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

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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.