Tough-on-crime-talking Mike Crapo sees life from the other side of the handcuffs

Dec 26, 2012 Tough-on-crime-talking Mike Crapo sees life from the other side of the handcuffs

Homo sum: humani nil a me alienum puto./I am human: nothing human is alien to me" – Publius Terence.

As I tell many of my clients charged with drivin under the influence of alcohol ("DWI"), the only difference between them and me is that they got caught. Of course, I stopped drinking after driving cold turkey over a quarter century ago, and have not imbibed at all for over seven years.

The DWI laws are so draconian that it takes but two people sharing a bottle of wine at a restaurant to make the driver a potential DWI arrestee. When I started practicing criminal defense in 1991, it was a golden age when driving with a 0.10 blood alcohol content ("BAC") in Maryland created but a rebuttable presumption of DWI guilt. Then, the federal government came along — just like it did in the 1980’s, strongarming states to raise the drinking age to twenty-one (but still willing to send eighteen to twenty year olds to war) — with new legislation conditioning ongoing federal highway funding on a state’s making it a crime to drive with a 0.08 BAC.

Unless and until the DWI laws outlaw DRUNK DRIVING rather than outlawing slight impairment from alcohol or a low BAC level of 0.08 — and nobody know their BAC level in advance of being arrested and tested — the DWI laws are a farce denigrating respect for the criminal justice system and lining courts’ coffers with $millions in fines and costs for DWI convictions.

Now comes along Idaho Republican Senator Mike Crapo with a DWI arrest — with a January 4, 2013, arraignment — joining such other public officials charged with DWI as former Wicomico County chief prosecutor Davis Ruark; former Alexandria, Virginia, police chief David Baker; Maryland Delegate Herman Lee Taylor, Jr. (acquitted in court, and prior to his arrest sponsored a bill in 2006 to require a scarlet letter license plate emblazoned with "DUI" for those with over two drunk driving convictions); and Maryland house majority leader Kumar P. Barve, who entered a guilty plea to DUI and received a probation before judgment in Montgomery County.

To this very day, Senator Crapo’s official website proclaims: "As a basic principle, any person convicted of injuring another individual should be punished to the highest extent of the law."  Perhaps his recent DUI arest will show Senator Crapo to take a more balanced and in-depth view and action on the criminal laws and criminal justice.

In any event, here are some additional thoughts on Senator Crapo’s arrest and prosecution

 – Crapo is presumed innocent and his case may be winnable. For instance, the 0.11 BAC reading could be a false high. These machines can err.

– Crapo’s BAC reading will not come into evidence if no arrest probable cause is found.

– The relevant BAC in Virginia is from the time of driving. BAC can rise between time of driving and BAC testing, as alcohol can be absorbing into the bloodstream.

– Breath BAC testing margin of error arises from machine error, operator error, excessive blowing and the machine’s assuming a mouth temperature of 33 degrees celsius, whereas most people have a higher mouth temperature than that. The higher the mouth temperature, the higher the margin of error on the breath testing machine.

I wish Mike Crapo the best in his pending DWI case, and hope that this case will enlighten his approach to criminal law in the Senate.

Drive with defective automobile equipment at your own risk
Ray Bryant left his body last year. A great musician inspiring to seize life by its horns
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