Althouse: "The effect of the rule below will be to grant drunk drivers 'one free swerve' before they can be legally pulled over by police."

October 21, 2009

"The effect of the rule below will be to grant drunk drivers 'one free swerve' before they can be legally pulled over by police."

"It will be difficult for an officer to explain to the family of a motorist killed by that swerve that the police had a tip that the driver of the other car was drunk, but that they were powerless to pull him over, even for a quick check."

Chief Justice John Roberts, talking tough about drunk driving, as he dissents from a denial of certiorari, in a case where the state court said it violates the Fourth Amendment to pull over a driver based solely on an anonymous tip. (The police responding to the call did not see the driver do anything wrong.)

Some state courts have said this is not a search-and-seizure violation and some have said it is. How important do you think it is that this interpretation of federal constitutional law now varies from state to state? Should the U.S. Supreme Court become involved when a state has given what might be an overly generous meaning to a constitutional right? Or can we tolerate this diversity of interpretation?

Roberts displays empathy for potential victims of drunk drivers, but what about empathy for the decent driver who might be the target of some fellow citizen who decides he wants to make trouble for you? There's that ex-boyfriend/asshole neighbor/right-wing blogger having 2 glasses of wine with dinner and then heading out to his car for a super-careful 3-mile drive home. Let's call the cops! Is the world out of whack if the state of Virginia thinks the right to be free of unreasonable searches and seizures requires a bit more than an anonymous tip?

109 comments:

traditionalguy said...: Great decision.We will all have severasl drinks to that decision at the next meeting of DAMM (Drunks Against Mad Mothers).; 10/21/09, 9:27 AM
rhhardin said...: Drunk driving is overrated as a risk.

It is and has always been very common.

It was one of the public morality power plays in the 70s and 80s.

Create a public problem and take ownership of it, is the procedure.

Before then, drunk driving was a personal moral failing, a matter for the clergyman.; 10/21/09, 9:34 AM
Chase said...: having 2 glasses of wine with dinner and then heading out to his car for a super-careful 3-mile drive home

Interesting - "super-careful".

The new "Super-Freakonomics" (that has been talked about here so much regarding it's chapter on global cooling) has a chapter where it asks this:

Which is safer after 4 glasses of wine at a friends party 1 mile from your home:

- driving the 1 mile drunk, or

- walking the 1 mile drunk.

Statistically, you are 8 times as likely to be killed walking drunk as you would be driving drunk.

They also ask why drunk driving fatal accident statistics do not decrease despite the obvious public displeasure. One reason: most drunk drivers don't get caught. Odds are that you could drive back and forth across the entire United States drunk the entire trips 2 1/2 times before being caught or stopped.

Of course, they opine, if society wanted to really prevent drunk driving, we could change federal law and mandate multiple random road checks where drunk drivers would be executed on the spot.

But we don't really care enough about ending something that causes more American innocent fatalities every year than all of the Americans killed in Iraq and Afghanistan combined.

Do we?; 10/21/09, 9:53 AM
Expat(ish) said...: In most states, including mine, there is no way to have two glasses of wine and drive legally.

-XC

PS - hereabouts the cops used to sit outside the bars and just watch people walk to their cars and collect them easily.; 10/21/09, 9:53 AM
John said...: That is very disapointing logic from Roberts. I thought he was supposed to be a smart guy. Why not apply this to every other crime? Should cops be able to stop and search you on the street based on an "annonmous tip" that you might be a danger? Should they be able to search your house based on such a tip? How do we explain to murder victims' families that the cops had an unreliable tip that this might happen and did nothing? Roberts commits a 9th grade logical fallacy here.

I am starting to come to the conclusion that no one in any position of great responsibility in government right now is very bright. I mean the whole lot of them are just a collection of idiot sons and kiss asses who have weaseled their way to the top.; 10/21/09, 9:55 AM
John said...: "But we don't really care enough about ending something that causes more American innocent fatalities every year than all of the Americans killed in Iraq and Afghanistan combined."

citation please? And further, don't try and pull the "alchohol contributed to the accident" statistics. Those are bogus. I could be .001 over the legal limit and get hit by a runaway bus while sitting at a stoplight and my death would be catagorized as caused by drunk driving. Those stats are bogus as hell. Moreover, the vast majority of real drunk driving deaths where alchohol actually caused the accident are caused by a very small group of people who are driving way over the limit. Arresting people who blow a .09 does nothing to stop the real threat.; 10/21/09, 9:59 AM
JustRuss said...: Drunk Driving needs to be dealt with, it may have been a power play but drunk drivers are wielding a 2 ton weapon that may kill people at a moments notice.

However,

The Police CANNOT be allowed to pull someone over based solely on an anonymous tip. They CAN follow that vehicle to its destination to watch for trouble if they so choose. Anyone too drunk to drive will not see the patrol car in the rear view and will speed or leave a blinker on too long or any other number of thinks.

Swerving is not the only indicator of a drunk driver. As any officer.; 10/21/09, 9:59 AM
MadisonMan said...: In most states, including mine, there is no way to have two glasses of wine and drive legally.

What if you have two glasses of wine over the course of 6 hours?; 10/21/09, 10:03 AM
Chase said...: John,

I leave the figures to you - I took the illustraions from "SuperFreakonomics". I believe that you will have a hard time parsing away the actual deaths in which alcohol was "involved".

I will be happy to back off of this one and let you have the title of

John, Defender of Drunk Driving in America

Congratulations!; 10/21/09, 10:04 AM
John said...: "Involved"? What does that mean? That is exactly what I am talking about. Those stats are bogus because they take every wreck in which either driver had any alchohol in their blood stream and say alchohol was "involved" regardless of the facts. You just proved my point.

Further, taking an objective look at the statistics and the actual scope of the problem and also of our actual Constitutional rights involved is not "defending drunk driving". It is mouth breathing torch carrying jackasses like you that prevent us from having an intelligent conversation about anything anymore. Anyone who goes agains the lynch mob is just defending drunk driving.; 10/21/09, 10:07 AM
Chase said...: In 2008, an estimated 11,773 people died in drunk driving crashes involving a driver with an illegal BAC (.08 or greater). These deaths constitute 31.6 percent of the 37,261 total traffic fatalities in 2008.

National Highway Traffic Safety Administration; 10/21/09, 10:10 AM
John said...: I will be happy to back off of this one Chase and let you have the title of fanatical moron who misuses statistics to craate more criminals and piss on the Constitution.

I hope you are proud. Dumasss.; 10/21/09, 10:10 AM
KCFleming said...: Time to ban the demon rum again.

Who will be the next Al Capone?
The next Joe Kennedy?
Molly Hatchet?

The War on Drugs has been so successful, let's do it again with booze. Again.; 10/21/09, 10:11 AM
Chase said...: John, Defender of Drunk Driving in America!; 10/21/09, 10:11 AM
John said...: Chase,

Are you retarded? Read your own damn link. It says "where a driver had .08 or more". Some of those cases people were no doubt really drunk and caused an accident. In many of them, the fact that the person was drunk may not have had anything to do with the accident. If a sober person runs a light and hits a drunk, the fact that the one driver was drunk has nothing to do with the accident. That kind of accident is included in your numbers. That makes your numbers bogus.; 10/21/09, 10:13 AM
traditionalguy said...: The DUI industry has flowered in the past 10 years. It makes money for governments. They use roadblocks "for a license and Ins. check" to catch the midnight Friday night crowd. The Judges, prosecutors , DUI schools, probation officers all are Jobs funded by fines. That's ok and helps weed out bad alcoholics driving bind drunk But the industry has expanded its reach by lowering the Presumed Intoxicate Blood Alcohol level to get money from a much larger population of harmless fools who went out to dinner.; 10/21/09, 10:13 AM
Chase said...: Pogo

who are you talking about my friend?

Who wants to ban liquor?

is not the same as

Who wants to ban drunk driving?; 10/21/09, 10:13 AM
John said...: "They use roadblocks "for a license and Ins. check" to catch the midnight Friday night crowd."

That is only "ok" if you don't think we have any right to be free from unreasonable search and the right to go about our business without being harrassed by authorities.

I don't drink and drive. But, frankly as long as I am obeying the law, the Cops have absolutely no right to stop me and ask me anything.; 10/21/09, 10:16 AM
Chase said...: Dear John, Defender of Drunk Driving in America

Those aren't MY statistics (can you read, John?). They are from the
I'll spell it phonetically for you:

Nash-uh-nul Hi-way Saef -tee Big Words

that's who it's from. Or to you - dumbasses all.

So, john, to be fair - why do you feel that people should be allowed to drive with .08 or higher bac with impunity?

Oh, and let's take something off the table in your mind. This conservative doesn't support giving the police the ability or authority to pull someone over without probable cause.

So - Why do you want people to be able to drive drunk, John?; 10/21/09, 10:20 AM
KCFleming said...: I say ban demon rum and there will be no drunk driving or walking or working.

Ban it!!

How can you defend drinking at home, since it leads to abuse and there is a car nearby and the children can see?

Safer for all to remove the evil thing entirely.; 10/21/09, 10:22 AM
John said...: Chase,

It doesn't matter if those statistcs came from Jesus himself. They don't mean what they purport to claim. That is the point.

Further, saying that your statistics are bullshit, doesn't say anything about whether drunk driving should be legal or not. It just says the stats you cite are bullshit, which they are. Yes, drunk driving should be illegal. But, that doesn't mean that .08 should constitute drunk driving (it shouldn't, the marginal benefit of lowering it from .12 was very small) or that we should tear up the Constitution to enforce the law.

Do me a favor and stop claiming to be a conservative. You are embarassing the rest of us. The Left has Jeremy and Mort. The Right doesn't need you.; 10/21/09, 10:23 AM
Joaquin said...: But, frankly as long as I am obeying the law, the Cops have absolutely no right to stop me and ask me anything.

I'm with you, John, but I'm told that driving is a privilege and not a right.; 10/21/09, 10:26 AM
Stan said...: I haven't read the case, but I would expect that officers tipped to check out a particular car would observe the car themselves for substantiation before pulling it over.

Swerving is not a crime. A tip that someone swerved cannot be probable cause.

Also, if the police feel that public safety demands that they check for sobriety without probable cause, they can do so -- knowing that any evidence will be thrown out.; 10/21/09, 10:26 AM
Anonymous said...: "There's that ex-boyfriend/asshole neighbor/right-wing blogger having 2 glasses of wine with dinner and then heading out to his car for a super-careful 3-mile drive home."

In CA that would get you a mandatory night in jail, mandatory loss of all driving privileges for a year, and a felony if you are caught driving during that year. So you have to quit your job and stop living in order to satisfy your sentence.

Is criminalizing a huge number of people the answer? Even MADD's founder says no.

Neo-prohibition; 10/21/09, 10:27 AM
Chase said...: "I don't drink and drive."

Good for you.

Why should everyone else be encouraged to?

I may be going out on a limb here - way out - but have you or someone close to you been arrested or at least what you feel is unfairly pulled over without cause?

This conservative lost a niece, a nephew, and a best friend's son to accidents caused by people with bac of .04, 1.0 and .08 respectively. Each of them were in cars hit by a drunk driver, and neither my niece, my nephew, or the son of my best friend were driving drunk or in a car with someone drunk.

Odds that they would not have been in those accidents had the drivers that hit them not been drunk?

100%; 10/21/09, 10:28 AM
Joaquin said...: Irrelevant, Chase!; 10/21/09, 10:31 AM
John said...: "This conservative lost a niece, a nephew, and a best friend's son to accidents caused by people with bac of .04, 1.0 and .08 respectively. Each of them were in cars hit by a drunk driver, and neither my niece, my nephew, or the son of my best friend were driving drunk or in a car with someone drunk."

My grandmother died recently in a drunk driving accident. Further, I spent two years as a federal prosecutor and sent people away for decades. So fuck off on the "I have moral authority" bullshit.

It is terrible when people die in auto accidents. But it is just as terrible when they fall off cliffs or die of cancer. The terrible nature of life doesn't change what the constitution says or eliminate the dangers of a police state.; 10/21/09, 10:33 AM
rhhardin said...: F.T.Grampp on MADD: "If it weren't for the drunks, a lot of them wouldn't be mothers."; 10/21/09, 10:34 AM
Chase said...: John, Defender of Drunk Driving

I am a conservative, active politivcally, and obviulsy unlike you - I care about deaths of innocents in this country and how to balance safety with freedom.

You are not a conservative. You are a libertarian, and a defender of driving drunk.

You feel that people should be allowed to drive with .08.

You claim that the National Highway Traffic Safety Adminstration makes bogus statements, but you haven't proven it.

Don't start down the road of who's more conservative with me John. No true conservative wants to back off .08 to .12.

Are you really Jeremy?; 10/21/09, 10:35 AM
Leland said...: I may be going out on a limb here - way out

May?; 10/21/09, 10:35 AM
John said...: Chase,

I am anything but a libertarian. And you have ceased to be interesting and have become performance art. So I will let others get sucked in by your trolling act. And just as a side note, the government publishes bogus statistics all of the time.; 10/21/09, 10:37 AM
Chase said...: John and Joaguin, Defenders of Drunk Driving in America

John - you are no moire a lawyer than Joaquin is not a moron.; 10/21/09, 10:38 AM
rhhardin said...: Gusfield is good on the sociology of drunk driving laws.

Also has later books.; 10/21/09, 10:39 AM
David said...: The Republic will survive having different approaches in the states to this issue. In fact the Republic will thrive because we will have empirical rather than theoretical evidence of which approach works best. Isn't that one of the benefits of federalism?; 10/21/09, 10:41 AM
Joaquin said...: It looks like you're down to your last bullet. Personal attack. PFFFT!; 10/21/09, 10:42 AM
Chase said...: John,

You are a fake.

I will also quit. This issue obviuosly brings out the emotions in people who can't understand reality and don't give a shit how many people are injured by it as long as they can keep their freedom to fuckup alive, regardless if their behavior is a danger to others.; 10/21/09, 10:42 AM
John said...: "John,

You are a fake."

No I am not. I post here all the time. I have mentioned the fact that I am a lawyer and a former military prosecutor on numerous occasions. I am about as "law and order" of a conservative as you can find. Unlike many people, I have actually walked the walk and sent people to jail. But, in doing that I learned a few things about the Constitution and government power.; 10/21/09, 10:45 AM
Chase said...: Oh and Joaquin, no personal attack on you.

You just defend what John ( did you read the names he called me) said - which makes you a defender of drunk drivers in America like John.

See?; 10/21/09, 10:45 AM
KCFleming said...: Let's just shoot suspected drunk drivers on sight.
Before they get into their cars, just to be safe.; 10/21/09, 10:47 AM
Chase said...: John,

Alright - let's play fair.

First, thank you for your service.

My father was a JAG in the mid 60's - early 70's. He was at Camp Pendleton until 1967, just before Life Magazine came in and did their expose of the brig at Camp Pendelton. He just missed that. When he retired, he was frankly sick of the law, and knows full well how the government can misconstrue evidence.

Perhaps I am not being clear on this.
I do not support any additional government intrusion regarding probable cause - I believe we have too much now, frankly.

I also do not support the example given in Suprerfreakonomics about executing road check drunk drivers. No one does.

But one doesn't leave their conservative values when they look at statistics regarding drunk driving - and giving you the benefit of the doubt let's take a fourth of the statistics and make it 3,000 deaths - and say that that kind of civic irresponsibility should not be tolerated. My solution? Move the penalties when caught to 1 year minimum suspended license, and jail time for any driving during that period. Raise the ante. Start there. I'm open to discussion.

But to not do anything while the statistics don't change is wrong. And it's not conservative.; 10/21/09, 10:58 AM
traditionalguy said...: We need Lem to comment on this right after we take away his keys.; 10/21/09, 11:01 AM
Bender R said...: This comment has been removed by the author.; 10/21/09, 11:04 AM
Bender R said...: In 2008, an estimated 11,773 people died in drunk driving crashes involving a driver with an illegal BAC (.08 or greater). These deaths constitute 31.6 percent of the 37,261 total traffic fatalities in 2008.

So, in other words, fatal crashes that did not involve alcohol constituted 68.4 percent of traffic fatalities.

If we want to worship statistics, it sounds like those who are sober are far more dangerous than those who are drinking and driving. Perhaps we need to outlaw sober driving?; 10/21/09, 11:05 AM
John said...: "Move the penalties when caught to 1 year minimum suspended license, and jail time for any driving during that period. Raise the ante. Start there. I'm open to discussion."

That would just throw a bunch of people in jail and accomplish nothing. My sollution would be a graduated scale of punishments. You like .08? Fine, make any offense between a .08 and a .12 a big fine. Make a .12 to say a .15 a misdomenor. And then do your suggestion for anything over a .15. Most traffic deaths are caused by people driving way beyond the limit. Some people are just drunks and won't stop driving no matter what you do to them. You have to concentrait on those people rather than the .09s of the world. Yes, in an ideal world no one would drink and drive. But we don't live in an ideal world. We only have so many cops and so many jails. We need to concentrait those on where it will do the most good.; 10/21/09, 11:06 AM
Anonymous said...: Chase, chill, you're missing John's point entirely.

A statistic citing accidents involving alcohol is not the same as accidents caused by alcohol, that is the point John is trying to make.

A sober driver running a read light and t-boning a drunk driver gets thrown into the involving category even though alcohol didn't cause the accident, thus the accident should not be attributed to alcohol.

John isn't debating the legality of driving while drunk, he is questioning the accuracy of the statistics, which is a valid argument if those statistics are being used to implement increasingly draconian measures to fight against drunk drivers.; 10/21/09, 11:07 AM
Chase said...: John -

Good points.; 10/21/09, 11:10 AM
Chase said...: Dogwood -

I never missed John's points.

Re your illustration on the sober driver hitting a drunk driver:

I promise to return after work with specific "drunk driver caused" statistics. That is enough to have concern over - what can society legally do to bring that number down.; 10/21/09, 11:14 AM
Chase said...: Bender -

Oh now I get it!

In order to keep our freedoms, we should accept all drunk driving caused deaths as long as they are less than sober driving caused deaths

I'm hoping we get rid of that "Shouting 'Fire' in a Theater" violation of the First Amendment as soon as possible too!

Thanks!; 10/21/09, 11:16 AM
Chase said...: Worship Statistics?
WTF?; 10/21/09, 11:19 AM
KCFleming said...: I like john's take on it; graduated punishments et al.

Now the nanny state wants to ban cell phones, eating, smoking and other activities in the car for precisely the same reasons they used with "drunk driving. Shit, there are even people that want to prosecute sleepiness.; 10/21/09, 11:20 AM
Anonymous said...: Perhaps we need to outlaw sober driving?

I would need to see a comprehensive demographic study regarding the Darwinian impact on the societal gene pool of such policy before I could fully embrace it.

I'd also need to buy a Hummer before the law went into effect.; 10/21/09, 11:23 AM
MadisonMan said...: Yes, the worst traffic crash (why do people call them accidents?) here in Madison this year involved someone driving under the influence.

Teens (younger than 16) out joyriding in a car, see a police car, fight for the wheel, lose control, hit a minivan, big crash, lots of young people die.

Minivan driver had been drinking. Add it to the statistics! Clearly this crash was called by liquor.; 10/21/09, 11:25 AM
holdfast said...: Do you know how many prosecutor and cop hours it takes to successfully prosecute a defended drunk driving charge? Neither do I, but my police friends tell me that it is a lot, and unless you actually hurt someone you can always deal down to sentence that is orders of magnitude lighter than what is promised in the scary TV ads.; 10/21/09, 11:28 AM
SarcastiCarrie said...: How about instead of outlawing drunk driving, distracted driving, sleepy driving, etc, we outlaw bad driving....you know, the kind that leads to accidents? Now, I don't know how you would define "bad" but let's say swerving, tailgating, speeding, erratic lane changing, drifting, dramatic speed changes, etc.; 10/21/09, 11:29 AM
KCFleming said...: Similar multi-death accident here. Guy goes to outdoor concert, has 2 beers over an 8 hour interval, goes home at midnight, falls asleep, hits a minivan, kills 5. Blood alcohol level below 0.8.

Drunk driving.
MADD seems to believe any alcohol in the bloodstream constitutes impairment.; 10/21/09, 11:31 AM
Anonymous said...: John,
We have had the penalties for several years in CA that you recommended. I honestly don't know if they have cut down deaths. I do know there are still periodically huge fatal crashes caused by serial drunk drivers.

This is the article from the link that I previously posted, which didn't work, with many interesting statistics.

http://www.foxnews.com/story/0,2933,171383,00.html; 10/21/09, 11:34 AM
Expat(ish) said...: @MadisonMan: What if you have two glasses of wine over the course of 6 hours?

I would thank my hostess in French. Or possibly Turkish.

But most meals in America take much less than an hour. And even a very nice place (I miss WOW) here you can have s multi-course dinner in <2 hours. Three max. The fricking French Laundry only took three hours for me.

Two drinks in an hour and you are over the limit. Me, I weigh 250, so it takes three, but still.

-XC

WB: "tosol" - slurring English drunk; 10/21/09, 11:35 AM
paul a'barge said...: what about empathy for the decent driver who might be the target of some fellow citizen who decides he wants to make trouble for you?

(1) get pulled over
(2) hand over license and registration
(3) possibly get out of the car
(4) possibly take a roadside sobriety test
(5) receive apology from officer
(6) get back in car
(7) reattach seat belt
(8) drive on
(9) knowing that all of us including yourself are more safe as a result.

What's not to like?; 10/21/09, 11:43 AM
paul a'barge said...: pull over a driver based solely on an anonymous tip

Anonymous?

B*llsh*t.

There are no anonymous tips. If you dial 911, believe me they know your phone number. And if they know your phone number they know your name.

'nuff said?; 10/21/09, 11:46 AM
Peter Hoh said...: But they can still send in a SWAT team in response to anonymous tips about drugs, right?

Just knowing that helps me sleep better at night.; 10/21/09, 11:47 AM
Bender R said...: Do you know how many prosecutor and cop hours it takes to successfully prosecute a defended drunk driving charge? Neither do I, but my police friends tell me that it is a lot

Again with the misleading "facts." What is not said here is that nearly all DWI convictions, like most criminal convictions, are the result of a guilty plea. And of those that do go to trial, only a very few have the monetary resources necessary to hire experts, etc. in order to successfully challenge the breath/blood test. The only other way to successfully defend a DWI charge is to challenge the legality of the stop and/or police procedures during the stop. Prosecuting that aspect of a case does not cost anymore than not prosecuting, and any conceivable additional cost could be avoided altogether if only the police do their job properly (which the vast majority of police do).

DWI and actually causing accidents are serious offenses. Serious enough that we should not be trying to use misleading statistics and trumped-up "facts" to fight against them. Simple truth will suffice.; 10/21/09, 11:49 AM
mariner said...: In 2008, an estimated 11,773 people died in drunk driving crashes involving ...

Many here have rightly zeroed in on "involving", but neglected the "estimated".

If the crashes actually happened why do we need to "estimate" how many were caused by drunk driving?

Isn't that pretty much an admission that we don't know, and someone is just playing games with numbers? (And of course, those government numbers are used to justify calls for ever-greater government action.); 10/21/09, 11:51 AM
Bob From Ohio said...: "This conservative lost a niece, a nephew, and a best friend's son to accidents caused by people with bac of .04, 1.0 and .08 respectively. Each of them were in cars hit by a drunk driver, and neither my niece, my nephew, or the son of my best friend were driving drunk or in a car with someone drunk.

Odds that they would not have been in those accidents had the drivers that hit them not been drunk?

100%"

.04 is not a crime anywhere in the US. No one in their right mind would consider a .04 "drunk". MADD does but sometimes names tell a story.

.04 is one beer. Do you want to ban all driving after one drink? I guess that is a position but then get the law passed to do so.

Highly doubtful that one drink made it 100% likely that the accident occurred. Probably not even 50% likely.

The other two are not a whole lot stonger cases. They are legally drunk but just reciting that does not mean that the alcohol in fact caused the accident. Per se viloations are a cousin of zero tolerance policies. Substitution of rules for thought. Again, it might be that the accidents were likely to occur at those levels but not 100% certain.

100 miles an hour when sober is more dangerous than .04 or .08. Same with 6 teenagers in a car.

Just because drunk driving is a problem that needs attention does not mean throw the whole Constitution out the window.; 10/21/09, 11:52 AM
Hector Owen said...: What Bender said about getting the sober drivers off the road reminds me of Hans Monderman's ideas about "psychological traffic calming." That is, if you make it more obvious to drivers and pedestrians that traffic is risky, they will be more careful. (Whether they have been drinking or not.)

As for the "one free swerve," we have come to a pretty pass when anonymous tips are considered probable cause.; 10/21/09, 11:53 AM
Alex said...: If you're not drunk, what do you have to hide? I trust the police, and so should you.; 10/21/09, 12:07 PM
Bruce Hayden said...: In 2008, an estimated 11,773 people died in drunk driving crashes involving a driver with an illegal BAC (.08 or greater). These deaths constitute 31.6 percent of the 37,261 total traffic fatalities in 2008.

Fine, and probably 11,772 of those died in drunk driving crashes with a driver with a BAC above .10, and maybe 11,750 with a BAC above .12.

My point is that it is routinely assumed, esp. by MADD, that the function of BAC and fatalities is linear. This is, of course, absurd. We all know that the guy who can't walk to his car, but gets behind the wheel is far, far, far more dangerous than the guy with two beers in him. Yet, the MADD inspired reduction from .10 to .08 nationally was predicated on just that fallacy.

Oh, and a lot of those crashes designated as "drunk driving" are just accidents. In short, correlation without as much causation as they would let us believe. If 1/3 of the people were drunk (i.e. BAC >= .08) at any time behind the wheel, then 1/3 of all accidents would involve such drunk drivers. (Yes, I know that at high BAC levels, accidents increase significantly, but the assumption that BAC > 0 = dangerous appears to be fallacious).; 10/21/09, 12:13 PM
Bart DePalma said...: I thought a unanimous Supreme Court decided in Florida v. J.L., 529 U.S. 266 (2000) that an anonymous tip uncorroborated by observations of a police officer cannot satisfy the reasonable suspicion standard for a legal Terry Stop.; 10/21/09, 12:20 PM
Bruce Hayden said...: If you're not drunk, what do you have to hide? I trust the police, and so should you.

Why? Police are human too, and many of them have their own issues, that may, and arguably often do, involve biased arresting.

I have faced this throughout life, even as I near the age where I could get Medicare. Maybe six years ago, I was driving back to Dillon, CO from a late night in Vail. It was about 4 a.m., and I was the only car on the road. I got off the freeway, pulled to the left lane, and then into the left turn only lane. I turned left on the turn light, and got popped. The excuse was that I failed to signal that left hand turn (at 4 in the morning, the only car on the road, and in a left turn only lane). The stop was seriously pretextual. He was bored, I was out after the bars were closed, and was the only one available.

He asked me to do a roadside sobriety test (since he obviously didn't have PC for an arrest). I refused, asked if I could continue. He said no, threatened to arrest me if I didn't, and I refused, again. So, he stated a BS "based on my experience and training, I have reasonable belief that you are drunk", or something like that. So, he hauled me 5 miles down the road to Silverthorne, and gave me a breath test. I scored .02 or thereabouts, about 1/4 the legal limit. So much for his experience and training. And, of course, he refused to drive me back to my car, and so I had to walk home about 2 miles at around 30 degrees, and then get my car the next day.

And you ask why I still don't trust cops?; 10/21/09, 12:24 PM
Chase said...: WOW!

I am really doing a poor job of stating that I believe that we don't do enough to discourage driving under the influence in this country.

It seems that MADD is some liberal/left group that I haven't learned to hate yet as a conservative. I know almost next to nothing about MADD except that they are obviously wrong to all conservatives, a threat to the freedom to drive at least a little intoxicated - woo-hoo!

Bruce Hayden - there is no commenter that I respect morehere in 5 years on Althouse than you. What are trying to say?

I guess the conservative way for me the next time someone I really care about is killed in a traffic accident caused by - not just involved in, but caused by - a drunk driver will be to dispense justice on them and their family with my Winchester 70 and leave my NRA card as a calling card.

Happy?; 10/21/09, 12:27 PM
El Presidente said...: What the F^#% does empathy have to do with interpretations of the 4th Amendment?; 10/21/09, 12:39 PM
El Presidente said...: John,

The "alchohol contributed to the accident" statistics are worse than you realize. You could be .001 (not over the legal limit but just enough to register on the blood test) get hit by a runaway bus and you would be one of those statistics.; 10/21/09, 12:42 PM
Chase said...: In other news:

Another ACORN sting video is released today showing that the Police report filed by the Philadelphia ACORN office was false.

"Now that ACORN lied to you, Media Matters, what are you going to do?; 10/21/09, 12:43 PM
Methadras said...: Considering the social message that invades the eyeballs of the unwashed masses about drinking and driving on a near perpetual basis, you would think that people should, by now, understand the dangers involved of being DUI'ed, but no, they still do it and increase and pass on the risks to everyone else they come in contact with while in their state of inebriation.; 10/21/09, 12:47 PM
MadisonMan said...: Is this a real pull-over?; 10/21/09, 12:48 PM
Anonymous said...: I am really doing a poor job of stating that I believe that we don't do enough to discourage driving under the influence in this country.

Accusing other commenters of defending drunk drivers when they are doing no such thing usually is a poor way to make your case.

Just saying.; 10/21/09, 12:49 PM
chickelit said...: True story:

Last Sunday I had one beer and then drove my son to the shooting range. I shot better than I have in a long time.; 10/21/09, 12:51 PM
save_the_rustbelt said...: I was pulled over one night on a tip after making the mistake of swerving around a cat (next time the cat gets no consideration).

I have also been pulled over three times on I-75 by the drug interdiction patrol (apparently my thick dark hair and rugged good looks can be mistaken for Hispanic** through binoculars at 70 miles per hour).

No big deal.

** The Ohio State Highway Patrol denies profiling Hispanics, but if your name is Gonzalez and you drive a van load of dope through Ohio at high speed you have a good chance of being pulled over.; 10/21/09, 12:55 PM
exhelodrvr1 said...: Two glasses of wine with dinner would not put you over the limit, but would still (potentially) result in stiffer penalties even if it was not a factor in the violation for which you were stopped.; 10/21/09, 12:58 PM
Anonymous said...: ...you would think that people should, by now, understand the dangers involved of being DUI'ed, but no, they still do it...

Not all that unusual. Smokers know the dangers but they continue to smoke.

You are assuming everyone will act rationally given the same information. Not so. Some people will take the risks anyway believing they are better than average at functioning after a couple drinks.

The extremely inebriated, and alcoholics, are beyond rational thought, so the danger or risk isn't even a factor in their decision making process.

Humans are fallible creatures, always have been, always will be. Any effort to eradicate 100% of all deaths from drunk driving will fail, but such efforts if pursued will have profound negative impacts on our personal freedoms.

As in most things, it is about finding the proper balance between security and personal freedom.; 10/21/09, 12:58 PM
Dust Bunny Queen said...: We have had the penalties for several years in CA that you recommended. I honestly don't know if they have cut down deaths. I do know there are still periodically huge fatal crashes caused by serial drunk drivers

There is always going to be a segement of society that will chronically drive drunk....very drunk. All the laws in the world aren't going to stop them from creating a hazard to others and to themselves. They are sick and can't be stopped with a law.

What HAS happened in California especially in the suburban and rural areas, is that restaurants, lodges and other establishments that served liquor along with meals have lost business or gone out of business. People who have no other choice BUT to drive to and from the establishment will either not go out if they can't enjoy a glass of wine with dinner or will cut back on their dining out.

The a result? The low alcholol limits in California have not done that much to remove the seriously drunk drivers from the road, but have removed the retired couple who wanted to go out for an anniversary dinner, or mom and pop who would have enjoyed an early evening at the lodge.

Businesses have lost patronage and some have gone entirely out of business.; 10/21/09, 12:58 PM
Paddy O said...: One of the most interesting studies on drunk driving and text messaging while driving I've seen in a while, done by our local PBS station.

WV: defying.; 10/21/09, 12:59 PM
Hector Owen said...: This man didn't get a free swerve. He didn't even put the key in the ignition. Still got the DUI. How to get a DUI without driving at all.; 10/21/09, 1:09 PM
miller said...: What are the standards for a police officer for pulling over a driver?

Is "swerving" something that can be used as a reason?; 10/21/09, 1:49 PM
Alex said...: You have no reason to swerve unless a deer just stepped into the road. Otherwise a police officer has probably cause that you're flaming drunk. I can bet a lot of you have been DUI before. Get off the road before you kill someone!

SPEEDERS AND DRUNK DRIVERS ARE MURDERERS!!!!; 10/21/09, 1:54 PM
I'm Full of Soup said...: The nannies don't get it. There are 300 million people in this country. Stuff happens. Shit happens. Or as Mark Levin says "Clinton happens".

Drunks are gonna cause some tragic deaths. Just like texting does or just plain dumb lousy drivers.

They can enact more and more laws but they will never protect every single person.; 10/21/09, 2:09 PM
NotWhoIUsedtoBe said...: Every civil liberty has a human cost. Every single one.

We should not let our liberties be frittered away by one good-intentioned law after another. Anywhere we draw a line is going to be problematic, but the line has to be drawn.

Anonymous tips should not be the basis for an arrest.; 10/21/09, 2:20 PM
NotWhoIUsedtoBe said...: And don't swerve for deer. Just hit the damn things. People die more often from swerving than splattering them.; 10/21/09, 2:41 PM
Alex said...: Hit the damn deer? Easier said then done. What if that antler goes through the windshield and through my head? No thanks!; 10/21/09, 2:52 PM
holdfast said...: Pogo - I think my post was more in the nature of an anecdote than "facts" - and the point was that the cops et al talk a pretty tough game, but as long as you don't actually hurt someone while under the influence, you can usually get away with a fine and/or a short roadside suspension. Please tell me why I am wrong to say that.; 10/21/09, 2:53 PM
A.W. said...: First, there is a certain unreality to this thread. If the cops want to pull you over, they will find an excuse. In Virginia a favorite is for obstructed windshields. If you have anything at all in the way—a small dangling cross, a gps device, you name it—they can pull you over for that. Allegedly they use that a lot to pull over minorities in profiling situations, which I am not cool with. You have to assume that a lot of cops will use the same tactics to pull over suspected drunks.

Chase

> Statistically, you are 8 times as likely to be killed walking drunk as you would be driving drunk.

Sounds superfreaking stupid. How likely are you to kill someone else when walking drunk? If the only person you are killing is yourself, I say it’s the price of your life choices. Give that man a darwin award. I worry more about killing others.

And by the way, I bet you are 100% less likely to get in a wreck if rather than driving drunk or walking drunk, you call an f---ing cab.

> But we don't really care enough about ending something that causes more American innocent fatalities every year than all of the Americans killed in Iraq and Afghanistan combined.

We don’t care enough to have summary executions. Yeah, we don’t. You are superfreakingcrazy.

John

> and my death would be catagorized as caused by drunk driving.

Really? And you know this how exactly?

Most lawyers understand that even if an act is negligence per se you still have to prove causation. The classic case of the person who was speeding when a branch fell on top of their car is illustrative. The speed was found to have contributed in no actual way to the crash, therefore although the driver was driving negligently, that negligence had nothing to do with the crash and was thus irrelevant.

So why do you assume no one else recognizes that distinction?; 10/21/09, 3:03 PM
chickelit said...: And don't swerve for deer. Just hit the damn things.

Get yer buck with a Buick.; 10/21/09, 3:05 PM
Roger J. said...: This story is tangentially related to the drunk driving/tip thread. In the Bahamas (Marsh Harbour, Abaco) friends of mine had too much to drink and were speeding. The Bahamian police pulled them over and asked if they had been drinking--they fessed up--the officer told them sternly: When you drink, don't drive fast! Slow down! and let them proceed.; 10/21/09, 3:16 PM
bagoh20 said...: It should not be automatically accepted that the alcohol caused an accident unless a jury can be convinced of it. The accident could be caused by a cell phone, stupidity, bad driving skills, traffic violation, a distraction, road conditions, a lot things. It's just willful blindness to assume alcohol caused any accident. It may be difficult to prove or easy, but it should have to be proven.

I don't drink myself, but I also don't think I should be of the hook for running a red light while texting just because the guy I ran into had 2 glasses of wine.

It's not about defending drunk driving - it defending justice and adherence to the truth over blind assumption.; 10/21/09, 3:42 PM
holdfast said...: "And don't swerve for deer. Just hit the damn things."

Do NOT try that with a moose unless you are driving an armoured combat vehicle.; 10/21/09, 4:05 PM
jeff said...: Might as well add me to the list of PEOPLE WHO SUPPORT DRUNK DRIVERS.
If you go thru the statistics quoted and remove the people who had a drink but did NOT cause the accident, then break out the number of accidents caused by .08-.10, .11-.15, .15-.18 and so on you will see the vast majority are caused by the people with the highest level. You have diminishing returns the lower you set the DUI line. However, if you think that just pulling people over because someone thought the swerved, why stop at that? Go all out and mandate a device in the car that keeps the car from starting unless the driver passes the bat. Or mandate checkpoints 24/7 everywhere. Let the MADD staff them and they can get their own armbands and the right to demand your papers and where you have been and where you are going as well as forcing you to submit to a bat just in case. What's the harm in that? The question isn't where is the line, the question is where is YOUR line. My line is to still require probable cause. This of course MUST mean I support the guy blowing a .28 running 70 mph thru the school zone. What other conclusion can a reasonable person reach?; 10/21/09, 4:12 PM
LoafingOaf said...: JustRuss said...
Drunk Driving needs to be dealt with, it may have been a power play but drunk drivers are wielding a 2 ton weapon that may kill people at a moments notice.

Then why don't they concentrate on the truly drunk and dangerous drivers, rather than sitting outside of restaurants looking to bust people for a mere .08 BAC? They're looking to fill quotas and make money for the city. And Lord knows the deranged American criminal justice system is eager to suck as many people as possible into it.

Anyway, there's all kinds of conditions and distractions going on with a huge percentage of drivers on the road that are as bad or worse than a couple beers. For example, many Americans don't get enough sleep and a huge percentage of crashes are caused by sleep deprivation.

The person tail-gating everyone on his way to work after only 2 hours of sleep, trying to be a real go-getter, is a bigger menace on the road than many of the people who get busted for being legally drunk but not actually drunk.

However, The Police CANNOT be allowed to pull someone over based solely on an anonymous tip.

The post says that in some states they are allowed to pull someone over based solely on an anonymous tip, which I agree is not right.

However, in practice, it often won't make any difference. Many cops will simply lie and invent another reason they pulled the car over. This cop thought he had enough with the anonymous tip; had he known he needed more he probably would've made something up. Unless you think he'd go to the trouble of tracking down your car and tailing it and then not pull you over.

I was pulled over once on the pretext that my license plate had rust on it. There was the smallest speck of rust that in no way made it more difficult to read. I wasn't drunk or doing anything wrong, so there was no ticket or anything. But it showed me how easily they can find some pretext if they want to check you out.

They CAN follow that vehicle to its destination to watch for trouble if they so choose. Anyone too drunk to drive will not see the patrol car in the rear view and will speed or leave a blinker on too long or any other number of thinks.

Someone too drunk to drive, perhaps, but they also wanna pull over and arrest people who would not have been considered drunk some years back. To catch more of the people who are legally drunk but not truly drunk, it helps to weaken the Fourth Amendment, because not all of them will have a burnt out headlight or something like that that makes it easy. And we need to arrest more and more people in America! There just aren't enough Americans in jail!!!!!; 10/21/09, 5:21 PM
LoafingOaf said...: Go all out and mandate a device in the car that keeps the car from starting unless the driver passes the bat.

But with that device people can just get a friend to blow into it. So, they're now coming out with sweat-sensing steering wheels to detect alcohol and automatically shut down your car.; 10/21/09, 5:27 PM
LoafingOaf said...: Aaron said...
First, there is a certain unreality to this thread. If the cops want to pull you over, they will find an excuse.

Exactly!; 10/21/09, 5:39 PM
LoafingOaf said...: Alex said...
You have no reason to swerve unless a deer just stepped into the road. Otherwise a police officer has probably cause that you're flaming drunk.

That's not true. If you live in a crumbling city like Cleveland (my city), you'll find roads in terrible disrepair, with potholes everywhere. If you don't swerve a little, you'll damage your car!; 10/21/09, 5:46 PM
Michael McNeil said...: And don't swerve for deer. Just hit the damn things. People die more often from swerving than splattering them.

Deer Accident Statistics: “According to the National Highway Traffic Safety Administration there are about 1.5 million car accidents with deer each year that result in $1 billion in vehicle damage, about 150 human fatalities, and over 10,000 personal injuries. The actual numbers are probably higher because the National Highway Traffic Safety Administration's figures for deer accidents, rely on inconsistent state reporting— there is no standard reporting of deer accidents in the country yet, and a ‘reportable deer accident’ varies significantly between states.”

Deer kill far — many times — more people every year in this country than mountain lions, bears, sharks, or any other animal threat whose mere presence leads people (including, as we've seen, among readers of this blog) to quail in terror at the mere thought of being in the general vicinity of.

As far as not swerving is concerned, perhaps if an accident is actually unavoidable it's best (as the page at that link suggests) not to swerve, but what if the accident is avoidable? Sometimes one needs to swerve, and to be practiced and able to swerve — because what if it's a baby and not a deer?; 10/21/09, 5:48 PM
Dust Bunny Queen said...: So, they're now coming out with sweat-sensing steering wheels to detect alcohol and automatically shut down your car.

Oh great!! So when I get into my car after going to the grocery store my car won't start because I use an alcohol based hand sanitizer??

I might as well just drink then.; 10/21/09, 5:53 PM
Anonymous said...: 1. "A statistic citing accidents involving alcohol is not the same as accidents caused by alcohol, that is the point John is trying to make."

True, plus the statistics don't distinguish between deaths of the dui driver and the deaths of other parties caused by the dui driver (other drivers, passengers, or pedestrians). The death of a dui driver is regrettable, but as far as I'm concerned it's just Darwin at work. The death of innocent parties is a tragedy worth preventing.

2. "Oh, and a lot of those crashes designated as 'drunk driving' are just accidents. In short, correlation without as much causation."

Also true. If 2/3rds of all fatalities are attributable to accidents in which NO alcohol is involved, isn't it possible that as many as 2/3rds of the fatalities involving dui drivers are also accidents in which alcohol itself played no role? If taken at face value, the number of fatalities that are DIRECTLY attributable to excessive alcohol usage could be more like 10% of all fatalities (i.e., one-third of one-third or one-ninth of all fatalities). This should not be taken as an exact number, of course, but rather, as John has argued, one should be careful not to misinterpret or overinterpret the NHTSA figures as to the causes of the fatalities.; 10/21/09, 5:54 PM
LoafingOaf said...: There are no anonymous tips. If you dial 911, believe me they know your phone number. And if they know your phone number they know your name.

Not if you call from a minute phone.; 10/21/09, 5:56 PM
Michael McNeil said...: First, there is a certain unreality to this thread. If the cops want to pull you over, they will find an excuse.

From what I've read, courts have upheld the existence of probable cause for suspicious stopping of people who are driving a) slightly or somewhat above the speed limit, b) just at the speed limit, and c) slightly or somewhat below the speed limit.; 10/21/09, 6:11 PM
traditionalguy said...: Holdfast...You talk of sentencing deals cut in days gone by. Since then the MADD mothers became a self righteous political force and changed that causing the legislature and the Judges, who face re-elections, to sentence everyone harshly. The system now uses this as a cover to require a short jail time,and to collect money from high fines,and to fund probation supervisor fees, and to add 80 hours of community service, all on the first offense within the past 5 years. The second offense within 5 years is a disaster we wont discuss. The mexican labor force also runs from police stops for their special reasons.; 10/21/09, 6:42 PM
Methadras said...: Seriously, instead of cracking down on people that aren't even remotely suspected of drunk driving, there instead should be a crack down on Asian female drivers, specifically, Chinese, Filipino, and Japanese women. These are the worst and most dangerous drivers on earth. Period. You take a group of peoples that have only known 2 wheeled human powered bicycles and then put them in nearly 2 tons of a 4 wheeled motorized vehicle and you have an absolute disaster on your hands at how horrible they are when driving. That's where the crack down should be.; 10/21/09, 9:23 PM
NotWhoIUsedtoBe said...: Swerve to avoid people, just not deer. It's worth it to risk your neck inside a vehicle weighing thousands of pounds to avoid hitting a pedestrian.

Also, to avoid a head on collision it's usually preferable to go off the road at highway speeds. You probably won't survive a head on.

For an animal, though, that's just too bad for them. Far too many people will risk their lives, and those of other people, for an animal. Not worth it.

It's always a judgment call, but you usually don't have much time to think about it. It's good to decide before hand what to do when an animal is in the road.

All these problems are mitigated by lower speeds. At night in deer country it's best to slow down.; 10/21/09, 10:03 PM
NotWhoIUsedtoBe said...: Oh, and the drunk deer are the worst. Passed on in the road, damn them.; 10/21/09, 10:03 PM
Kev said...: Most lawyers understand that even if an act is negligence per se you still have to prove causation. The classic case of the person who was speeding when a branch fell on top of their car is illustrative. The speed was found to have contributed in no actual way to the crash, therefore although the driver was driving negligently, that negligence had nothing to do with the crash and was thus irrelevant

Actually, in that case, speed could have been a factor, right? If the guy hadn't been going so fast, he might not have been in the path of the falling branch. (I'm surprised nobody tried that angle n court.); 10/21/09, 10:26 PM