Recently, most of us learned that Bruce Springsteen was charged with Driving Under the Influence (DUI) while riding his motorcycle in a New Jersey recreation area in November. His subsequent ad for Jeep which showed him driving in his customary rough-hewn look was pulled, I believe, after its initial airing during the Super Bowl. The information available describes Springsteen as demonstrating many of the behaviors that are associated with intoxication including glassy eyes, slurred speech and poor coordination. He told the park ranger that he had had two shots of tequila (apparently his favorite) over the course of twenty minutes while having his picture taken with a fan. It is reported that he refused a breathalyzer on the scene and blew a low 0.02 at the station. A defense lawyer who was interviewed for background explained that there are reasons other than intoxication for Springsteen's failure to pass the screens administered by the ranger in the park e.g. he might have been tired, he is old, he could have allergies and the tests are difficult. While there may indeed be reasons other than intoxication to account for Springsteen's presentation, the empty tequila bottle and his questionable judgment in drinking a shot in front of the ranger seem to pass the "smell" test with flying colors. The lawyer's comments also lend credence to Shakespeare's suggestion regarding barristers.
But let's examine the whole situation of DUI more closely. Driving a vehicle on the roads is a privilege not a right. We must apply for and be granted a license. In doing so, we accept conditions like obeying speed limits, stopping at red lights, etc. If we violate those conditions, we agree to accept the consequences. Most of the violations are statutory i.e civil but some like reckless driving are criminal. As I indicated in the previous blog about Britt Reid, the history of DUI and its enforcement is checkered.
With the advent of standardized laws around 1981, the consequences of DUI and their enforcement became more predictable across states and jurisdictions. One of those clarifications was a distinction between the statutory and the criminal. Because the court requires a measurable standard, the blood alcohol level (BAL) became the definable standard for determining DUI. A completely arbitrary number, .10, was established for adults and something lower, e.g. .04, for adolescents (even though the use of alcohol by that age group was prohibited). Over time, .10 BAL has largely been reduced to .08. The BAL is important because it legally defines DUI which is a criminal offense. In order to obtain the BAL, the driver has to submit to a chemical test i.e agree to a test which may be self-incriminating. As self-incrimination is a constitutional right, the person cannot be compelled to have the test. If they refuse, as in the case of a breathalyzer, the civil consequence is a combination of license suspension, fines and possible court-ordered classes, etc. Imprisonment though is off the table. The police can charge DUI without a chemical test but the burden of proof rests with them. This is apparently the case with Bruce Springsteen as the chemical test he took at the station did not establish DUI. In practice, it is the rare circumstance that DUI is actually pursued once a person refuses the chemical test. As refusal is civil and DUI is criminal, the smart money is on refusing.
Beyond the consequences of fines and license suspension, the new DUI effort became a case-finder for alcohol troubled people by ordering all convicted drivers, whether refusals or DUI, to be evaluated to determine if they were in trouble with alcohol and therefore in need of treatment. The rationale was that driving after you had been drinking could be symptomatic of alcohol trouble. In Rhode Island, we used a paper and pencil test along with a clinical interview to determine whether the offender was ordered to DUI school or counseling. The belief was that a clinical intervention could reduce recidivism , potentially save lives and injuries and be an all around good thing for society. Over the years, a significant percentage of offenders was ordered to counseling, a required action in order to regain their license to drive.
As I signaled in the previous blog, I think our societal attitude about drinking and driving is flawed, to say the least. Like cigarettes, marijuana and gambling, we happily take the tax proceeds from their use and almost completely ignore the problems associated with them. Asking a drinker after he/she has been drinking to judge their ability to safely operate a motor vehicle is almost non-sensical. Trying to determine the BAL that establishes the safe operation is similarly irrational. If we meant business, I think we would say: "If you have been drinking, then you don't drive". In the meantime, we have to listen to: "I had two or three drinks" or "I had two shots of tequila".