DWI is not a crime

I have, for some time now, wanted to post on DWI in general. Not so much in terms of what a suspect should or should not do, or even really the "nuances" and pitfalls of DWI law, but rather on the concept of DWI itself. Just as I no doubt became a life-long platinum member of the FBI's Terror Watch List for this post, I'm sure I will now be on MADD's Christmas card list for this one.

DWI should not be a crime. There I said it. I don't think the criminal justice system should be consumed with the "crime" of DWI. I would venture to say 85% of misdemeanor court dockets are DWI cases. Think of the efficiency we could have in our justice system without DWIs bogging us down. But that's not the reason I think DWI should not be a crime.

A DWI case in Texas is about two things: drivers licenses and money. And not necessarily in that order. A DWI conviction, in fact even a DWI arrest can have serious implications for a person's drivers license. A person pulled over for DWI and who refuses to provide a breath sample has a very real shot at losing that driver's license for 180 days. If they blow, it only 90 days. That's comforting.

Of course, if a license is suspended the person might well be eligible for an occupational drivers license, but then again, you have to pay the county a filing fee for that. It's something like $220. Of course, you also have to pay DPS another $135. Then you have to get the SR-22, or the insurance the state requires. Money, money, money.

I would say around 70% of the people that come to see me about a DWI are more concerned with their drivers license than on the fact they might get a criminal conviction that is never going away. There is more genuine concern about losing their license than the possibility they might go to jail. Something is wrong with that.

Now some might say that I have this jaded view because of the people that come to see me, and that more people are more concerned about the conviction that I think. That might be. But that's not the point. The point is this: What are we trying to achieve by criminalizing DWIs?

First let me say that I do not think it is a good idea to drink and drive. Nor do I think it is safe. But as Mark Bennett pointed out today, this is a victimless crime. There are a lot of victimless crimes you say? That's true. Simple possession of marijuana by a college kid: victimless crime. Gambling: victimless crime. Prostitution: victimless crimes.

You might point out that despite being victimless crimes, they are still crimes. That is absolutely true. But what do they all have in common that is not shared by a DWI? After being charged, and in the absence of a dismissal by the State or an acquittal at trial, they can be kept off your record. Not so much with DWI.

Why not fundamentally change the way we view DWIs? Why not make them what they truly are? They are administrative issues. They are not criminal cases. After all, a DWI case is about one of two things: an opinion or a number.

A DWI case without a breath or blood sample is an opinion crime. Do you, the jury, believe the defendant's behavior on the night in question appear to be consistent an intoxicated person? We don't typically hear about too many murder cases that deal with the opinion that there is a dead body. Usually opinion doesn't enter into the conversation in a $1 million federal drug conspiracy. But this is just everyday in a DWI trial.

And it's even better when there is a sample. A perfect example of this comes from the trial I was in yesterday with trial lawyer extraordinaire Doug Weathers over at Not Guilty.

The defendant performs the HGN test at the scene, but the officer admitted she did the test incorrectly. From that point on, the defendant refuses all tests. Well, as it turns out, our eager newbie cop decided to get a blood search warrant. Three hours after the arrest, the defendant is taken to a local hospital and blood is drawn. The blood samples are then taken for about 6 hours and put who knows where. Seriously, no one could account for them or their proper storage. About a month later, the samples are tested and the result is .09.

Now, anyone that does a little homework knows that blood can potentially degrade and actually naturally ferment. Yeah, ferment. You know, like how they make beer. The beer that has alcohol in it. Yeah, a blood sample can actually naturally add alcohol before being tested for alcohol. Uh-oh.

Needless to say, the jury convicted our client. Speaking to the jury afterward (which as an aside, is one of the more awkward things I think, but that's another post), the forewoman asked a simple question: "Did your client know the blood results?" At first, we thought she meant did he know at the time of his arrest, so we pointed out that the results were done a month later. What she was actually asking however was did he know about the results prior to trial. When we said yes, of course he did, her next question floored us. "What are we doing here?"

You guessed it. She didn't understand why we would dare take a case to trial when the number was clearly above the limit. It was clear our argument was lost on her. But it makes an interesting point.

If a DWI is truly only a matter of opinion, or worse yet a numerical threshold, why don't we just make them administrative? How is a blood/ breath test case different than a speeding ticket at that point? I say it's not.

Now, I'm not lumping all intoxication offenses into the same group here. I am still all for intoxication manslaughter and intoxication assault, and really, third-time DWIs being criminal offenses. But is there really a sound justification for keeping DWIs criminal offenses?

By remaking them into what they already are, which are administrative issues, the State can still maintain the financial windfall from surcharges and filing fees and for whatever else they charge.

Have you ever been to any kind of State administrative hearing? Talk about deterrence. That would be enough for me.

But what the hell do I know?

Comments

[Mark Bennett]

This might be a good voir dire question: "folks, the government is going to produce evidence that Joe's BAC was X. So what are we doing here? Anyone?"

[A Voice of Sanity]

In 2006, there were 13,470 fatalities in crashes involving an alcohol-impaired driver (BAC of .08 or higher) – 32 percent of total traffic fatalities for the year.

16,005 people were killed in the United States in alcohol-related motor vehicle traffic crashes (BAC of .01 or higher).

A civil offense?

[Robert Guest]

One of the best DWI posts I've read this year. You can ignore the above posters death stats. Those are not DWI cases, those are intoxicated manslaughter. That's not a victimless crime. Too much MADD propaganda has made the public believe they are one in the same.

Victimless crime enforcement insults the criminal justice system and makes us less safe.

[A Voice of Sanity]

~~"You can ignore the above posters death stats. Those are not DWI cases, those are intoxicated manslaughter. That's not a victimless crime."~~

No, you can't ignore them. If there were 6 or 8 of your "intoxicated manslaughter" cases a year that argument might fly. But this isn't an oddity - it is a slaughter. It is 10 times the toll of 9/11 -- every year, year in and year out. How many people died as a result of lawn darts? Yet they were banned outright. I don't want to share the road with drunks - why do you?

[Matlock]

Thanks RG.

VOS,

I'm not saying that any type of Intox Manslaugter or Intox Assault should not be dealt with as a crime.

If the facts justify either of those charges, then so be it. But more and more, DWI is administrative rather than criminal. I would think the "law and order" crowd would be in favor of this because it would allow prosecutors to do what they should be doing, which is prosecuting crimes, rather than collecting taxes for the state.

[A Voice of Sanity]

My personal view is that if you can control your vehicle to the extent that you stay in your traffic lane, operate the signals correctly and otherwise don't hazard others then you may, perhaps, be dealt with administratively. However if you are unable to do that as evidenced by striking another object or inadvertently leaving your traffic lane then you are clearly too dangerous to be allowed to continue.

[Edintally]

VoS,

"Alcohol-related accidents are often mistakenly confused with alcohol-caused accidents.

Nationally, 12.8% of all drivers involved in fatal accidents during 2001 are known to have been intoxicated according to the blood alcohol concentration (BAC laws) of their state. This number is based on a systematic examination of the official records of each and every accident involving a fatality during that year in the US."

"In 2005, nearly 1.4 million drivers were arrested for driving under the influence of alcohol or narcotics (Department of Justice 2005). That’s less than one percent of the 159 million self-reported episodes of alcohol–impaired driving among U.S. adults each year (Quinlan et al. 2005)."

So millions of Americans have been arrested for drunk driving with no significant decrease in the number of total accidents, no significant decrease in the number of fatalities and all it cost us is 100s of millions of dollars in fines and the degradation of our 4th Amendment rights?!

That horn your blowing plays a pathetic tune.

[Roderick White]

The DWI industry here in Texas employs hundreds (if not tousands) of people. Texas is known for being tough on crime (all crime). The number of DWI arrets and prosecutions are quickly becoming riculous. While this is truly a bad thing hopefully some good will eventually come of it. Overly aggressive DWI investigation and prosecution will expose more people and their families to just how screwed up the entire criminal justice really is. Too many jurors think only "bad guys" end up in criminal court beacuse criminal charges never hit close to home. DWI is probably the only criminal law that is not enforced in a discriminatory manner. Before the Texas Criminal Justice system will ever be fixed, more middle and upper middle-class white people need to be forced to see just how dishonest and discriminatory street-level cops can be. Aggressive DWI arrests and prosecutions will eventually piss enough people off so that we will all eventually demand more of law enforcement.

I am ashamed to admit that I truly believe it has to get worse before it gets any better.

Regarding the last DWI trial previously discussed...What we truly need is pool of jurors that have not been made completely biased by DPS and MADD propaganda.

[Joel Rosenberg]

I'm confused, which I guess isn't unusual. If we can agree that deliberate, reckless behavior that endangers others can be criminal, even if nobody actually gets hurt, shouldn't DWI be a crime? And, if we can't, should, say, reckless discharge of a firearm in city limits be treated as an administrative issue only, and not as a criminal matter?

I understand that reasonable people can disagree about both the accuracy (or honesty) of cops' observations or BAC tests; got that. But, MADD hysteria aside, isn't it a terribly irresponsible thing to be driving drunk, even if (as apparently happens most of the time), the drunk driver doesn't actually hit anybody?

[Marc]

I was very excited because I thought I had found a great new career opportunity in the medical field in Surgical Technology. I really need a career change. I'd been researching it for a while, talked to people in the field, etc. I was becoming very serious about it. However, when I looked at the admission requirements, I read that a criminal background check would be conducted, and that no prospective students with a misdemeanor on their record within the past 10 years would be accepted into the program. I got a DUI in North Carolina back in 2002. Besides that, nothing...ever. I was an occasional drinker at the time, and I barely ever drink at all now. By the way, I passed the field sobriety tests with flying colors. The officer admitted that but then insisted we do a breathalyzer. I refused it in light of the fact that he admitted that I seemed sober. I was still convicted.

That DUI completely killed the only career opportunity that I've ever truly been excited about (I've researched many, many career paths over the course of about 6 years). I am totally deflated about this.

A DUI can haunt you long after it's happened. I don't think that's fair. Besides that DUI, I've done everything right in my life. I made one mistake, and now I'm paying dearly for it.

I feel that, over the years, maybe we've gone too far and created an environment where you are never forgiven for a DUI offense.

[Robert Stewart]

My last bout with a duii. I was stopped and hadn't been in any trouble in close to a decade. No criminal history whatsoever and I have already paid dearly through the course of my life via small town harassment. Thinking they were gathering up the criminal element I suppose. Hell, I don't lie, cheat or steal and I haven't a violent bone in my body. I rarely drink and rarely visit a pub. My last two offenses were so outrageous I was infuriated. One was on private property 1 mile from any paved road. The officer was checking campfires and saw beer cans. I had been invited to go overnight catfishing. I really let him have it and a test never came to fruition. I was only seen from a distance backing my truck up so the tailgate could be used as a seat. The other case is even worse both over 5 years old. I changed my residency over it but got stopped recently in Oregon. I knew I had been drinking but you would have thought I had robbed Wells Fargo. Oh Boy I got me a big one! I was licensed, insured, registered and two blocks from my house. I am now jobless. Had my vehicle towed and a lifetime suspension applied using the tickets from the state of Idaho to enhance the penalty. Thing is, I got the 'fair' judge. The minimal sentence as they might see it. Not I! This is akin to Nazi Germany and anyone who says otherwise is lying to themselves. MADD members should be embarassed. Those statitics.. did they tell you they include snowmobiles? Did they tell you they include sober drivers who hit not sober pedestrians. They used lies to gather them and that has been documented.