Drinking and driving laws stir passions. They stir passions for me, for starters, because the law in the states where I practice outlaw a blood alcohol content of 0.08 (all states outlaw a 0.08 BAC), where BAC does not sufficiently correlate to one’s level of impairment, where excessive flaws exist in breathalyzer machines and the way they are maintained and operated, and where Virginia appellate law looks at the BAC at the time of BAC testing rather than driving for enhanced sentencing BAC thresholds (which can punish for a BAC that is higher than at the time of driving, because BAC can rise as alcohol absorbs into the bloodstream). Moreover, in the states where I practice, beyond BAC, the law looks to some level of noticeable effect of alcohol on one’s behavior, which is a much lower threshold than intoxication.

Consequently, I will here call such laws DWI laws for driving while impaired, rather than driving while intoxicated, because the laws outlaw behavior at a threshold much lower than intoxication. The DWI laws create a criminal threshold so low that they make a mockery of the criminal justice system, while feeding into the poison of an overpoliced state filled with Fourth Amendment-violative sobriety checkpoints, roads swarming with police stopping cars under Whren-presumptive moving violation suspicion when the police actually want to investigate for DWI or possession of contraband, and police bothering stone-sober drivers how much they have had to drink (which I have also experienced, when my last sip was over a year old).

Then we have the opposite end of the equation, with MADD madness, frustrated politicians pounding their fists on the dais competing for stricter DWI laws and penalties, and people from hither and yon demanding a solution to all the deaths, maiming, injury and property damage caused by drinkers who should have stayed off the road in the first place.

Yes, too much alcohol makes one an unsafe driver. However, are we going to continue throwing out our individual liberties and risk our own selves being thrown in the slammer (and into being otherwise law-abiding citizen convicted of DWI that can threaten livelihoods and other collateral items) as a result of oversimplified DWI laws that criminalize a 0.08 BAC when such a BAC level is not a sufficient correlator to impairment, that cloak flawed breathalyzer machines in the sanctity of presumed accuracy, and that make it a crime to have even a slight correlation between alcohol and behavior?

At some point, we need more caveat emptor and less of a nanny state that seeks a law and a punishment for even the slightest perceived trespasses, as opposed to a nation where each person voluntarily joins together to show compassion, understanding and support for each other, which itself can go a long way to reducing crime, and, with DWI, to reducing the sense of isolation and frustration that leads so many people to drink too much and then drive in the first place.

As to my view that we need more caveat emptor in society, if we abdicate our own good sense to instead rely on the state to take care of us against the trespasses of others, we will continue to feed an overgrown, overly powerful government that violates our rights left and right. We already know that when we step out into the street and get onto the road, we are taking various risks to our personal safety and comfort. We can either stay in the cocoon of our homes, or else become part of the larger world around us by taking calculated risks and safety measures, including knowing that a higher percentage of unsafe drivers are out and about on Friday and Saturday nights after the bars close.

When I am defending clients charged with DWI — which I do all the time — I am defending the very essence of our civil liberties. Of course, many judges and jurors do not see it that way, instead seeing drinking and driving as a blight on society. In a later blog entry, I will address shifting those virulently opposed to drinking and driving in the abstract, to seeing the case at hand for the humanity of the defendant and for its own merits.