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Spirit of Drunk Driving Laws: Impairment vs. Intoxication

Thursday, March 07, 2013

A man being arrested for DUIOn, Radley Balko provides a persuasive position for DUI Law reform. His basic argument is that impairment, not specifically drinking and driving, is what lawmakers should be focused on punishing. As justification, Balko quotes Austin Police Chief Art Acevedo: “people sometimes focus on how many drinks they can have before they’ll go to jail, […]. It varies … a person may be intoxicated at 0.05, and you don’t want them out driving.” Acevedo wants to arrest people with BAC levels at 0.05 percent, and Balko rightly points out that he misses the point. If a person may be intoxicated at 0.05 BAC and not 0.08, Acevado is truly arguing that DUI arrests should be focused more on impairment and not presumed intoxication, which presents the problem inherent to current DUI law: How do you measure impairment?

As Balko notes, there are several causes of driver impairment other than alcohol. A 2001 American Automobile Association study found that eating, adjusting radios or GPS devices, and having kids in the backseat could impair a driver as much as or more than having a BAC of 0.08. And although texting while driving is a traffic violation in many states, talking on a cellphone while driving is not. Regardless, a texting-while-driving ticket costs less and does far less damage to a person’s reputation than a DUI conviction or even arrest. The difference between these causes of impairment is that an amount of alcohol or drugs can be accounted for in a person’s blood or breath, while proving that a person had been driving recklessly because they were distracted by their kids is not quantifiable. Again, though, as Acevedo explains, neither is alcohol or drug impairment.

Of course, if you can measure the amount of alcohol or drugs in a person’s blood and you can’t measure impairment due to other distractions, why not just take what you can get and prosecute impairment you can prove? Most people would agree that the answer is obvious – it’s unfair. But this is how the majority of DUI statutes function in the United States. And while, as Balko says, it may all be about “a lingering hostility toward demon rum,” there is also the question of the spirit of the law. DUI statutes are about keeping the roadways safe. When they serve this aim – as well as raise huge amounts of revenue and unduly punish citizens who casually drink alcohol – they undermine their true purpose.




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    George C. Creal, Jr. is a trial lawyer with 18 years of courtroom experience. He is one of only 6 Metro DUI lawyers with both an AV Preeminent rating from and a 10.0/10.0 Superb rating on  With over 100 not guilty jury verdicts under his belt, George knows how to convince a jury that the State has not proven his client guilty of DUI beyond a reasonable doubt.
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