"Over the limit. Under arrest." — Anti-DUI poster from DDOULA

This time of year is especially auspicious for our nation’s local law enforcers, and not because they are particularly fond of the season, or filled with holiday spirit. No, it’s more to do with another kind of spirit: alcoholic spirits, to be exact, and the drivers who imbibe them. Yes, around Christmas and the New Year, they do a brisk business (and that’s exactly what it is to them) in DUI arrests, checkpoints and even public intoxication, MIP’s and MIC’s. It’s because holiday revelers make easy pickings for the boys in blue, who make money hand over fist for their efforts, not just on the fines they rake in, but also the big financial boon to individual officers in the form of double pay for working on the holidays.

On first blush, this may seem all well and good. After all, no one would deny that alcohol can cause severe impairment and getting drunk before driving one’s car, especially at such a busy time of year when weather conditions are likely to be suboptimal at best, is a potentially deadly decision, and not just for the driver either. Why shouldn’t those ostensibly charged with protecting us from danger and enforcing the rules of the road be out in force to apprehend and lock up those dangerously intoxicated drivers for the threat that they pose to us all? Yet, the answer is a lot more complicated than the question seems to permit.

First, it is important to realize danger and risk are simply inherent to life as we know it. It is impossible to legislate them out of existence, and to even attempt to would require a massive curtailment of liberty to such an extent that life would hardly be worth living. Second, alcohol consumption itself is what winds up being criminalized, which hands responsibility and control — indeed, ownership — of one’s body over to the state, on the basis of an unconfirmed hypothesis, a probability that you will, by virtue of having consumed a certain amount of alcohol before getting behind the wheel, be the cause of an auto accident. But if the law is to be just, at least in the libertarian sense, it can only be concerned with actual events, where there is an identifiable crime, with a genuine victim who can make a claim for a material or physical loss. DUI is a law against being in a physical state the government believes is likely to lead to such a negative outcome, and the state makes itself the victim without any legitimate claim of loss against the accused.

This kind of pre-crime theorizing, with it’s pseudo-scientific postulating about de facto impairment and the seemingly infallible Breathalyzer device is actually a kind of tyranny, but it is one that we have sadly grown accustomed to here in America. And like all tyrannies, it is justified on the basis of fear. In this case, the fear of a fiery car crash caused by an out of control drunk driver. But alcohol is not the only reason for drivers to be reckless, and the consequences of a car accident are no less tragic when the driver at fault was negligent due to distraction, inexperience, fatigue, the sudden onset of a medical emergency, emotional distress or mere carelessness. All of these factors, and many more, directly contribute to tragic car accidents every day. Yet, only alcohol is specifically singled out for this kind of treatment, despite being a factor in only a small fraction of motor vehicle collisions.

The reasons for this unique treatment are actually fairly simple, but they are not what the media’s propagandists have been telling you. The most important factor in the equation is that it can be easily detected, and there are devices to estimate blood alcohol level on the scene, and expensive tests that can be administered by police, EMT’s or hospital staff which can even more accurately gauge BAC. Coupled with a legal regime that codifies intoxication relative to these test results, regardless of actual impairment, it is a simple recipe for railroading people, and collecting a ton of money along the way. There are many, many well connected businesses with an interest in expanding the scope of the DUI-industrial complex, like interlock device manufacturers, BAC measuring and monitoring device makers, involuntary counseling “services” whose clients are all court ordered to attend -and pay for- drug and alcohol abuse classes, traffic schools, private prison and halfway house operators, and more. And of course, don’t forget the tremendous cash cow it is for the state, with fines averaging several thousand dollars for even a first offense, not to mention court costs, probation fees, incarceration assessments, filing fees, license suspension and reinstatement fees, the list goes on and on.

Finally, there’s MADD. While MADD is not officially a government agency, it has been so thoroughly entrenched in the Washington D.C. bureaucratic establishment that it might as well be an executive level agency. Just about everyone who gets a DUI in America is not only forced to attend some kind of MADD workshop or educational program, which of course comes at great expense, and amounts to a forced donation to a political lobbying organization. All these forces work together to continually ratchet up the “war” on drunk drivers, which is why the so-called “legal limit” keeps getting lower and lower, and penalties keep getting tougher and tougher, so as to ensnare ever more people and get ever more money out of them when they do.

Arguably the biggest victim of this country’s anti-drunk driving enforcement regime has been the Constitution and our tradition of civil liberties. In the 1980′s, and with the help of MADD’s lobbying efforts and politicians and local officials eager to look “tough on crime,” sobriety checkpoints were championed as a means of getting drunks off the road. This policy was in direct violation of the 4th Amendment, since being stopped at a roadblock and interrogated by police constitutes a detention without probable cause, but in the controversial Michigan v. Sitz decision, the Supreme Court knowingly (and illegally) carved out what is now referred to as “The DUI Exception” to the Bill of Rights. This dragnet approach alleviates the police officer’s obligation to do any investigation, patrol the streets looking for eratic and dangerous driving, which is in actuality what s they should be doing, since that is what puts other people in danger, not the presence of one substance or another in their bloodstream. Roadblocks where state agents stop and question everyone in search of violations are a hallmark of authoritarian police states, and they arrived in America under the guise of traffic safety. However, if public safety were the real goal of DUI enforcement efforts, government policies would look drastically different, taking into account actual impairment instead of assigning arbitrary and inflexible standards of statutory intoxication that make no distinction for individual reaction to or experience with alcohol or even other drugs.

Now, it is worthwhile to examine what all this has actually amounted to upon implementation, and whether or not it has been effective in reducing drunk driving and the associated negative impacts, or if the nation’s DUI system has come with any negative consequences of its own. It turns out that the vast majority of people arrested for DUI have no prior criminal history, and that they were not involved in any accident that caused injury or property damage to themselves or others. In most cases, they have been stopped at a sobriety checkpoint, or on the pretext of a routine traffic stop, like a moving or equipment violation. Often, the police figure anyone out after a certain time of night is a suspect for DUI, and they behave accordingly. But the offenders who are in fact the most dangerous are routinely well in excess of the legal limit, usually at least double it, and often triple it. They exhibit unmistakable signs of intoxication, and their driving is clearly erratic and reckless. There need be no field sobriety tests or breathalyzers to identify these people, but the police do have to be out on patrol often enough and in a high enough concentration to spot them, but that kind of effort is rare among police forces these days. Sobriety checkpoints or indiscriminate detention of everyone they can stop after midnight allow police to circumvent these much more difficult, but much more effective strategies, while very low BAC limits and the technical means to measure them, even when no obvious outward signs of intoxication exist, mean that many drivers who are not impaired by the small amount of alcohol they’ve consumed, and therefore pose no threat to themselves or the safety of the general public, are getting arrested, and tossed in the maw of the state’s justice [sic] system.

There are countless examples from the news that demonstrate the corrosive effect stringent DUI laws are having on civil liberties, and more arrive almost daily. For instance, many local and state police budgets have come to depend so much on Federal grants for DUI enforcement programs, and the revenue those arrests generate, that they have become victims of their own success, such that declining numbers of drunk drivers on the road are not met with self-congratulatory statements of their effectiveness in keeping people safe, but instead, pressure is put on police to arrest more people, regardless of whether they are actually intoxicated, impaired or pose any danger whatsoever behind the wheel of their vehicle. This leaves many innocent people’s lives turned upside down, while they try and seek vindication in a court system, which is stacked against them, due to the obvious conflict of interest wherein the court is funded by the fines and court costs paid by the victims of these false arrests.

In Nashville, Tennessee, police officials warned their DUI officers to “make more arrests – or else,” presumably alluding to negative professional consequences, should they fail to generate the numbers their bosses expect to see — but don’t you dare call it a quota, it’s merely a “job performance standard”. The results are just as you’d expect. Innocent drivers, like young Martin Bills, get victimized by the increased pressure to make arrests. Bills blew a .00 at the scene, but despite passing all the field sobriety tests, he was hauled in for suspicion of driving under the influence of marijuana. Subsequent blood tests proved he was not, but that didn’t prevent a suspension from his job for three weeks, the postponement of his planned enlistment in the Navy, and the ordeal of clearing his name in court (oh, and as you might have expected, Bills is not white), even after the humiliation of arrest and the forcible extraction of his blood by the police.

Speaking of involuntary blood draws, Florida is now seeking to join the ignominious ranks of those states where drivers are barred from refusing to cooperate with police officers who ask them to blow into the notoriously inaccurate breathalyzer machine. So-called “No Refusal” checkpoints will be established in the coming months, where a judge will be on site to issue a warrant for a blood test should you decline to blow the officers’ tube. This kind of obvious physical extortion is itself disgusting, but the underlying assumption upon which it lies, that the public interest in investigating DUI is so compelling as to supersede your basic right to be free of violations of your bodily integrity, is even more-so. Of course, there is little public outcry, and the state’s typical blandishments about “deterrence,” and “saving lives” are sufficient to silence the already muted protests against this gross invasion of our persons.

But what about when overzealous enforcement of DUI laws does just the opposite of its stated goal of saving lives, and places innocent lives at risk? That’s just what happened on New Year’s Day, 2010, outside Mundelein, Illinois, when police stopped Jean Kotlinski on suspicion of DUI at about 3 am. Despite being the designated driver, and telling the officers as much, she was forced out of her car into the freezing, snowy weather to perform those ridiculous roadside gymnastics known as “field sobriety tests.” When, after passing those “tests” with flying colors, she was dragged to another cruiser to perform a breath test, her understandably concerned husband, Steven Kotlinksi got out of the passenger seat of their car to check on her. In typical fashion, the police completely overreacted, threatening him with their Tasers, and ordering him back in the car. Steven admits to being inebriated at the time, so perhaps his decision to argue with officers was a poor one influenced by a little too much liquid courage, his objection to his wife’s treatment was legitimate, and the officers were grossly excessive in their use of force. Despite warning them of her husband’s heart condition, police insisted “he’s gonna get Tased,” and so, even after he relented and returned to the front seat of the car, he was treated to a dose of electro-shock torture. The officer was absolutely not in any immediate danger, nor could he even pretend that he was, so the usual claims about “officer safey” simply do not apply here. In fact, he took the time to handcuff Jean and put her in the back of his patrol car, before returning to “deal with” Steven. He walked up to the car where Mr. Kotlowski was seated, belted in, and demanded he get out, saying “I’m only going to tell you once, get out of the car or I’m gonna take you out.” Of course he didn’t bother waiting for his intended victim to even try and comply, and after trying to pull him out of the car with the seat belt still engaged, the cop stepped back and fired his Taser at the father of two, while his children looked on in horror from the back seat. After being shocked 4 more times, even with the officer’s full knowledge of his victim’s heart condition, Steven Kotlowski is lucky to be alive, despite he and his wife doing everything we are told we should do with respect to celebrations where alcohol is imbibed. They had a designated driver who consumed no alcohol, and she was stopped, investigated, cuffed and stuffed, and her husband was brutally assaulted, all in the name of “keeping the roads safe.”

Finally, in perhaps the most absurd assault on common sense committed by the state in the name of punishing drunk drivers for fun and profit, Minnesota’s Supreme Court affirmed a lower court ruling saying that a person need not even be conscious, in the driver’s seat or operating a motor vehicle to be guilty of DWI. Once again, trying to do the right thing is “immaterial” to the state’s efforts to “crack down,” and make examples of those who run afoul of it diktats. Back in 2007, Daryl Fleck was sleeping it off in his vehicle outside the apartment building where he lives when officers arrived. Despite there being no evidence he had recently driven his car (it was ice cold) and that it was correctly parked in his assigned spot, the fact that his keys were visible in the center console made him “in physical control” of the car, which was considered sufficient basis to charge and convict him of dunk driving. This is completely absurd, and defies logic. It’s like charging every gun owner who carries of aggravated assault with a deadly weapon, simply because their firearm is within reach and thus they have the opportunity and the means to commit that particular crime, never mind motive or intent. There was absolutely NO CRIME committed at all. There was NO VICTIM. There was NO DAMAGE. Even if you take the state at its word that driving while intoxicated is a crime on its face, the was NO DRIVING. That this man was convicted stands as testament to the tyranny of DUI laws. The state can now lock you up for a crime you did not commit, and did not even intend to commit, simply because you had access to the means, and they think you could have, if you wanted to, and that is good enough for them to rob you of your money and your freedom. With that, I am left speechless.