DUII laws ignore impaired driving in favor of irrelevant, arbitrary tests. by Dan Clore
(libertarian)
Thursday, January 12, 2012
(This column originated as a response to a story in the Portland Oregonian. It was submitted to the Oregonian's commentary section, which publishes one unpaid column by a reader each day, but they did not respond to it. The original version was shorter, in order to fit in the Oregonian's word limits. The facts regarding DUII laws may vary by location, but the general principles should apply anywhere.)
The Portland Oregonian's December 31, 2011 front-page story on Oregon DUII laws describes those laws incorrectly. It several times refers to the offense as if it were illegal to drive while impaired due to alcohol or other drugs. This is untrue: under Oregon law, whether a driver is impaired or fully capable of driving safely is entirely irrelevant to the DUII charge.
Instead, the law makes it illegal to drive "under the influence of intoxicants". This, however, is not defined as driving while impaired due to intoxicants. Instead, "under the influence of intoxicants" is defined by: (1) the arbitrarily set blood alcohol level of .08%; and/or (2) failing the so-called "sobriety" tests.
These are both faulty tests. Many individuals can still drive safely with a blood alcohol level of .08%, as it was intentionally set low.
The so-called "sobriety" tests are worse, though. Many common medical conditions can make a driver fail these tests, even though the driver is not impaired and can drive safely. Fibromyalgia, for example, which afflicts about 2% of the population, can make a patient fail all three of the tests described. The test for nystagmus is actually used as a diagnostic test for fibromyalgia.
The Oregonian says that police and prosecutors claim that "the science of these tests has held up in court over the years, leading to many thousands of convictions statewide". I would challenge them to cite a single scientific study judging the ability of these tests to differentiate whether failure is caused by fibromyalgia or an intoxicant. (I can tell you in advance that no such scientific study has ever been conducted.) We have no way to know how many of these convictions were wrongful convictions of innocent individuals who suffer from common health problems.
(Further, judges and juries are not asked to rule on the "science" of these tests, any more than they are asked to determine whether the individuals charged with DUII are impaired or can drive safely. It is illogical and fallacious to claim that such convictions support the "science" behind these so-called "sobriety" tests.)
Instead of presenting scientific evidence demonstrating that drivers charged with DUII are impaired and unable to drive safely, prosecutors rely on other methods of persuasion. These include testimony describing tragic deaths caused by drunken driving. This is a classical logical fallacy: evidence that drunken driving can result in tragic consequences does not make it any more likely that a particular defendant committed the offense, but the appeal to emotion makes jurors more likely to convict.
The fact is, not only does Oregon DUII law allow harmless, safe drivers to be prosecuted and convicted, other causes of impairment are ignored. Simple tiredness causes far more traffic accidents than alcohol and drugs, but someone whose driving is impaired by tiredness is not committing a crime under Oregon law.
A more rational law would ignore the irrelevant issue of the cause of impairment. Instead of breath, urine, and so-called "sobriety" tests that do not determine whether a driver is impaired, the police could test drivers with a driving simulator when they suspect that they are unable to drive safely. They could easily have one installed in a car or van and call it to the site when they have someone stopped.
This would improve safety by catching unsafe drivers regardless of the cause, and leave those who can drive safely but nonetheless fail irrelevant tests alone to go about their business.
Finally, those concerned with driving safety should also consider this: A recent study has shown that states (including Oregon) that have legalized medical marijuana have experienced an average drop in traffic fatalities of 9%, once other factors have been eliminated (the Portland Oregonian did not report this study, but did mention the decline in traffic deaths). Yet drivers suspected of driving "under the influence of intoxicants" are required to submit a urine sample. This is tested for many drugs, but not for the active ingredient in cannabis. Instead, the urine is tested for inactive breakdown products that can cause a positive test weeks after the drug's effect has ended. (Blood can be tested for the active drug in cannabis, THC, but this test is not done.)
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