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Dead Constitution See other Dead Constitution Articles Title: Drunken-driving arrest at 0.05 a sobering lesson for all this holiday season Drunken-driving arrest at 0.05 a sobering lesson for all this holiday season It’s illegal to drive drunk, but it’s not necessarily illegal to have a drink and then drive. That’s why Jerry Boyer figured he had no problem when he left a local American Legion hall late on the Saturday after Thanksgiving and headed home. He says he had driven down Harris Road, turned right on Goshen and then made a quick left onto Butler Road, one of those awkward jogs that are all over the city, when he was stopped by a county sheriff’s officer, allegedly for not using his turn signal. Boyer says he did signal, but that’s another issue. The officer gave him a alcohol breath test in the field, and Boyer blew a 0.04 percent, well below the 0.08 percent blood-alcohol content required to be considered intoxicated. Then he was taken downtown where he was tested again. This time, he blew a 0.05 percent, still below the legal limit. Boyer figured it was about time for him to go home when the officer told him, I’m arresting you for DWI. Boyer, who is 60, was stunned. His car was impounded and towed away, and he ended up in court a few days ago. Once again, because he tested only 0.05 percent, below the legal limit for intoxication, he figured the case would be thrown out. Instead, his license was suspended immediately and a new court date set. Now, he says, he’s stuck; he can’t drive. It doesn’t make sense to him, and it probably doesn’t make sense to a lot of other people. It sends the message, “This holiday season, if you’re invited to a party in Fort Wayne, just stay home.” It turns out the law, though it sets a legal limit of 0.08 percent for intoxication, has a provision that says that if you are below 0.08 percent but are impaired, you can still be charged. What’s impaired? Well, that’s a matter of discretion, according to people we talked to. One officer said it is possible that a person who has never drunk alcohol or who seldom drinks could be pretty tipsy with an alcohol level below the legal limit. The same officer said it is possible that a person could test low, but that person’s blood-alcohol could be on the rise. In another 30 minutes, that person could be legally intoxicated. That particular officer said in such a case he would simply refuse to let the person continue to drive and ask the driver to get another ride home. Boyer plans to contest the issue. His lawyer points out that Boyer was arrested during a crackdown on drunken driving over the Thanksgiving holiday, when police were trying to arrest as many people as possible. He also says the officer who arrested Boyer at 0.05 percent also arrested another person who was 0.06 percent. So was this overzealous enforcement of drunken-driving driving laws? Is the legal limit 0.08 percent, but, nudge, nudge, we can arrest you at any level if we want to? That’s something that will have to be decided. Boyer’s lawyer says he himself was surprised to learn that you can arrest someone who is well below the legal limit. He added that his client passed all the physical tests, so whether Boyer was really impaired will have to be decided in court. But it’s a curious lesson for everyone else. Regardless of what you’ve heard, you can be arrested with an alcohol level you thought made you perfectly legal. The key seems to be whether you make a mistake while you’re driving. People have often said – and you’ve probably heard it: Drive for 15 minutes and at some point you will break some traffic law or another. You’ll go a little too fast, get a little to close to the line, not signal a lane change or fail to stop at a stop sign. You might stop, but you’ll stop 3 feet past the sign, which can be interpreted as failing to stop at the stop sign. If you’ve had two glasses of wine with dinner, or two or three beers at a sports bar, and you’re at 0.05 percent, is that evidence that you’re drunk? That’s a question we can’t answer, and that won’t offer much comfort to anyone.
Poster Comment: Just some more of that New American Century freeeedom pouring down on us.
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#3. To: Esso (#0)
This should get throw out. Proving impairment, based upon pure subjective jugdement, when you have been proven under the legal limit, has no grounds. This was just a general snare of anyone who blew any reading at all. Highly unconstitutonal, but the courts have said it was legal based upon if the location of the check point is made public. Mark
Isn't it a little bit wrong for a law to be constructed in such a manner that you need equipment to determine if you are actually in compliance with it? Would anyone even know they were "impaired" at 0.05%? When tired or bored (because I'm within the revenue enhancement zone in downtown Detroit on I-75 where the speed limit is 55mph) I'm a little squirrely in the lane. How can they determine what the actual cause of erratic driving would be with BAC that low? I don't understand how checkpoints can be legal simply because they're announced. If they announced that at the same checkpoint everyone travelling on that road would be summarily executed, would it be legal because people were told in advance? To use a slightly less extreme example, would the courts find it constitutional for everyone at the checkpoint to be detained for up to 24 hours because a criminal might pass through there, as long as they announce it in advance?
I agree with you. More and more accidents are caused by eating, messing with the radio, talking on the phone, or just all the gizmos and distractions that are now in peoples cars. `m sure this stat is highly underreported. Mark
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