Drive Hammered (Under The Limit) Get Nailed?!

This week in Whatcom, Skagit, Island, and many other counties in Washington State, the “Drive Hammered get Nailed” campaign begins and continues through Labor Day.  While the message is clear, — You’ll likely get Nailed by local and state law enforcement if you drive hammered, the actual effect is such that some legally sober driver’s will be caught in this overly wide “net” that is cast by law enforcement. There is no doubt that the enforcement of laws is a...


This week in Whatcom, Skagit, Island, and many other counties in Washington State, the “Drive Hammered get Nailed” campaign begins and continues through Labor Day.  While the message is clear, — You’ll likely get Nailed by local and state law enforcement if you drive hammered, the actual effect is such that some legally sober driver’s will be caught in this overly wide “net” that is cast by law enforcement.

There is no doubt that the enforcement of laws is a good idea, there is also no doubt that enforcement of the State Drunk Driving Law (RCW 46.61.504-DUI) is likewise a good idea, but whenever such a widespread and focused hunt begins, innocents are always caught up in the frenzy of this campaign.  Nevertheless, this campaign joins together, the Whatcom County Sheriff’s Office, Bellingham Police Department, Ferndale PD, and Western Washington University police, and the State Patrol in the effort to patrol the local county roads with vigilance.

While I am the first person to say that the best way to avoid a DUI is to Not Drink and Drive, I am also the first to point out that such behavior in our state is perfectly legal—as long as consumption is done responsibly so that the legal limit if .08 is neither reached nor exceeded, nor is the person “affected by” the alcohol drank.  Well how much is that?  While everyone is different, common sense should tell is that if you under a .08 you are not affected otherwise why would we have such a limit?

So how do Non-Drunk Driver’s find themselves “Nailed” by this campaign despite not being Hammered?  Simple, they drink, then legally drive, then they are stopped by law enforcement who have a mandate under this campaign to make a certain amount of contacts with driver’s per hour; so driving issues that would not get you stopped at 5pm will in fact get you stopped after 1030 or 11 pm.

Once stopped, a driver  who has legally consumed alcohol will smell like alcohol.  They will be asked if they drank and having nothing to fear, will admit to drinking.  To ensure that a person “is safe to drive away” an officer will likely request that you perform a series of roadside “sobriety” tests which have more to do with balance, and coordination they sobriety.  While they are a voluntary test, and as such should be politely declined, many drivers do not know this, and they think the tests are fair and they have nothing to fear.  The tests, however, they are a simple tool that is seriously flawed and the sole judge of your performance on these tests is the officers who will likely err on the side of caution and place the driver under arrest.  BUT I AM NOT DRUNK OFFICER?

While it may very well be true, officers hear this all the time and so the protest falls upon deaf ears.  Once under arrest the driver will be transported for a breath test and for the truly responsible driver they will blow less than the legal limit.  So is the driver then released?  Sure, but not without a citation for DUI and a date with a Judge to now face the charges of DUI, despite being under the legal limit.  How can this be possible?  Need some proof? I current represent someone in this exact situation.  Furthermore, the State Patrol is in charge of the breath testing program and every single time the breath test machine is used, even if there is a refusal, the database keeps a record of the event and the citation number assigned. http://breathtest.wsp.wa.gov is the site where breath testing data is collected from all breath test machines in the state of Washington.  Peruse it, the evidence of numerous under .08 breath tests for driver’s over the age of 21 is right there.

I have searched the online breath test site for just one of the breath test machines in Whatcom County, located at the jail.  Beginning the search on June 1, through today’s date here is what is there:  June 15 a 57 year old driver was arrested and cited for DUI after having provided a .06 and a .07 breath sample; June 18, the same officer arrested and cited a 26 year old for DUI who provided breath samples of .07 and .07.  In July, a 42 year old driver was arrested for DUI and that driver provided samples of .07 and .06; another driver, age 24 also arrested and provided breath test samples of .06 and .06; two days later a 21 year old also faces a DUI with breath samples of .04!  As I continue to look through the machine there are another 7 people, over the age of 21 all provided breath samples of UNDER the legal limit!  These are only the numbers when there is no emphasis, this is just regular patrol. This is also just one breath testing machine and there are at least 8 in various locations of Whatcom County.

Overall, there are far more tests results that exceed the .08 legal limit, but that does not change the fact that each of the people under .08 are factually and legally innocent of the charge.  That very important detail, however,  does not change fact that these innocent drivers now faces severe consequences for their legal behavior.  This is mostly due to the nature of the crime of DUI and the rhetoric that supports this type of emphasis patrol.

Supporters of these emphasis patrols use statistics to justify the campaign.  This year Traffic Safety Commission Chief Lowell Porter states that “If we take about 5 years worth of data and average it, about 31 percent of the fatal crashes involving impaired drivers for the entire year occur in July August and September those 3 months.”  The trouble with numbers like these is use of terms like “impaired,” rather than the more accurate description of “alcohol related.”  In gathering these statistics, there is no differentiation between impairment from cell phone use, texting, alcohol use, drowsy driving, or just plain old distracted driving.  They all impair so that is the catch all category.

So, what happens to the DUI arrested driver under .08 who is really not DUI?  They are not simply released by the officer’s with an apology for the inconvenience, stress, and embarrassment  of the wrongful DUI arrest, rather they appear in front of a Judge,are formally charged with the crime of DUI, and now are faced with defending a DUI charge despite being clearly under the legal limit.  Many will be offered a lesser charge, undergo a drug and alcohol evaluation, and pay a fine but that does not change the fact that they will likely plead guilty to a crime, incur the cost of an attorney / lawyer, miss work for court appearances, miss work to do the evaluation, and have to explain this and more to friends, family, and children.

In a society where freedom is cherished, and the system of laws is founded upon the premise of “Innocent until proven guilty” it makes a driver wonder if that really is the case?  Taken to the extreme, which these campaigns certainly do, it is now understood just how a person who is a responsible drinker and a responsible driver find themselves facing a DUI charge.  Casting a huge net for Tuna often catches a fair amount of Dolphin.

This week, Sunday August 15, 2010 at 1030 Jonathan Rands speaks more about this issue on local AM 790 KGMI with Tracy Ellis on “The Legal Docket.”  Jonathan and Tracey discuss a new car search case State v. Tibbles, as well as the recent Drive Hammered Campaign.  The show is available after this date as a podcast on KGMI’s website.