Calls to lower the legal limit to .05

In the latest step in the never-ending quest to criminalize everything, the National Academies of Science, Engineering and Medicine have called to lower the legal limit for alcohol from .08 to .05. According to the Academy, impairment is present at a much lower level than the law accounts for.

The Academy also calls for mandatory ignition interlocks for all offenders for a period of at least 2 years. It also calls for limits on alcohol advertising and availability. The report calls for stricter measures to prevent people under the age of 21 from purchasing alcohol. The report also calls for more DWI courts and, seemingly as a throwaway, sobriety checkpoints.

For years the legal limit in most states in the US was .10. That was reduced to the current .08 during the Reagan years (so much for federalism). When the National Highway Traffic Safety Administration codified the modern standardized field sobriety tests, the science said that .10 was impaired and the battery of tests could help an officer to decide whether or not he thought a driver was over the limit or not.

When the limit was reduced in the 1980's the testing protocol remained the same because there was no new science to back up the new limit. Now we were told that this battery of tests could help an officer determine if a driver's alcohol concentration was above .08. The reduction in the limit amounted to roughly one drink.

Now, I'm not going to argue that drunk driving isn't a problem. I have always told clients, and prospective clients, that the best way to avoid a DWI arrest is not to drink and drive. Roughly a third of accident fatalities are the victims of a drunk driver. However, as anyone who practices criminal law knows, the vast majority of DWI arrests aren't the result of an accident. Most drivers arrested for DWI were speeding, failed to signal a lane change, swerved momentarily into another lane or had some equipment violation such as a burned out taillight or an expired registration sticker.

Lowering the limit from .08 to .05 is the equivalent of two drinks. This means that that third glass of wine could be the difference between sleeping in your own bed and staying at the Grey Bar Hilton on a Friday night.

The current battery of standardized field sobriety tests can't determine the difference between .05 and .08. Are we going to reduce probable cause for a DWI arrest to the smell of alcohol on a driver's breath?

The most troubling recommendation in the report is for the increased use of sobriety checkpoints. I guess the members of the Academy are unfamiliar with the 4th Amendment. Now I realize that the courts in some states have ignored the 4th Amendment and decided that there wasn't any need for probable cause for a search and seizure but thankfully that hasn't happened (yet) in Texas.

Sobriety checkpoints are a direct assault upon the right of the people to be free from unreasonable search and seizure. For every other criminal act, the police must have probable cause (or the nebulous reasonable suspicion) to stop a person. Sobriety checkpoints allow the police to stop folks who haven't done anything to warrant suspicion and arrest them.

And how are they going to function? Does every driver blow into a portable breath tester? Only the ones who have the odor of alcohol on their breath?  And what happens when a driver refuses to blow into the PBT? The results of a PBT aren't admissible in Texas, if someone blows over a certain amount are they immediately cuffed and taken to a testing facility? Are they asked to perform roadside sobriety tests on the spot?

This proposal would only increase the number of folks caught up in our criminal (in)justice system. That means more people being arrested, having to post bond, hiring attorneys and paying assorted legal fees and court costs. It also means more folks having criminal records. And all of this for behavior which is perfectly legal right now.

Reducing the number of drunk drivers on the roadways is a worthy goal. However, before we criminalize behavior that is now legal and subject many more drivers our criminal (in)justice system, there needs to be some science behind the proposal.

Feds seeking to lower legal limit to .05

The National Transportation Safety Board has decided that the per se limit for drunk driving should be lowered to .05. Such a move would lower the current legal limit by more than 33% - a staggering number.

The rationale is that there are too many folks dying on our roadways every year. The NTSB keeps saying there are more than 30,000 fatalities that are alcohol-related annually. The number is misleading because all it takes is for one person involved in the accident - regardless of whether that person is driving or at fault for the accident - to have alcohol in their system to qualify the accident as alcohol-related.

A study from the Insurance Institute of America projects highway deaths could be reduced by a little over 7,000 a year if the legal limit were reduced to .05. Now let's crunch some numbers. According to the IIA, traffic deaths would be reduced by less than 25% by reducing the legal limit by more than 33%. That, my friends, doesn't compute. What is shows is the diminishing utility of making DWI laws more severe. Their numbers make a poor case for lowering the limit in that you will be punishing far more people for a very modest reduction in lives lost.

If we are going to accept the premise that lowering the permissible alcohol concentration will reduce the number of deaths on the roads, then why not go all the way and institute a zero-tolerance policy? If a .08 concentration is bad then why stop at .05? If we are going to make the assumption that someone is "under the influence" at .05, won't they still be "under the influence" at .02?

Interestingly enough, both MADD and NHTSA have expressed their opposition to the proposed change. It's probably fair to infer that MADD is betting the public would turn against it if the laws were tightened further. Their focus now seems to be getting repeat offenders off the roads.

Are we looking at another push by the federal government to thumb its nose at the 10th Amendment and force the states to lower their per se limits or find their highway funds cut? Or will the states find themselves pressured to create a new offense of driving while impaired (or DWI Lite)?

There are already far too many traps for motorists. We need to be looking at ways to reduce the number of people who filter through the criminal (in)justice system. We don't need more folks under supervision or behind bars. We don't need more folks with convictions on their records.

What will become of the roadside DWI calisthenics? Will NHTSA authorize another pseudo-scientific attempt to "validate" these exercises for alcohol concentrations of below .08?

The problem with a per se limit is that it's a fiction. There are folks out there who lose the normal use of their mental or physical faculties after just one drink. There are others who can drink much more before the debilitating effects of alcohol take hold.

Now make no mistake about this, I want to keep drunk drivers off the roads. But I don't want to see more people cuffed and stuffed into the backs of police cars when they have done nothing wrong. I sure as hell don't want to see more forced blood draws -- though with the current backlogs we are experiencing, any more blood draws would come damn close to flooding the system.

The NTSB idea is a bad one - but that never stopped a legislator from picking up the ball and running with it. Now is the time to nip it in the bud.

Causation or correlation?

So here I am heading home from the office the other day listening to All Things Considered on the radio and there's this story about Kenya trying to fight the scourge of HIV by encouraging men to get circumcised. The reporter quoted a scientific study that the rate of HIV infection in uncircumcised men was substantially higher that the rate for men who were circumcised.

Well, that got me to thinking. This link between circumcision and HIV infection rates - is it an example of causation or correlation?

In other words, does getting circumcised reduce one's risk of getting infected by HIV, or is there something else at work? Is it because uncircumcised men have riskier sex practices? Is it because circumcised men are practicing safer sex?

The literature appears to be all over the place. Of course since the World Health Organization (WHO) jumped on board the circumcision train money has poured into Africa to fund circumcision programs. But there is still precious little hard evidence that circumcision has anything to do with HIV prevention.

Adding to my skepticism that there is no causal relation between the two are activists in Europe and the United States attempting to ban the procedure on newborns. If circumcision really prevented HIV infections, why would anyone be campaigning against it?

Now I'm no doctor and I am not going to sit here and pretend that I have some vast store of knowledge about the transmission of infectious disease or the human reproductive system. But I do think this issue is a perfect example of the causation v. correlation puzzle we run into in the courtroom.

The police coordination exercises the police use on the roadside to determine whether they're going to arrest a motorist for driving while intoxicated have everything to do with correlation, not causation. The studies used to provide a modicum of "scientific heft" to the roadside exercises all speak of correlations between levels of intoxication and performance on the exercises. Not one of them show evidence of causation.

The distinction is important. Let's say you're watching your favorite team play in a crucial game (sport and team not important). All season long whenever you've worn a certain shirt or cap or drank a certain beer or ate a certain sandwich, your team came through. Your actions did not cause your team to prevail. There was no causal link between your shirt (or your cap or beer or sandwich) and your team's performance. There was just a correlation - when you wore your shirt, your team just happened to win.

On the other hand, if it's dark out when you're driving home you turn on your headlights - as does everyone else out on the road. The lack of light caused you to turn on your headlights. There is a causal connection between nighttime driving and headlight use.

We can draw correlations between all sorts of statistics but just because you can draw a correlation between two observations doesn't mean that one caused the other. Your lucky socks won't help you win that poker game tonight, but your skill in reading the other players and their cards will.

Just because a motorist exhibits certain clues or signs or behaviors when walking up and down a straight line, doesn't mean that alcohol caused his performance. There are plenty of other factors that are not taken into account by the officer asking you to perform the exercise. And while the so-called validation studies may have drawn correlations to intoxication and performance on the roadside exercises, the studies did not make any causal connections.

The prosecutor will try to make it look like there is a causal connection between intoxication and performance, it's your job to point out to the jury the difference between causation and correlation.

The eyes have it?

The American Optometric Association adopted a resolution at their 2011 House of Delegates endorsing the use of the Horizontal Gaze Nystagmus test by "properly trained and certified" police officers. The AOA "found" that the test is a scientifically proven reliable indicator of intoxication.

The AOA also said it supports the use of optometrists as consultants for law enforcement in the area of the HGN test.

Of course let's not forget the distinction between optometrists and ophthalmologists. An optometrist is must have a Doctor of Optometry degree. An optometrist serves as the primary provider for normal vision problems and for yearly eye exams. An ophthalmologist, on the other hand, is a medical doctor who specializes in the eyes. An ophthalmologist is able to diagnose complicated eye issues and is able to perform laser eye surgery.

You go to the optometrist to get fitted for glasses or contacts. You go to the ophthalmologist when you've got a problem with your eyes. Just who do you think is more qualified to opine on the validity of an HGN test?

But the optometrists believe that training a police officer with no knowledge of the physiology of the eye or of common eye ailments for a couple of hours is sufficient to make that officer an "expert" in the determination, by use of a pseudo-scientific eye test, of whether a motorist has lost the normal use of his or her mental or physical faculties. More than that, the optometrists apparently believe that a two-hour training session on HGN makes a police officer just as qualified as an optometrist to testify as an expert on HGN.

AOA Resolution 1901

You don't suppose that the AOA was just looking for a way to provide supplemental income for its members as whores for law enforcement, do you?

Highway fatality rates drop to lowest level since 1949

With state after state ramping up DWI enforcement and dreaming up new ways to violate motorists' rights comes news that the rate of traffic fatalities per 100 million miles has fallen to its lowest rate since 1949. In 2009 there were 33,808 traffic fatalities in the United States, last year that number dropped to 32,788 - despite an increase in the number of miles driven.

But those numbers are doubly interesting because of another NHTSA report I wrote about last December. That report stated that 45,230 motorists were involved in fatality accidents in 2009. It seems like NHTSA's playing around with its numbers. The prior report counted everyone involved in a traffic fatality accident -- regardless of whether or not they were responsible for the accident or injured or killed in the accident.

Some may point to the drop in fatalities as proof that stricter DWI enforcement (and gutting of the 4th Amendment) is working. Any such conclusion is not supported by the evidence, however. Safer cars and the increased use of seatbelts have played a large role in reducing the number of highways deaths. According to the report:

NHTSA has also taken action to improve vehicle safety. The agency has urged automakers to swiftly and voluntarily report safety defects to keep the driving public safe. NHTSA has also encouraged the development and use of technologies to prevent crashes, such as electronic stability control, forward collision warning and lane departure warning systems. The agency also unveiled an updated 5-star rating system in 2010, which established more rigorous crash-test standards and began providing consumers with improved information about which cars perform best in collisions. 

The U.S. Department of Transportation's Federal Highway Administration (FHWA) has also been encouraging the use of Safety Edge technology -- which reduces drivers' risk of running off the road by shaping pavement edge -- on new road and highway projects. FHWA has also promoted the use of rumble strips and cable median barriers to separate opposing directions of traffic to reduce the incidence of crossover head-on collisions.

The rate of highway fatalities decreased the most in the Pacific Northwest and in California/Arizona. Areas in the South where the assault on the Fourth Amendment has been more pronounced saw a much smaller drop in highway deaths.

The fact remains that most DWI stops involve driving behavior that an officer wouldn't think twice about during daylight hours. How many people do you see on the roads everyday that don't signal each and every turn and lane change? How many of y'all do? How many folks get pulled over for malfunctioning lights or turn signals during the day?

The roads are safer today than they've ever been. Too bad we can't say the same about the Bill of Rights.

Something's just not adding up

If you listen to MADD and law enforcement, you might think the roads are more dangerous today than they've ever been. You might think that we need to shred the Constitution and Bill of Rights in order to regain control of our highways. You might think that drunk driving is worse today than just a few years ago.

You might think that -- but you'd be wrong. Despite the media hype of No Refusal Weekends and forced blood draws, the reality is that our highways are safer now than they were ten years ago. And that's according to the National Highway Traffic Safety Administration (NHTSA).

In 2000, there were 57,280 drivers involved in fatality accidents. Of those drivers, 12,261 had alcohol concentrations of .08 or higher (that's 21% of the drivers). That number, however, does not indicate how many of those impaired drivers were at fault for the accident.

Fast forward to 2009 when the number of drivers involved in fatality accidents dropped to 45,230. The number of drivers with alcohol concentrations of .08 or higher dropped to 10,102 (22% of the drivers). Again, we don't know from the NHTSA study how many of those impaired drivers were at fault for the accident.

So, between 2000 and 2009, there were 21% fewer drivers involved in fatality accidents and almost 18% fewer drivers with alcohol concentrations of .08 or higher. If that's the case, if our roads are safer now than they were ten years ago, why the push to curb motorists' constitutional rights?

Is the No Refusal "movement" the proverbial nose of the camel edging underneath the tent? If we demonize motorists accused of driving while intoxicated are we making it easier to curtail the rights of other defendants?

Austin police chief wants new DWI charge

Art Acevedo, the police chief in Austin, Texas, has gone on the record in favor of creating a new DWI offense in Texas. Mr. Acevedo would like to add the offense of driving while ability impaired (DWAI) for motorists who are below the legal limit.

In Mr. Acevedo's world, any driver with an alcohol concentration of greater than .05 but less than .08 would be charged with the new offense. I guess that would do away with that pesky little matter of a driver blowing under the limit - and a jury wondering why he's on trial.

No one has proposed what category misdemeanor the new offense would be. My guess is it would be a Class C misdemeanor - the equivalent of a traffic ticket. It would make no sense to create a new Class B drunk driving offense. Would DWAI become the new "reduced charge" for those accused of DWI?

The proposed offense makes no sense on an intellectual level. If a motorist is stopped and the officer suspects he is intoxicated, the officer will administer roadside coordination exercises. If the motorist "fails" those exercises, he would be arrested for DWI and asked to blow into the breath test machine. At what point would an officer decide to arrest for DWAI? According to the NHTSA Manual, the roadside coordination exercises are designed to detect drivers with an alcohol concentration of .08 or higher; does this mean that officers will arrest drivers who "pass" the roadside exercises? If the person "fails" the roadside exercises an officer could not arrest for DWAI, because that person would have lost the normal use of their mental or physical faculties according to NHTSA - at that point it wouldn't matter what the driver's alcohol concentration was.

And, where's the scientific evidence that a motorist's faculties are impaired to the point of being a danger at an alcohol concentration of .05? There are people driving completely sober that are a hazard on the road.

The addition of a new DWI offense will do nothing more than pull more people into the reaches of the criminal (in)justice system.

Happy trails to you

Isn't driving into opposing traffic one of the "most common and reliable initial indicators of DWI" according to NHTSA?

Seeing might just be believing

Earlier this month, police in Clarence, NY pulled over Michael Bartz for driving 59 mph in a 45 mph zone. That Mr. Bartz was speeding wasn't newsworthy. Blowing a .30 on the state's breath test machine, on the other hand, was.

The newspaper article states that a 160 lb. man would have to consume 11 alcoholic drinks in an hour to reach a .30. My Alcopro Drink Wheel tells me that it would take 13 drinks to achieve that blood alcohol concentration. Either way, that's a lot of alcohol in a short amount of time.

According to the Phoenix House's "Facts on Tap" website, these are the effects and behaviors you would expect to see at various blood alcohol concentrations:

BAL .02%-.03%: You feel mildly relaxed and maybe a little lightheaded. Your inhibitions are slightly loosened, and whatever mood you were in before you started drinking may be mildly intensified.

BAL .05%-.06%: You feel warm and relaxed. If you're the shy type when you're sober, you lose your feelings of shyness. Your behavior may become exaggerated, making you talk louder or faster or act bolder than usual. Emotions are intensified, so your good moods are better and your bad moods are worse. You may also feel a mild sense of euphoria.

BAL .08%-.09%: You believe you're functioning better than you actually are. At this level, you may start to slur your speech. Your sense of balance is probably off, and your motor skills are starting to become impaired. Your ability to see and hear clearly is diminished. Your judgment is being affected, so it's difficult for you to decide whether or not to continue drinking. Your ability to evaluate sexual situations is impaired. Students may jokingly refer to this state of mind as beer goggles,but this BAL can have serious repercussions. See the pages on Sex and Alcohol: A Risky Relationship for how to protect yourself.

BAL .10%-.12%: At this level, you feel euphoric, but you lack coordination and balance. Your motor skills are markedly impaired, as are your judgment and memory. You probably don't remember how many drinks you've had. Your emotions are exaggerated, and some people become loud, aggressive, or belligerent. If you're a guy, you may have trouble getting an erection when your BAL is this high.

BAL .14%-.17%: Your euphoric feelings may give way to unpleasant feelings. You have difficulty talking, walking, or even standing. Your judgment and perception are severely impaired. You may become more aggressive, and there is an increased risk of accidentally injuring yourself or others. This is the point when you may experience a blackout.

BAL .20%: You feel confused, dazed, or otherwise disoriented. You need help to stand up or walk. If you hurt yourself at this point, you probably won't realize it because you won't feel pain. If you are aware you've injured yourself, chances are you won't do anything about it. At this point you may experience nausea and/or start vomiting (keep in mind that for some people, a lower blood alcohol level than .20% may cause vomiting). Your gag reflex is impaired, so you could choke if you do throw up. Since blackouts are likely at this level, you may not remember any of this.

BAL .25%: All mental, physical, and sensory functions are severely impaired. You're emotionally numb. There's an increased risk of asphyxiation from choking on vomit and of seriously injuring yourself by falling or other accidents.

BAL .30%: You're in a stupor. You have little comprehension of where you are. You may suddenly pass out at this point and be difficult to awaken. (But don't kid yourself: Passing out can also occur at lower BALs. But, at lower blood alcohol levels, you may decide You've had enough to drink and go "pass out." With an alarming BAL like .30%, your body will be deciding to pass out for you.) In February 1996, an 18-year-old student died of alcohol poisoning with a BAL of .31% after attending two parties the night before.

So, according to research conducted by the Phoenix House, Mr. Bartz should not have been able to operate a motor vehicle at that blood alcohol concentration. Could the state's breath test machine have been wrong? Did Mr. Bartz' blood alcohol concentration increase after he was stopped? If he had been drinking while driving, did the alcohol in his mouth affect the test result?

Dr. Kurt Dubowski, considered by many to be an expert in the field of alcohol testing, put together this chart showing the effects of alcohol on the body at various concentrations:

BAC (g/100 ml of blood or g/210 l of breath)	Stage	Clinical symptoms
0.01 - 0.05	Subclinical	Behavior nearly normal by ordinary observation
0.03 - 0.12	Euphoria	Mild euphoria, sociability, talkitiveness Increased self-confidence; decreased inhibitions Diminution of attention, judgment and control Beginning of sensory-motor impairment Loss of efficiency in finer performance tests
0.09 - 0.25	Excitement	Emotional instability; loss of critical judgment Impairment of perception, memory and comprehension Decreased sensitory response; increased reaction time Reduced visual acuity; peripheral vision and glare recovery Sensory-motor incoordination; impaired balance Drowsiness
0.18 - 0.30	Confusion	Disorientation, mental confusion; dizziness Exaggerated emotional states Disturbances of vision and of perception of color, form, motion and dimensions Increased pain threshold Increased muscular incoordination; staggering gait; slurred speech Apathy, lethargy
0.25 - 0.40	Stupor	General inertia; approaching loss of motor functions Markedly decreased response to stimuli Marked muscular incoordination; inability to stand or walk Vomiting; incontinence Impaired consciousness; sleep or stupor
0.35 - 0.50	Coma	Complete unconsciousness Depressed or abolished reflexes Subnormal body temperature Incontinence Impairment of circulation and respiration Possible death
0.45 +	Death	Death from respiratory arrest

The National Highway Traffic Safety Administration (NHTSA) includes a chart entitled "Common Signs of Alcohol Influence" is its DWI Detection and Standardized Field Sobriety Testing training manual -- the book that most law enforcement agencies use to train their officers in the administration and evaluation of police coordination exercises.

Here are the effects and behaviors at various blood alcohol concentrations per NHTSA:

.03 Slowed reactions

.05 Increased risk taking

.08 Impaired vision

.10 Poor coordination

Once again there are questions about the accuracy of Mr. Bartz' breath test. While the article notes that Mr. Bartz failed the coordination exercises administered by the police (that's a big surprise), it also states that officers found nothing out of the ordinary until they conducted the breath test.

A high breath test may be grounds for some attorneys to recommend an immediate plea because they see no way to win the case. It can also be an opportunity to turn the state's evidence and witnesses against the state and use them to your advantage.

Sleep deprivation mimics effects of intoxication

According to studies by the National Sleep Foundation and the National Highway Traffic Safety Administration, the symptoms of driving while drowsy mimic those of driving while intoxicated.

Sleepiness can have the following effects:

• Impaired judgment
• Impaired reaction time
• Impaired vision
• Problems with information processing
• Short term memory loss
• Decreased vigilance

The Texas Breath Alcohol Testing Program Operator Manual lists the following effects of alcohol on drivers:

• Impaired judgment
• Impaired psychomotor skills
• Depressed vision
• Problems with information processing

According to a NHTSA survey conducted in 2002, 37% of all drivers have nodded off or fallen asleep at least once while driving. In combating drowsiness behind the wheel:

• 26% of drivers opened a window;
• 17% of drivers drank a caffeinated beverage;
• 15% of drivers pulled off the road; and
• 14% of drivers cranked up the radio.

In the 1990's NHTSA found that there were approximately 56,000 accidents a year attributed to drowsy driving. In a 2008 national survey, the National Sleep Foundation found that only New Jersey made it a crime specifically to fall asleep behind the wheel.

The problem in using drowsy driving as a defense to a drunk driving charge, however, comes about when alcohol is involved because by admitting that your client was impaired, you might just make it easier for the prosecutor to make her case.

Driving under the influence of drugs

By now we're all aware of the effect of alcohol on our bodies. We understand that the more alcohol you consume, the more ethanol makes its way to your brain. As ethanol reaches the brain it affects the central nervous system and, from there, affects your physical abilities.

Countless studies have shown that there is a direct correlation between increasing levels of ethanol in the blood and physical impairment. This relationship is the basis of our drunk driving laws.

However, what's not so well known is the relationship between illegal or prescription drugs and physical impairment. 

Whenever a urine test or a blood test is taken as the result of an arrest for driving while intoxicated, substances other than alcohol can be detected in the specimen. Should any of these substances be detected, a driver may be looking at a DWI prosecution where the intoxication is alleged to have resulted from illegal drugs or prescription medications alone or combined with alcohol.

The problem with charging a motorist with driving while intoxicated by drug, is proving the relationship between the level of that drug detected and impairment. While the pharmacokinetics of a drug, that is, what the body does to the drug, are well-documented, the pharmacodynamics, or what the drug does to the body, are much murkier.

In general it is assumed that the higher the concentration of the drug, the greater the effect of the drug. This assumption does not, however, address the core question - whether the drug affected the driver's mental and/or physical faculties to the degree that the driver is intoxicated.

We are also left to wonder about the relationship between the concentration of the drug in the blood or urine and the concentration of the drug in the brain. For without knowing the concentration of the drug in the brain, it is impossible to know whether the detected amount could cause a driver to be intoxicated.

In fact, according to a report issued by the Virginia Institute of Forensic Sciences and Medicine, there is no statistical correlation between marijuana metabolite concentration and performance on NHTSA's standardized field sobriety test battery. Researchers were also unable to determine any per se concentration akin to a .08 alcohol concentration.

There are studies indicating the effects of marijuana on one's mental and physical faculties may last up to three hours; but traces of THC may still be in one's blood or urine more than four hours after smoking.

NHTSA conducted tests on the effects of marijuana and actual driving performance and came to the conclusion that "it is not possible to conclude anything about a driver's impairment on the basis of his/her plasma concentrations of THC...determined in a single sample." The study went on to conclude that the "[p]lasma of drivers showing substantial impairment in these studies contained by high and low THC concentrations; and, drivers with high plasma concentrations showed substantial, but also no impairment, or even some improvement."

The bottom line is that there is no level of illegal drug or prescription medication that can prove a driver was intoxicated at the time of driving. 

The driver in motion

Contrary to popular belief, most DWI arrests don't start off with bad driving behavior. 

In its brochure The Visual Detection of DWI Motorists, the National Highway Traffic Safety Administration (NHTSA) lays out 24 cues that police officers are instructed to look for in determining whether a driver might be intoxicated.

Those 24 cues are:

• Weaving (within a lane),
  
• Weaving across lane lines,
  
• Straddling a lane line,
  
• Swerving,
  
• Turning with a wide radius,
  
• Drifting,
  
• Almost striking a vehicle or other object,
  
• Stopping problems,
  
• Accelerating or decelerating for no apparent reason,
  
• Varying speed,
  
• Slow speed (10+ mph under the speed limit),
  
• Driving the wrong way on a one-way street,
  
• Slow response to traffic signals,
  
• Slow response/failure to respond to officer's signals,
  
• Stopping in lane for no apparent reason,
  
• Driving without headlights at night,
  
• Failure to signal,
  
• Following too closely,
  
• Unsafe lane change,
  
• Illegal turn,
  
• Driving off the road,
  
• Stopping inappropriately in response to officer,
  
• Inappropriate or unusual behavior, and
  
• Appearing to be impaired.
  

In my experience, most drivers are stopped either because they're speeding, have a broken headlight or taillight or they didn't signal a lane change.

Speeding, as the officer will have to concede, is not recognized as a common or reliable initial indicator of impairment. Likewise, an equipment violation has nothing to do with whether or not a motorist is intoxicated. The same goes for failure to signal lane changes; that traffic law is observed far more in the breach than in the observance.

But what do they all have in common? They are all traffic code violations, and according to Texas courts, it doesn't matter why the officer stopped you, as long as he had reason to believe that you violated a provision of the traffic code.

Brace yourself for another "No Refusal" weekend

Here's a preview of NHTSA's anti-drunk driving campaign for the holiday season.  I don't have any specific dates for when the enforcement campaign will be put in place in Texas, but rest assured there will be another "No Refusal" weekend over New Year's.

If you are stopped on suspicion of driving while intoxicated on New Year's Eve, you will be asked to submit a breath sample on the state's breath test machine.  Should you refuse, a judge will sign a warrant for a forced blood draw.  While the results of these tests can be challenged on both scientific and legal grounds, the process can be both humiliating and painful.

Warren Diepraam, the head of Harris County's Vehicular Crimes section, described the genesis of the "No Refusal" Weekend in this article published on the Texas District and County Attorney's Association website.

The question is, should you refuse the breath test if asked on a "No Refusal" Weekend?  My colleague Mark Bennett provided this advice and I can't say that I disagree with him.

My advice, as always, is the best way to avoid being arrested for driving while intoxicated is not to drive if you've been drinking.  But, if you are arrested for DWI, contact my office immediately.

HGN and hearsay

The Amarillo Court of Appeals has reversed a DWI conviction because the trial court allowed the prosecutor to introduce a letter from the American Optometric Association regarding the validity and reliability of the horizontal gaze nystagmus test. 

In Wells v. State, No. 07-07-0471-CR (Tex.App.--Amarillo, 2008), the Court held that it was reversible error for the trial court to have allowed the arresting officer to identify the letter and then to allow the prosecutor to read it into evidence.  The Court pointed out that there was nothing in the record to indicate the officer was an optometrist, a member of the AOA or had any knowledge of any test or studies that backed up the AOA's position.

Interestingly enough, the prosecutor introduced the exhibit at the end of the state's case in chief (at the end of the first day of trial) and reintroduced it during closing argument.  Defense counsel (correctly) objected on the grounds that the document was hearsay and that the defendant was being denied his right to confrontation under Crawford.

Now when the prosecutor asks the arresting officer about the so-called validation studies and the supposed accuracy of the NHTSA battery of police coordination exercises, stand up and object with the Wells opinion in your hand.

Drink. Drive. Go to Jail?

NHTSA's new DWI enforcement campaign is now underway through Labor Day and, once again, it's time to remind our fellow citizens of what the law is in Texas.

It is NOT a crime to consume alcohol and get behind the wheel of a car in Texas (unless you're a minor). The crime occurs if someone gets behind the wheel after they have lost the normal use of their mental faculties, their physical faculties or if they have an alcohol concentration of .08 or higher.

The easiest way to avoid being caught up in the DWI web is not to drive if you've consumed alcohol - call a cab, catch a ride with friends or give your keys to a designated driver. If you are going to drink and drive, you need to limit your consumption to no more than one drink an hour (the amount of alcohol your body can eliminate in an hour).

BTW, a very interesting posting from Mr. Lawrence Taylor on MADD and their drive to have interlock devices installed on all new cars.