One of the more curious things about the Texas concealed carry law is there is no blood alcohol ceiling.. if the officer judges you are impaired you have a problem.

Not that I'm endorsing drinking and carrying firearms. That's bad. Very bad.

DUIs are charged in two counts. One, being that you are at or above the legal limit, and two, you are under the influence of etoh/drugs and cannot safely drive, etc.

Regardless, others have tried and failed at this argument before.

Even Candy Lightner said that .08 was too low, and she founded MADD, going any lower than that seems a little ridiculous. She thinks, and I agree that they need to concentrate on those above .15, they are the ones that are killing people. I don't know if any states use a graduated scale to set punishment on but I think they should. We use it for drug possesion charges, theft charges, we even have degrees of murder. I think the fines and probation or jail time should automatically double over .12 and double again over .15. It doesn't seem fair of effective for someone committing the crime to a greater degree to get the exact same charge as someone that was borderline.

Someone can be at .08, seem perfectly straight, but reaction testing has shown their reaction times are indeed degraded. I know a few guys who can slam down a 12-pack and still seem straight.

Does this mean anything though? I dunno - there's a lot of scary people driving whose skills are in the .35 BAC range who never took a drink...

Basically, you have to assume everyone on the road is trying to kill you and be very paranoid about the other guy. I'll frequently just pull off and let some dodgy looking character go on by. If they're in front of me I can keep better track of what they're doing.

Field sobriety tests and Breathalyzers have been shown to be innacurate in many cases. I tended bar for eight years in Fairfax Co. After cleaning the bar, and the exertions of the night, I would head home at 4 or 5 a.m. This led to getting pulled over on a number of occasions. Probably enough residual booze on my shirt to set off the device. Last year VA passed legislation that had a mandatory suspension of license for anyone refusing a Breathalyzer. One year. That is a presumption of guilt. The presumption is more apparent in the field tests. If one smells of booze, one fails. These are subjective tests, usually witnessed by only one officer, although two are present. The other is going through the car looking for anything remotely incriminating. DUI's and DWI's generate a lot of revenue. And seizures. I do not believe that impaired people should be driving, be they drunk, old, on drugs, on cell phones or just stupid. Get the ones who are swerving, but don't abuse the system that is in place due not only to public interest, but also to special interest groups. .08 to anybody who's been to college is ridiculously low.

I was very surprised by this decision. The law has a long legal tradition of recognizing that laws can have a disparate impact on individuals, and that the Constitution is not violated by that. There are very narrow exceptions to the disparate impact doctrine. To be unconstitutional the law has to fall on a specific group of individuals with a history of discrimination. A good example were the old South's literacy tests which appeared non-descriminatory on their face but of course fell disproportionately on blacks.

I was unaware that people with a higher than average tolerance for alcohol were victims of discrimination or a politically unempowered group, but I guess the standards have been lowered.

Yeah, that last bit was tongue in cheek.

We've got our own DUI crisis here in Oklahoma. The machine they used for calibrating the breathalyzers was the wrong one. Apparently they've been calibrating them wrong for years, affecting hundreds or even thousands of cases.

Yes, there's lawsuits involved.

Someone can be at .08, seem perfectly straight, but reaction testing has shown their reaction times are indeed degraded.

Like many other things, the "objective" (non-biased) measure is may be indisputable, but that don't make it fair.

Dear Brock,
" The law has a long legal tradition of recognizing that laws can have a disparate impact on individuals, and that the Constitution is not violated by that. There are very narrow exceptions to the disparate impact doctrine. To be unconstitutional the law has to fall on a specific group of individuals with a history of discrimination. A good example were the old South's literacy tests which appeared non-descriminatory on their face but of course fell disproportionately on blacks."

How 'bout the Irish? Rastafarians can smoke up freely, certain Southwestern Native Americans can trip balls, anyone from Seattle can caffiene load to the point where they crap themselves, old folks can continue to Alzheimer down the road. If you call alcoholism a disease, alcoholics are covered by the Americans With Disabilities Act. The problem with the literacy tests was that they were inherently unfair. Chinese newspapers and such. The people in power set an arbitrary and easily faked standard. How does this differ?

A reaction time test for DL applicants would be fine with me. I've taken one at a county fair where the state police had a test setup and tested a lot faster than average ;->

It would draw a LOT of static from the AARP though... If you can't react fast enough to drive your car through a wall or into a swimming pool, you're gonna be hard pressed to pass any reasonable test ;->

Could be a tricky thing. There is now a large number of avid video game players who have to be fairly hammered before they come up short in the reaction times presumed necessary for safe driver. This doesn't mean their ability to make correct decisions isn't seriously impaired, though.

Just because they can still win a race in 'Wipeout' is not an indicator they should be on the road for real.

Anything suggested here has been tried before and has ultimately and justifiably failed in the courts.

Then let's start having reaction times measured when you re-apply for a license... I'll bet this would save more lives and serious injuries than taking driving privileges away from anyone caught with a BAL between .08 and .10 (heck maybe even up to .15!)
It's already being done. You could blow below an 0.08 and still be charged with dui if there is evidence that you are impaired. That is why people are charged with two counts, i.e., count one, blew an 0.08 or greater, and count two, driving while impaired by drugs or alcohol.

And people think they may not be impaired, but they are. I've seen study after study including live ones.

The Breathalyzer is PRESUMED to be in working condition and calibrated and the police officer operating the machine is PRESUMED to be trained, certified and competent.

It is also PRESUMED that the ratio of alcohol on the breath to alcohol in the blood is the same for everyone.

Burden of proof to the contrary is on the defendent.

It is also law in Fairfax County that, upon arrest for DUI, you spend a mandatory 7 days in lock-up.

Just after I got home from Desert Storm, I was pulled over by FCPD for running through a 'do not enter' sign (which is no longer at that location). I was fully expecting to be arrested for DUI, because, well, they really should have.

One of the officers was running me through the field sobriety test, demonstrating each task as he instructed, then observing me as I completed each task. Rather well, I might add.

When he asked me to recite the alphabet backwards, I almost started, but then asked for a demonstration. He did not and the test was over.

They let me go with tickets for 'failure to obey a traffic sign" and for having a radar detector (illegal in VA, which they confiscated) and a warning to "go directly home."

Everytime the subject of DUI testing comes up I cannot help but think of Steve Martin doing the required juggling during his field testing in 'Man with Two Brains'. Classic.

It is also law in Fairfax County that, upon arrest for DUI, you spend a mandatory 7 days in lock-up.
I sincerely doubt it.

I sincerely doubt it.

Well, I'll let my friend know that he just spent 7 days in DUI lockup for nothing because YOU DOUBT IT.

You're a freakin' moron.

Sincerely.

.08?!?!?!?

Zounds! We can hit .08 here in DC just by wandering through Ted Kennedy's fumes!

"pinky" notes that VA recently passed a law that refusing testing is to be treated as an admission of guilt. Similar laws exist elsewhere (Taxachusetts). Somehow, it has passed repeated scrutiny under the 5th Amendment as not being required to offer evidence against yourself...

Going through a DUI right now in CO. Mandatory 10 days in jail (or 30 days house arrest), fines out the ass and insurance increases. When all is said and done it's gonna cost me about $12000. Multiply that by 33,000 DUI arrests in CO each year and you are talking big business. Oh, and we also have the admission of guilt thing where if you refuse to be tested you automatically lose your liscense for a year.

PS if you do get pulled over for a 2nd DUI don't take any of the tests. You will lose your liscense but they will have no proof to subjuect you to any of the other fines, insurance costs, or jail time.

No, Rob, you're the moron.

You can not keep people in custody that length of time merely due to an arrest. They have the right to O.R. or bail, and must be arraigned within 72 hours if in custody. If you're friend was in custody for that length of time, it was due to being unable to post bond (highly unlikely) or because he had warrants out for him from other cases.

PS if you do get pulled over for a 2nd DUI don't take any of the tests. You will lose your liscense but they will have no proof to subjuect you to any of the other fines, insurance costs, or jail time.

No, Brass, not only can you still be convicted, a refusal will subject you to additional fines and jail time in most states when you are convicted. Also, a refusal is an automatic license suspension, whether or not you beat the case. Same for insurance. They will most likely cut you lose and the insurance coverage you do find will be sky high.

Zounds! We can hit .08 here in DC just by wandering through Ted Kennedy's fumes!

I bet there is a hands off policy on him. It's a shame he gets away with it.

AT,

I have done some more research and you are absolutely correct. In that research I also came across this little gem that makes the arguement that the 4th, 5th, and 6th Amendments are all being violated by current DUI law.

http://www.drunkdrivingdefense.com/general/lawrence-taylor.htm

Don't forget by being forced to submit to a breathalyzer the suspect is being forced to present evidence against himself- violating the 5th amendment. The Cindy Leehan's of temperance (known as MADD) are targeting social drinkers and should read the Constitution.

Brass: I have tried close to a hundred dui cases both as a pd and a da. I have filed well over a 1000 complaints. If I ever see another dui case again, I will puke. And I have heard Taylor lecture several times, read his book(s), etc. Don't count on objections on those grounds going anywhere. Attys make objections to preserve issues, sometimes, no matter how frivilous the issues are. Some attys make a lot of money pursuing these frivilous issues.

Good luck with your case and sin no more.

I hate to say it Ace, but you're wrong. The very act of drinking and driving DOES NOT in itself constitute a crime. Virtually the only crime that a drinking driver can do is injure someone in an accident. It is the presumption that one will have that injury accident if they have been drinking that has created the law. In the common law system that is the basis for our legal system, presumption is not valid. The wonder is that the drinking while driving laws have not been challenged before. By the way, the reasoning here also applies to speeding , set belt and helmet laws which are all based on the presumption that something bad will happen if you do not abide.

No, ace is absolutely correct. He is only wrong in that what he suggests is already in place. Under most state DUI laws it is no longer necessary to prove that a defendant was in fact under the influence, but only that at the time he was driving his blood alcohol was 0.08 or above. That is the criminal act -- driving while 0.08, not driving while impaired.

There is an alternative count charged with driving with 0.08 or above which does make it criminal to drive while under the influence. This is for those folks who refuse to give a test.

I don't know the language of the Virginia DUI law and I'm not so interested as to look it up. But, the WaPo story says that the court held that a BA level of an 0.08, without more, is insufficient evidence of impairment. All this means is that the state has to introduce evidence that the driver failed the fsts, had other objective signs and symptoms of impairment - such as nystagmus, driving pattern indicative of some one impaired, etc.

Since the officer makes a number of observations of impairment before the defendant is even required to give a BA, this judge's holding doesn't seem to make a whole lot of difference anyway.

And statutory law always supercedes common law. DUI laws are challenged ad nauseam. Nothing suggested here hasn't been tried, and failed, before.

And the reasoning I gave applies to speeding, seatbelt, and helmet laws, too.

You scofflaws crack me up!

To the anonymous attorney: Do you really believe that all, ALL, officers make correct decisions. Are they not as frangible as mere civilians? You might trot out the "trained observer" humbug that TV shows have led you to believe, but a physicist is a "trained observer" as well. Considering the statiscal amount of crooked cops and (secondhand, I admit) scuttlebut, do you not feel or think that ...some...cops...might...lie? On the stand? How about vendettas. I have seen, with my own eyes, a guy get pulled over for no reason other than he pissed off one cop who was on the outs with that (guy the first)'s sister. Hell, we used to have a cop in town who would start drag races so he could bust the kids who took him up on them. This is a matter of revenue and advancement for the individual police officer. I would welcome a reaction based test. I live in McLean ferjeebussake. Not a day goes by without some ancient, antediluvian citizen trying to run me off the road or crash into my carport. Driving While Old kills more people than Driving while "near" .08%. But we call these "foo crashes" on something like "Maybe there was a bee in the car" or similar.

P.S. I have seen officers lie in court, and even on cross they would continue the lie, when it had been disproven. There are some, not all...not by any measure all, who will lie to advance their particular agenda.

To pinky: Do you always CONFUSE the issues? Was not the discussion on the constitutionality of DUI laws? And, I didn't get my law degree/pass the bar by watching television, thank you.

To the anonymous attorney who knows all but is afraid to identify himself, since when are judges omnipotent? Just because they say that some law is valid today doesn't mean that it won't be overturned tomorrow. Besides, at the local level where all DWI and other traffic offenses are tried, judges and attornies (apparently like you) either are not knowledgable about constitional issues and/or will not permit them as evidence in the trial. I have personally had lawyers and judges tell me that constitutional issues should be deferred to appeals. Tell me how many can afford the time and money to appeal any traffic case? How well do you know common law which is the basis of our constitutional law? If you know anything you would know that in order to have a crime there must be a victim and a perpetrator who must be different individuals. Tell me in any traffic offense (DWI, seat-belt, speeding, etc.) who is the victim? Of course, there is NO victim, that's why these statutes are called victimless crimes. It's from this principle that these laws should be declared unconstituional.

Docdata, were you drinking when you wrote your post?

"is the presumption that one will have that injury accident if they have been drinking that has created the law. In the common law system that is the basis for our legal system, presumption is not valid."

Untrue. Any regulation of, say, tree limbs hanging out to an unsafe degree, etc., is based on the presumption that it poses a danger.

Yeah, I'm drunk and delirous. Surely all you great minds have heard of victimless crime. Just what does victimless mean to you??

Nothing. It means nothing. It is but a red herring you and others have invented. The law does not require a victim.