Archive for October 18, 2007

DWI Madness

October 18, 2007

The title of the story in today’s Shreveport Times is “Appellate court upholds conviction on charge of attempted DWI.” When I read that, I thought that even though I’d never heard of such an offense, it looked reasonable. I mean, you could justify criminal charges on the following facts, as stated by the appellate court in its decision:

“For example, a bar patron who has thrown back drink after drink may announce that he is about to drive home. The bartender warns him that he is in no condition to drive. The patron waves off the warning with the proclamation that he is certainly drunk but he drives while impaired all the time and it is not a problem. While he is struggling to get his key in the door, the police arrive, having been called by a concerned patron of the bar. Attempted DWI sounds like the right charge under this hypothetical scenario.”

There’s two big problems, though.

One, those facts are just what the judge called them: Hypothetical. The real facts in this case were very different:

Dew was northbound on U.S. Highway 171 when a trooper stopped him for speeding. The trooper noted a slight smell of alcohol and that Dew “somewhat failed” nystagmus and field sobriety tests. Just more than an hour after the stop, Dew registered a blood-alcohol level of .07 percent. 

If you’re unfamiliar with DWI laws and procedures, those facts mean that the defendant – Dew – may or may not have been drunk.

To start, field sobriety tests (FST’s) are subjective guides, at best. Mostly they are easily manipulated methods of confirming a decision already made by the officer. They don’t have clear standards for passing or failing, they’re often administered incorrectly, the conditions are usually less than optimal, many rely on bad science or common myths. So they’re inconclusive anyway, and even less helpful when the administering officer says the defendant “somewhat failed,” whatever that means.

As for the blood alcohol test, again, there are all kinds of possible problems, but there is no need to discuss them here. The problem here is that in Louisiana (and most other states) you’re guilty of DWI if you blow a .08. This guy blew a .07.

Of course, that he blew a .07 and hour after the stop does not mean he was sober at the time of the stop. All I’m saying is that these facts indicate this guy could just as easily have been sober as drunk at the time of the stop.

Yet, he’s guilty of attempted DWI. Think about that. What this ruling essentially says is that if you are even close to being drunk, you can be guilty of attempted DWI. Not like the hypothetical where the person is drunk and tries to drive but fails. No no, here, the person succeeded in driving, but failed to get drunk! The court is saying that even if the state can not prove the driver was actually drunk, it is enough to prove that the driver might have been drunk, because in that case, there was certainly an attempt to get drunk.

That sort of worries me. Where do we draw the line? If a person’s BAC is .06, is that enough to defeat a charge that the person attempted to get drunk? What if the person’s BAC is .05, but he has an unopened six pack in the trunk? Would that be attempted DWI? How about someone who has several beers over several hours, so that the BAC is .06? Would the number of beers be enough to prove that the person tried to get drunk, so as to be guilty of attempted DWI? Who knows.

To the second problem with the opinion. According to the article, the court created out of thin air the offense of attempted DWI.

Chief Judge Henry N. Brown Jr. dissented. He called the Dew case one of “first impression.”

“There is only one reported case of a defendant charged with DWI being convicted of attempted DWI “» and in that case, the defendant did not complain of any irregularity relating to the offense itself. There are no cases in which a defendant was charged with attempted DWI. We simply have no jurisprudential history in Louisiana to assist us in answering whether attempted DWI is a crime,” he states.

I do not know if that is accurate or not, but if it is, it bothers me. No one ought to be arrested and thrown in jail for crimes that did not exist at the time of the arrest. That just is not fair. I won’t even punish the kids in my seventh grade class unless I’ve given them fair warning that the conduct is not allowed. Surely we are entitled to the same notice when the consequences are years in prison.