I have never been a fan of the DWI/DUI crusade foisted upon the driving public by groups like Mother’s Against Drunk Driving (MADD).  I always felt they should have stuck with something they know, like blow jobs. The whole DWI/DUI effort from initial stop to adjudication is a circus to make it seem like the powers that be care, while rendering enforcement efforts ineffective. Now comes a study destined to undermine DWI/DUI Enforcement and Marijuana by calling into question the concentration of intoxicants needed to be considered intoxicated.

The article rightly points out the the established limit for alcohol is .08 is largely an arbitrary, one size fits all.  The same thing is happening for marijuana. Just like any other cop, I can relate anecdotal stories of drunks so wasted they had to held up in order to take the breath test and then only check a .10% BAC. The next guy in line appearing as sober as judge promptly blows a .38 BAC. (.40 BAC and the guy is going to the hospital.) So the threshold may need a little work. We had one drunken sergeant that regularly blew higher than the arrestees when he was conducting breath tests.

The second problem with current DWI enforcement, at least in Texas, is the elaborate charade the officers must participate in, in order to make the case. Texas had an Intoxilyzer model built just for its needs.  It is kept in specially designed and locked cabinets.  It has many bells and whistles that other DWI testing programs considered and rejected.  An Intoxilyzer operator in Texas goes through 40 hours of training. The device is controlled by DPS so finding a device and an operator can be a real challenge.  DPS talks about the integrity of the program.  DWI defense attorneys talk about all the loopholes and bars to successful prosecution placed in the program just for them. The last DWI I arrested took over three hours to process, for a misdemeanor that would likely be plead down to “blocking a highway”.

There is a solution. It was a formula that I tried to follow, based on what an old school highway patrol sergeant claimed was essential to making a good case. He said, in order to have a drunk driver, you need a drunk car, find three hazardous moving violations and put them in the report.  This was easier, although not quite as effective, as the advice the Brazos County Attorney gave. “Don’t be delicate, if they shit or pissed their pants put it in the report”. Guaranteed guilty plea every time. Never could figure out how to get the drunks to shit on command.

Gonna go back to the two greatest investigators of all time Bert & Ernie of Sesame Street.  “Which one of these isn’t like the other?” What are we trying to accomplish? Arrest drunks or prevent hazardous moving violations by possibly impaired drivers which lead to deaths and injuries on the highway? I would maintain it is the second.  If that is the case why do we need to quantify the amount of alcohol, marijuana, drug, or controlled substances in the operator’s blood. How about:

DWI/DUI: a person commits an offense when that person commits a combination of aggravated traffic violations and/or moving traffic violations and further investigation gives the officer probable cause to believe that the vehicle operator has consumed a substance leading to possible impairment of their ability to operate a vehicle safely.

(a) Probable cause to believe that a vehicle operator is impaired does not require a chemical test and may be based on observations, statements, behaviors exhibited, odors, presented by credible and reliable persons.

(b)Intoxication is not an element of the offense.

(c)Aggravated traffic violations are those violations that create the potential for serious bodily injury, death, or substantial property damage.

There are couple of other adjustments that would be needed. The new offense would drop to a class “C” misdemeanor  with a specified fine range at the upper end of the spectrum.  This would remove a significant burden from the court and probation system.  The main opposition will come from criminal defense attorneys that see their bread and butter cases melting away.

There was  a study done by the National Highway Traffic Safety Administration (NHTSA) that indicated that the average first time DWI offender had driven drunk more than fifty times prior to their first arrest.  The MADD mothers used this to illustrate that more enforcement was needed.  Turn it inside out, maybe it means that intoxicated driving is generally not a problem until it is combined with hazardous moving traffic violations.