DUI Position Paper of the National Motorists Association

The NMA supports drinking and driving regulations based on reasonable standards that differentiate between responsible, reasonable behavior and reckless, dangerous behavior. The NMA does not support “zero tolerance” concepts, nor does it endorse unconstitutional enforcement and judicial procedures that violate motorists’ rights.

Basic Tenets

1. We believe that penalties for DUI/DWI should be related to the degree of risk involved, and that these penalties be equated with penalties for equal-risk violations of other traffic safety laws.
2. We support those legislative and enforcement initiatives that are effective in achieving stated goals of deterrence and removal of impaired drivers. We do not support initiatives based on revenge, political expedience, or emotional hyperbole.
3. We believe that all Americans should enjoy the same Constitutional rights and privileges. Legislative or enforcement initiatives denying these rights and privileges to motorists violate this uniform application of Constitutional standards.
4. We believe in basing laws and penalties on actual evidence of impairment whenever possible. Blood alcohol content should only be used as prima facie evidence of impairment, and there should be flexibility in laws that base penalties on blood alcohol content.

Specific Positions

1. We oppose drunk-driving roadblocks on the grounds that they violate protection from warrantless search and seizure, and fail to meet probable cause standards. They have not been shown to be effective at deterring impaired driving.
2. DWI penalties based on blood alcohol counts should be graduated to reflect the potential severity of impairment. The more severe penalties should be phased in at a BAC of .15 where impairment begins to directly correlate with accident involvement. Lower penalties should be adopted for less severe DWI violations.
3. We support increased penalties for repeat offenders, but maintain that rehabilitation be the primary goal in all but the most severe cases.
4. Any mandated BAC test must be based on clear reasonable suspicion of impairment, not an unrelated traffic violation.
5. Breathalyzer tests should be used for screening purposes only. They should have no standing as actual evidence of Blood Alcohol Content. However, we support that the driver always have the right to a blood test and be notified of that right should he wish to dispute the results of the breath test.
6. We are concerned with deterring impaired driving, not with regulating how a driver might become impaired. A driver is equally responsible regardless of where the drinking takes place be it at home, in a vehicle, or at a commercial establishment.
7. A “technically” impaired driver should not automatically be more heavily penalized if they are involved in an accident. The penalties should be based on the severity of the accident and the extent to which the impaired driver was at fault.
8. We oppose so-called “Administrative License Suspensions” since they are not an effective deterrent and violate the right to due process.
9. We support the detainment of any driver arrested on an impaired driving charge until sufficient time has passed to allow the individual to safely drive, or for other transportation arrangements to be made.
10. We support the right to a jury trial for all accused traffic violators, particularly defendants accused of severe offenses for which long license suspension or jail time could be imposed.
11. We oppose measures that revoke or withhold a driver’s license that do not directly relate to driving. As related to drinking laws, we are opposed to license suspension for non-driving related violations.
12. We do not support age-based BAC standards (e.g., “zero tolerance”) for persons under 21 years of age.
13. We do not support reducing blood alcohol content standards to .08% for non-rebuttable conviction of DWI.

Periodically, a member will write and express concern over the NMA’s support of “drunk drivers.” This is usually motivated by our opposition to some particular anti-DWI initiative.

The NMA does not support, encourage, or condone drunk driving. The NMA supports constructive and effective solutions to the drunk driving problem that are fair, equitable, and respective of fundamental rights.

To better explain the position of our association on this emotionally charged issue, it is important that the problem be properly defined. Thoughtful, objective discussion of this subject in the popular media has been sadly lacking. The press has been content to reprint whatever they receive from self-serving and vested interests.

The result has been a misinformation campaign of staggering magnitude. Claims such as “50% of all highway fatalities are caused by drunk drivers” are unmitigated propaganda. The public officials and special interest groups that perpetuate this myth know it is a lie but persist in this kind of gross deception.

A far more likely estimate of “drunk-driver-caused” fatal accidents is 10%, still a very large and unacceptable number, but not quite the national crisis championed by anti-drinking advocates. What the public has not been told is that the “drunk driver” numbers promoted by these public officials and special interest groups include any person, with any amount of alcohol in his system, who dies in a traffic accident (some exceptions for vehicle passengers). This includes accidents where alcohol impairment was not a causative factor, pedestrians and bicyclists with alcohol in their systems, and suicides. Given that the vast majority of adults in the United States consume some form of alcoholic beverage, it is not unreasonable to expect the presence of alcohol in their blood. Leaping to the conclusion that the presence of alcohol in the blood of an accident victim equates to an alcohol-caused fatality is fundamentally illogical.

The whole purpose of this discussion is not to diminish the seriousness of the problem. However, it should cause you to question the merits of the “solutions” proposed by the same interests and agencies that have so grossly misrepresented the problem.

Let’s look at some of the proposed solutions.

Lower the Legal BAC
Historically, the BAC for automatic categorization as “drunk driving” was .15%. This was, and is, the level where impairment is usually readily discernable. Most fatal and serious accidents involving alcohol continue to reflect .15% or higher BACs.

The current .08% BAC, now employed in all states, represents a lowest common denominator approach. It was adopted to expedite the arrest and conviction of drivers who do not necessarily exhibit visible levels of impairment. It is the DWI equivalent of the 55 mph speed limit. Lowering the legal BAC to this level is little more than an example of pandering to neoprohibitionists.

Lowered BAC levels serve to intimidate casual and social drinkers and give the police unbridled discretion to test and arrest almost anyone who has been drinking. Meanwhile, true drunk drivers floating along with .25% BACs continue to wreak havoc on the highways. A law enforcement officer cannot be looking for swerving, careening drunks if he is tied up with the processing of some miscreant who had four beers at the church picnic and blew a .08% BAC, after a traffic stop for a burned out license plate bulb.

Roadblocks (Sobriety Checkpoints)
Sobriety checkpoints are police roadblocks and that is what we will call them, police roadblocks.

Police roadblocks are symbolic and characteristic of police states. They should be anathema to any person with an historical perspective of how authoritarian governments exercise control over their citizens. Roadblocks are meant to intimidate and restrict the movement of people, goods, and ideas. No free society should tolerate any precedent that rationalizes the use of roadblocks.

When the U.S. Supreme Court approved the use of roadblocks for DWI enforcement, they opened a Pandora’s box of abuses. The Court addressed the issue solely from the DWI perspective. Police agencies have interpreted this decision as a license to set up roadblocks for any purpose they choose.

Currently roadblocks are used for vehicle safety inspections, seatbelt use, driver’s license possession, mandated insurance coverage requirements, and even to restrict the movement of people from one neighborhood to another neighborhood, on public streets!

Severe Penalties
The notion that severe penalties can deter drunk drivers has some validity. However, that deterrence often lasts no longer than the length of the punishment. The individuals who personify the public’s image of a drunk driver are not typically swayed by “get tough” laws. However, a responsible, social drinker, apprehended in a “sobriety checkpoint,” could well find himself facing license revocation, jail time, five years of horrendous insurance surcharges, and possibly the loss of his job. It happens every single day to people who have hurt no one and who are not a threat to anyone’s well-being.

Draconian penalties are promoted by persons who are primarily interested in an overall assault on the use of alcohol, or are motivated by revenge. Developing solutions to the complicated problem of drunk driving and the resulting tragedies is not one of their priorities.

Administrative License Suspension
Because there are at least three laws for every known human activity, there is little mystery as to why our courts and jails are overwhelmed. Because the consequences of a DWI conviction can be so severe, many defendants have taken their cases to trial (one of the unintended consequences of harsh penalties). This, in turn, clogged the courts and lead to long delays before the final judgment, usually “guilty,” was rendered and the errant driver was ordered from the road.

The promoted solution to this problem has been to take the defendant’s driver’s license before the trial. In other words, apply the punishment first and worry about guilt or innocence at some later date. In almost any other context, this would be viewed as a ludicrous system of justice, but not DWI.

To avoid constitutional challenges, the proponents of A.L.S. (administrative license suspension) always offer the opportunity for a perfunctory or superficial administrative hearing. These are kangaroo courts designed to process defendants as quickly and cheaply as possible. Any similarity to a fair trial is illusory.

Just as with roadblocks, the danger of A.L.S. is the precedent it expands. (The word “expands” is used because the right to a fair trial for many traffic violations has already been severely eroded to the point of being invisible.) Do we just continue to limit access to the courts because the system cannot handle the flood of new “criminals”? Keep in mind that although the vast majority of DWI defendants have not been involved in an accident nor have they hurt anyone, the penalties they face are extremely harsh, in fact, more harsh than the punishment for many crimes against property and persons. However, some states, and the U.S. Supreme Court, do not believe that the DWI defendant is even entitled to a jury trial (unless the penalty includes over six months in jail).

Unintended Consequences of Low BAC Standards and Excessive Penalties
A discussion of the unintended and negative consequences of the current catalog of anti-DWI laws is seldom found in the print or electronic media, nor has there been a concerted effort on the part of government or private organizations to research and quantify these effects. As a result, certain of the following remarks are anecdotal rather than being based on actual research results.

“Hit and run, leaving the scene”
Persons who might otherwise assume responsibility for an accident or render assistance to accident victims are intimidated by the possibility of being found guilty of “drunk driving,” even if they had drunk very little and were not directly involved in causing the accident. Consequently, they do not stop or render assistance.

“Attempts to elude”
We have read of threefold increases in drivers attempting to outrun police. This increase corresponds with the ratcheting downward of legal BACs and the ratcheting upward of DWI penalties. It has been reported in more than one source that one in four high speed pursuits results in a serious accident, often involving innocent bystanders.

“Avoidance of needed medical treatment”
For fear of being reported to police or being charged at the scene of an accident for DWI, people are deliberately leaving an accident scene, injured, and not reporting for treatment until there is no likelihood that they could be charged with DWI. This runs counter to the well-proven practice that immediate injury treatment is the most effective and the most likely to prevent loss of life.

“Economic losses”
The segment of the population most effected, and most intimidated by the current avalanche of DWI laws is not the alcoholic or hardcore drinking crowd. It is that group of people who might patronize eating and drinking establishments, community festivals, company picnics, and related hospitality businesses, and who conduct themselves in a responsible manner. The difference is, with .08% BACs and job threatening sanctions, they are now afraid to participate in this type of social activity with friends and relatives.

The businesses and organizations that cater to and sponsor these activities suffer accordingly in lost income and lost support.

“Pedestrian and bicycle fatalities”
With the decrease in alcohol-related, motor vehicle accidents has come an increase in alcohol-related pedestrian and bicycle accidents. This is not to suggest that society is better off putting these people in automobiles. However, the net result of the current DWI policies is the partial exchange of one type of accident for another.

“Misallocation of public resources”
Intimidating, apprehending, adjudicating, and jailing persons who are not serious hardcore offenders takes valuable resources away from locating, stopping, and treating the persons who are most likely to cause a DWI-related accident. The system can only process and accommodate so many people. The choice is to focus on those who are causing the problem, or severely punish the general population that crosses an arbitrary BAC threshold.

“Inequitable personal consequences”
The “one size fits all” and “hang ’em from the highest tree” mentality that dominates current anti-DWI strategies does not fairly accommodate the diversity of circumstances involved with DWI convictions. A high risk, accident-prone, repeat offender may view a DWI conviction as one of life’s little inconveniences and a chance to live off the county for 30 days. Conversely, a well-educated, successful employee and family man might lose his job, future employment opportunities, and reputation for a one-time technical violation of a BAC standard based on politics and platitudes.

The standard retort to any of the aforementioned concerns is “don’t drink and drive and you won’t suffer these consequences.” This is comparable to saying “if you don’t want to get speeding tickets, don’t drive over the speed limit.”

Any law or regulation aimed at human activity must have an element of reasonableness. It must recognize that there are always competing motivations that dictate human behavior.

Most people drive to reach a destination. The purpose of that destination may be work, family responsibilities, maintenance tasks, socializing, or recreation.

In our society (as in most societies), the vast majority of the adult population consumes beverages containing alcohol. If this is at the destination end of their trip, they will inevitably be returning with some amount of alcohol in their systems. In modest amounts, this rarely causes a problem or safety risk to others. Most people recognize this and act accordingly, in a responsible manner.

A zero tolerance approach to drinking and driving will not work. Moreover, it will expose motorists to a rash of officially sanctioned abuses that will exceed any of those we currently endure.

That brings us back full circle to the establishment of a reasonable standard that can be recognized, understood, and complied with by reasonable people. The standard that meets that criteria is one based on discernable impairment.

Discernable impairment need not be BAC dependent. Different people experience different levels of impairment at the same BAC levels. If a person’s driving indicates impairment (e.g., erratic maneuvers of speeds, or running into fixed objects) and they have alcohol in their systems, they should be a candidate for a DWI citation.

If a single standard BAC is to be established as the automatic threshold for a DWI citation, it should be high enough to reflect discernable impairment among the general population. An appropriate and enforceable BAC of .12% would represent a reasonable standard.

Please note that we are not saying a .12% BAC is necessary for a DWI conviction. Rather, that for an automatic DWI conviction that does not involve or require discernable impairment the BAC must be at least .12%. Given that the average DWI arrest involves a BAC of .15% to .17% (regardless of the legal BAC), a .12% BAC remains well below the typical level for DWI arrests. It is also a level of intoxication that most persons will recognize as representing a degree of impairment.

Penalties and punishment for DWI convictions should reflect the degree of intoxication and the severity of the circumstance. A person charged with having a .25% BAC should be assessed a greater penalty than someone charged with a .12% BAC. Furthermore, if an intoxicated driver causes property damage or personal injury, the penalties should reflect those losses and be paid to the victims, not the state.

By targeting higher BAC operators and repeat offenders, the state can focus its enforcement and treatment efforts on truly dangerous drivers, the small percentage of true drunk drivers that menace our streets, roads, and highways.