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"The government consists of a gang of men exactly like you and me. They have, no special talent for the business of government; they have only a talent for getting and holding office."---H.L. Mencken

The Non-Crime of Drunk Driving

by Russ Stein

The state criminal statutes concerning drunk driving are unjust, and are so vague and broad that certainty of compliance with the law is impossible. The law threatens anyone who mixes drinking, no matter how temperate, with the operation of a vehicle. I should know. I worked briefly as a deputy district attorney in a rural California county, prosecuting DUI cases. And I sincerely regret having had anything to do with the enforcement of the drunk driving laws. Here follows a brief outline of California's drunk driving system (which resembles the systems of most other states, thanks to federal dictates):

First, the law is enforced by highly specialized and sophisticated police forces from multiple agencies & departments, state, county, and city. These police zealously enforce two separate DUI statutes, Vehicle Code 23152(a) and 23152(b). 23152(b) bans driving with a blood alcohol content of .08% or greater. Clearly this limit is too low. But as Lew Rockwell has written, the real injustice of the law is not the low threshold, but the fact that the mere act of driving with excessive blood alcohol is a crime at all. The purpose of the law is to forbid drivers from creating an unnacceptably high risk of a traffic accident. This flies in the face of all reason & centuries of legal tradition. As every first year law student knows, liability for negligence requires an unreasonable risk and damages. Yet California's 23152(b) criminalizes the mere creation of a risk – and query whether a .08 driver poses a real risk – without respect to any damages or consequences at all.

Every day when I was a prosecutor I saw drunk driving defendants in court who had not caused any accident, injury, or property damage, facing devastating criminal penalties merely for driving with an unlawful blood alcohol content (BAC).

In fact, many defendants I saw had already arrived at their destination without incident, and were arrested subsequently during unrelated police investigations, when the police noticed symptoms of alcohol consumption, and evidence showed that the defendant had driven there. The fact that there was no crash made no difference.

Again, it is not that .08% is too low – it is. But 23152(b) would still unjustly penalize drivers who caused no harm whatsoever even if the limit were raised to .10%, or to .60%. As Mr. Rockwell notes in his column, a further defect of the law is that people who wish to comply cannot know with any security what their BAC is until the police test it. This is the exact definition of tyranny. When citizens cannot know how to conform their acts to the law, the rule of law is at an end.

But it gets even worse. At least under 23152(b) there is a clear definition of lawful and criminal behavior. Under 23152(a), it is criminal to drive "under the influence of any alcoholic beverage or drug . ." In practice "under the influence" means whatever the authorities decide it means. Prosecutors often file charges when blood tests only show a BAC of 0.07%, 0.06%, or even 0.05%, when they have evidence that the defendant weaved or drifted, or that the defendant performed poorly on police administered "Field Sobriety Tests". Thus 23152(a) subjects anyone who drives after drinking even a totally insignificant amount of alcohol to the threat of prosecution, if prosecutors think they can persuade a jury that the person drove "under the influence" – whatever that means.

A favored prosecution trick is to charge defendants with less than .08% blood results with a 23152(a) violation, even when there is no evidence showing the defendant was under the influence, in hopes that the defendant will plead to a lesser charge rather than risk a jury trial. Prosecutors often make a big show about "offering" to allow a plea to the lesser included charge when no evidence exists that a below-the-limit defendant was under the influence, but of course if the defendant was below the limit and was not influenced, there was no crime! But many defendants take the deal. This isn't "law" at all. The standard of 23152(a) is so vague and dependant on the arbitrary whims of the authorities that prosecutions under this statute are nothing more than displays of unrestrained government power. Indeed, under this statutory scheme there is no way to mix driving with drinking – no matter how small the quantities – and be safe from the threat of criminal penalties. Indeed, so called "zero tolerance" laws banning driving with any blood alcohol at all would be a vast improvement on this situation. At least then people who wished to behave legally would know that compliance requires no drinking whatsoever if you wish to drive.

Another feature of the the drunk driving laws is that they create a vast and parasitic industry of specialized sobriety police, tow truck companies, judges, DUI defense lawyers, DUI prosecutors, and ignition interlock companies. Particularly ghoulish are the government's blood testing labs, which draw and test blood from arrested suspects, and the blood "experts" who testify for the prosecution in DUI trials. Interestingly, these same blood labs participate in the drug war, testing blood for "controlled substances." One comic aspect of the DUI industry are the court ordered DUI schools, which are expensive and silly wastes of time where students watch crash videos in a supportive AA environment.

The drunk driving laws also bring in huge amounts of money to the county governments and courts that enforce them. In my experience, fines for first time offenders could reach as high as 1,200 dollars, plus booking fees and victim's fund fees. Once a defendant has been convicted of a DUI the Department of Motor Vehicles automatically suspends his license. Since modern life requires driving, the defendant now runs the risk of prosecution for driving on a suspended license, which will bring in another $1200 fine for the government upon conviction. Can't pay? The court will order a convenient monthly payment plan at $50 a month until the entire amount has been paid. Such fines can financially destroy a working class person and cripple a middle class person. But by far the worst indictment of the criminal drunk driving laws that I can think of were the types of people the law sucked into the torture of the criminal justice system. In my experience the majority of defendants had no criminal record and no experience with police or the courts. Unlike other classes of criminal defendants, who were mostly young males, DUI defendants were just as likely to be elderly, or middle aged women, or thirty-something professionals, as they were to be young males. This suggests that the problem is not with the defendants, but with the law. The frusteration, fear, and humiliation was obvious to anyone in court who cared to look, and I was embarrassed to be part of the system that was torturing them.

August 4, 2001

Russ Stein [send him mail] wants to be a defense attorney and libertarian writer. He is currently in California but is threatening to move to Utah or Colorado.

Copyright 2001 Visit his site at


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