts to garner support were followed, in 2013, by the NTSB (National Transportation Safety Board) advocating that the 0.05% BAC level is needed in the United States. So far, no move has been made to implement the new, lower BAC standard by use of the threat to take away federal highway funds for states that do not conform. MADD officials are closely aligned with the NTSB.

Even if the new BAC level was put into place, efforts at aggressive DUI law enforcement in America have sagged in many states for nearly a decade, apparently due (in large part) to the Great Recession leading to local and state governments opting to not spend the additional money or to delegate police resources for training and equipping DUI test force officers, to mandate intensive night patrolling for drunk drivers, and to utilize DUI checkpoints in the states that permit them to be set up as sobriety checkpoints.

Today, the suspected drunk driver the police are following is more likely to be texting while driving, and not driving while drunk. But, an officer in 2016 is more likely to pull over a driver for drunk texting, meaning that texting caused the traffic violation, and then the driver also gets charged with drunk driving. A routine traffic offense that leads to a pullover by police (or at a police checkpoint) becomes a DUI-DWI arrest merely based upon the smell of alcohol or the odor of marijuana being detected during the police encounter.

The following statistics for drunk driving arrests from the FBI show how changes are occurring in drunk driving enforcement:

• 2014 – 863,598
• 2013 – 1,116,824
• 2012 – 1,282,957
• 2011 – 1,215,077
• 2010 – 1,412,223

As a frame of reference, between 1992 and 1994, between 1.6 million and 1.9 million drunk driving arrests were made each year. The population of the USA has grown substantially since then, so this 50% drop in DUI arrests is counterintuitive. [Source: www.FBI.gov]

By way of example, over 85,000 arrests for DUI were made in Georgia in 1993, and less than 30,000 arrests for impaired driving were made in 2013. In that 20 years, the population of the State of Georgia has grown by over 3 million residents. So, drunken driving has either subsided, or police departments in the state have quit arresting DUI drivers in the same manner they were in 1993. Let’s look further.

Because North Carolina is a Southern state with almost identical population as Georgia, and North Carolina had nearly 50,000 DWI arrests in 2013, and neither state offers diversion, it seems clear that the latter conclusion is most likely the case, and not the former. Illinois has a larger population than either GA or NC, and has fewer than 5,000 arrests, but this number is a reflection of a first-time offender being offered diversion, and not showing up on state DUI reporting records from that jurisdiction.

The leading state for DUI arrests (and for population) is California. Over 25% of all DUI arrests in America are made in California, despite only having 13% of the country’s population. California has no diversion for first-time offenders. This state is aggressively pursuing drunk driving cases, as is being done in North Carolina. Most states have kept their tough DUI penalties and loss of driving privileges after a drunk driving conviction.

DUI History - Part 1