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In 1966, I was driving back from my port leave before my scheduled year of vacation in sunny Vietnam when I met a drunken driver proceeding up the Interstate in the wrong direction.  He died on the spot.  I spent seven months in a military hospital and suffered injuries that affect my life to this day.

In 1981, I called my 7 year old son's best friend to see if I should swing by and get him so the boys could hit soccer practice early.  A family friend answered the phone and I soon found myself in the uncomfortable position of telling Paul that Gabe would not be coming to soccer practice, then or ever, as a result of an encounter with a drunken driver.

It's not true that having your life touched---make that clobbered---by a particular offense, renders you unable to fairly determine whether somebody in fact committed that offense.  

Oh, sometimes the emotions take over temporarily.  I had to go to the local judges after I had to try a particularly horrible child abuse case and asked to be excused from those kinds of cases for a while.  It was not a problem.  While you never "get over it," you do get some distance.

When I was elected to a court that heard drunk driving cases, I was not looking for revenge but to change things.

Why, you may ask, did I not float the proposal in the op-ed below from Indian Country Today to the Texas Legislature?  I did, twice.  Both years, they laughed me out of the hearing room.

Few of us have been unscathed by alcohol, and I am no exception.  A close Cherokee relative, big-hearted and kind when sober, was a mean drunk who finally ended his life in a drunken header off a bridge.  When my son was seven, I had to tell him a drunken driver had killed his best soccer buddy.  Another drunken driver cost me seven months in a hospital and injuries that affect my daily life almost fifty years later.

I am one of the lucky ones who can take booze or leave it, so the only moral issue is that I leave it when with someone I know is not so lucky.  Not being a drunk does not make me feel superior, since I know it only means I’ve won a genetic lottery.

State legislatures and tribal councils come under pressure whenever there are particularly gruesome deaths, usually of children.  The number of drunken driving deaths per capita by state fluctuates, but most of Indian Country stays consistently above the median.  We worry over it, and we have good reason to worry.

When I first became a county level judge in Texas, my docket was driven by drunken driving cases.  By the time I left, it was driven by domestic violence cases, but alcohol often reared its ugly head there as well.

I came to understand the impulses behind alcohol prohibition, and if prohibition were practically possible I would cheerfully give up the beer that goes with football and the tequila that goes with poker.

It’s not practically possible to ban alcohol, and it’s particularly not possible for reservation communities.  Any attempt gets you a highway of death between the rez and the nearest legal booze and a bootlegging class that can sometimes make more money than the tribal cops.  This is not unlike what happened to the US, where alcohol prohibition turned the Mafia from a few street thugs confined to immigrant neighborhoods to a wealthy national syndicate.

The criminal justice system cannot fix the alcohol problem with more punishment.  A drunk quits when the necessity to quit is imposed by family and friends.

So what about all those drunken driving casualties?  How can we minimize the body count?  Smartly.

We can manipulate the time more drunks are on the street by mandating closing hours.  If closing time is midnight, the roads get more deadly until about 2 am.  If the closing time is 2 am, you move the surge of drunk drivers later.  

We can manipulate where by controlling the placement of drinking establishments.

Manipulation of time and place makes life easier for the cops, but it does not protect from a drunk at the crack of dawn nowhere near a bar.  Hard core drunks do not respond reliably to regulation of time and place.

You cannot stop drunken drivers by putting them in jail.  They are going to get out.  I have seen drunken drivers do it again after serious prison sentences.  It’s not like they do it on purpose.  Part of the pain of a hangover is the self-loathing and the promise to yourself never to do it again…just like last time.

You cannot stop drunken drivers by fining them.  If they have the money, they will pay and pay again.  If they don’t have the money they can’t pay but they will impoverish their family in the attempt.

You cannot stop drunken drivers by taking away their licenses.  They simply keep driving, and a tribal court usually has no jurisdiction to revoke a state license.  While a tribe has the power to require a license of reservation residents, the only result of taking it away would be that the tribal cops could stop a repeater on sight and they could get a list of all the residents not allowed to drive.

You cannot stop drunken drivers by requiring ignition interlocks, but you can enrich the companies that make the interlocks.

The state of New Mexico considered a bill to ban convicted drunken drivers from buying alcohol.  It works so well to keep teenagers from drinking, right?

I used to order people I put on probation for drunken driving to “consume no alcoholic beverages.”  This was not because I thought they would not drink, but rather so I could revoke their probation for mere consumption.  It’s easier to prove that a person had a drink than to prove she committed the crime of public intoxication while on probation.

Here’s something tribal governments can do that state governments have not had the will to do.  Instead of taking away the booze, take away the other property necessary to commit the offense, the vehicle.  Starting with the second offense, any vehicle—even if rented or borrowed—is forfeited to the tribe.  

First offense would be unfair, even though first offenders can kill you just as dead, because no amount of preaching can teach that if you have a buzz on, you’ve had too much to be driving.  If a first offense can’t teach you, you’re a hazard.

What about the innocent spouse?  Auction the vehicle, pay off the loan, and give the spouse half of what’s left.

What about non-Indian repeat drunken drivers?  Tribal courts cannot entertain criminal sanctions of non-Indians generally outside of the Violence Against Women Act, but this is a civil forfeiture.  Tribal courts can consider prior drunken driving convictions in state courts.

There’s no practical limit to the number of bottles of beer a drunk can acquire.  I bet there’s a limit to how many vehicles.

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Comment Preferences

  •  I believe that the people you've described... (2+ / 0-)
    Recommended by:
    marykk, indubitably

    ....that is, incorrigible drunks who keep driving drunk even after their licenses have been revoked, are responsible for the majority of the catastrophic incidents that caused the country to spasm it's way to increasingly punitive drunk-driving laws, to the point where a 105-lb person could blow "illegal" after having a shot of liquor waved around in front of them.

    As usual, a handful of truly egregious offenders have generated events that have been responded to in ways that don't do much about the people who are essentially uncontrollable unless you lock them up for life, but have weighed heavily upon people who haven't caused the problem.

    I think bars ought to be required to have a breathalizer on the premises.

    "Ronald Reagan is DEAD! His policies live on but we're doing something about THAT!"

    by leftykook on Sun Jul 14, 2013 at 06:20:55 AM PDT

    •  Can't speak for other judges, but (4+ / 0-)
      Recommended by:
      marykk, leftykook, PeterHug, indubitably

      I personally have never, ever convicted somebody of DWI because of what they "blew."

      That said, most people are impaired at .05 in the blood and virtually everybody is impaired at .08.

      The bottom line is something people don't want to hear: if you can tell you have been drinking (not if other people can tell), you've had too much to drive.

      By the time other people can tell, you are way gone...

      This would mean that I've acquitted some guilty people, but that's the way our system works.  We are supposed to err on the side of acquitting the guilty rather than convicting the innocent.

      •  I thought that it was pretty cut and dried... (1+ / 0-)
        Recommended by:
        indubitably

        ...that either "blowing" a measured concentration or having a blood-test measured concentration of BA essentially equalled "You are guilty"...

        Perhaps that's a matter of differences between different states.

        As far as I know, in California, at least, if you register above the legal limit, you are regarded as being in violation, and I thought that the judges don't have a lot of discretion about how they rule in such matters...

        Then again, I've been Fulla Crap before, so....

        "Ronald Reagan is DEAD! His policies live on but we're doing something about THAT!"

        by leftykook on Sun Jul 14, 2013 at 07:32:50 AM PDT

        [ Parent ]

        •  What is cut and dried (4+ / 0-)

          is proof of BLOOD alcohol concentration in excess of the limit beyond a reasonable doubt by lawfully obtained evidence.

          I do not think testing of BREATH can yield concentration in the BLOOD beyond a reasonable doubt.  Henry's Law has too much slack.  It's extremely sensitive to temperature, electrolytes in the blood and (this one affects me) if you have food particles caught in your dentures, blowing into the machine is like blowing over a sponge containing alcohol when what you are supposed to be testing is deep lung air.

          I should add that my conviction rate is pretty similar to other courts.  I just don't take the breath test seriously enough to hang a conviction on it.

  •  No cars means no drunk driving. Of course (2+ / 0-)
    Recommended by:
    Joy of Fishes, indubitably

    You need reliable transportation for work, get the kids to practice. And it isn't a solution forever. Living within walking distance of all you need is probably the best life choice.

    •  Particularly here in Texas, (4+ / 0-)

      where there is no public transportation worthy of the name outside of a couple of light rail systems it costs big bucks to live near, you are right that having no vehicle is a terrible inconvenience.

      So is having lost a breadwinner to drunken driving, whether to jail or to death.

      In the great scheme of things, I am advocating terrible inconvenience while others advocate the old lock them up and throw away the key.

  •  Interesting discussion (3+ / 0-)
    Recommended by:
    marykk, tommymet, indubitably

    The thing is, I immediately thought of Idaho, where drunk driving has plummeted. In fact, in Twin Falls, where I live now, drunk driving numbers are so low that that city wants to lower the acceptable BAC to .05 instead of .08. There just aren't enough drunk drivers to keep them in business anymore.

    At the same time, negligent driving (i.e. texting while driving) has skyrocketed. But no one demonizes that the way they demonize drunk drivers, even though they're equally deadly.

    Obviously these things vary by region, but to me it seems like instead of this continued focus on drunk driving, we should instead deal with the current threat.

    P.S. I am not a crackpot.

    by BoiseBlue on Sun Jul 14, 2013 at 06:35:26 AM PDT

  •  Works for me. Thanks. nt (1+ / 0-)
    Recommended by:
    indubitably

    Dwell on the beauty of life. ~ Marcus Aurelius

    by Joy of Fishes on Sun Jul 14, 2013 at 06:43:54 AM PDT

  •  Oh gosh, where to start (1+ / 0-)
    Recommended by:
    tommymet

    DUI is a double edged sword, and both edges are utterly destructive. From the driving side, it is deadly. People die. I wonder if it's as deadly as distracted driving, but that, perhaps, is a different conversation.

    On the other hand, drunk driving is a huge money maker for government and police officers, creating terrible incentives. Money should never be the incentive behind law enforcement.  Right now, police can double or triple their salaries by working the 11p-7a shift and "specializing" in pulling over drunk drivers. With court scheduled 2 hours or less from end of shift, they get overtime to go to the courthouse to wait for a hearing. They sit downstairs, in the cafeteria, and drink coffee. The arraignment cattle call is a couple more hours, so altogether, they work an 8 hour shift plus 4 hours overtime, the latter for winding down after work.  They're on with their usual day by 10 am (automatics credit for 2 or 3 hours per court appearance, no matter when they leave). Add a new civil forfeiture, which already leads to some of the most heinous abuses by government, and you have a recipe for remarkable abuse, particularly to those who can afford it least. Civil forfeiture is particularly abusive, because the lower standard, preponderance of the evidence instead of beyond a reasonable doubt, means somebody can lose their property after a "not guilty" verdict. In my opinion, more civil forfeiture is NEVER the solution, and the entire concept should be scratches.

    Also, it would be an economic death sentence for entire families. This is not a country in which the poor can live without a car. There are very few places with any public transportation, and with the prevailing anti-tax mindset, even that is losing subsidies and getting more expensive every day.

    Drunk driving is a crime and a tragedy. It is one of the few crime/tragedy combinations with a great lobbying group (MADD), which is the only reason we even consider penalties that, for any other crime, would think unnecessary.  

    Also, how would is work? Would this new law also forfeit the wife's car, the kid's car, the cousins', and uncles', and neighbors' cars? The premise here is that these drivers don't obey the laws barring their driving. So why believe they would obey this one? And by what right can the government forfeit the car of everybody living within walking distance of the offender?

    Done with politics for the night? Have a nice glass of wine with Palate Press: The online wine magazine.

    by dhonig on Sun Jul 14, 2013 at 07:11:28 AM PDT

    •  Anybody's car, (1+ / 0-)
      Recommended by:
      indubitably

      including Mr. Hertz or Mr. Avis.

      I would not support it as a civil forfeiture in state law, but rather as a criminal sanction upon conviction of a second offense.  Tribal governments have no choice.  The have to go with the civil forfeiture, thanks to the SCOTUS.

      If cops need to be present at arraignment, you have an un-necessary appearance built into your local system and you need to change that rather than try to build the country's system around your local shortcomings.

      •  You don't answer the question (0+ / 0-)

        Sure, you can make it illegal for the convicted driver to rent a car, but the premise is that the driver won't obey the law. Are you going to close down Avis and Hertz?  

        As for arraignments, the same game is played for trials, also a cattle call, with repeated continuances. And it's a game played across the country, not just locally. Sorry, but forfeiture => abuse by the government. The nicer the property, the more abusive. Like the car? He was "swerving within his lane." Sorry looking car driven by a minority person, somebody who likely couldn't afford to buy another one, who will have his ice destroyed by two weeks without a car? He TOTALLY failed the roadsides ... Pity there isn't video, just take the officer's word for it. Brow people is a white suburb after dark? That lane change without a signal is enough for a stop, and was that an accent, it was she surfing her words?

        Turn DUI into a profit center, and you will see abuse.

        Done with politics for the night? Have a nice glass of wine with Palate Press: The online wine magazine.

        by dhonig on Sun Jul 14, 2013 at 07:51:55 AM PDT

        [ Parent ]

        •  Huh? (2+ / 0-)
          Recommended by:
          Darwinian Detrius, indubitably

          I thought the question was "Whose car?" and that's the one I answered.

          Do you seriously believe rental agencies will ever lose more than one car?

          Do you seriously believe families cannot agree on a designated driver/owner?

          Do you seriously believe DWI is not a profit center right now for alcohol counseling services, useless ignition interlocks, etc.?

          Your critique seems to me to apply to the whole idea of using law to shape behavior, since you are against both civil forfeitures and criminal prosecutions.

          I take it you either don't think drunken driving is a problem or would abandon the roads to the drunks so as not to inconvenience them?

          I am aware that some courts play the continuance conjunto.  Mine did not.  You should not tolerate it, but not tolerating it requires paying attention to what happens in the courthouse when the cameras are not looking.

          •  Don't go overboard (0+ / 0-)

            if you act like this from the bench, I'm glad I never appear in front of you. Because I disagree with A, I'm automatically in favor of B? Absurd. Where, oh where, do I even imply I'm against criminal prosecutions? That's mind-fucking to the nth degree, all in knee-jerk defense of your proposal.

            As for your responses, you clearly did not understand what I wrote (or, perhaps, what you wrote).

            Take away A's car. Remember, your premise is A won't obey the law. He won't obey a license suspension or an ignition lock. So what stops him from taking his wife's car, his kid's car, his cousin's car? That was my question. You didn't answer it. Sure, you can take the car being driven at the time the driver was intoxication, but forfeiting that car no more stops him from driving than taking away his license.

            As for this absurdity:

            I take it you either don't think drunken driving is a problem or would abandon the roads to the drunks so as not to inconvenience them?
            ... I write it down as a petulant tantrum because Daily Kos didn't genuflect to your wisdom and run naked through the streets yelling "Eureka!" You don't present yourself here as merely another Kossack, but as a jurist. And as a jurist, you should be ashamed of yourself.

            Done with politics for the night? Have a nice glass of wine with Palate Press: The online wine magazine.

            by dhonig on Sun Jul 14, 2013 at 02:23:43 PM PDT

            [ Parent ]

            •  Your critique applied to criminal prosecutions (0+ / 0-)

              generally, so you sounded opposed.

              I thought in my original diary I explain why each criminal sanction does not work.  I proposed to add one on the criminal side, but since I was speaking to tribal courts originally, it was necessary to speak in terms of civil forfeiture.

              If you think one of the criminal sanctions currently in use in fact does work, then my diary is sheer crackpottery.  I would be interested if you would refer me to this jurisdiction where the criminal sanctions are working so I could be instructed how to do it properly?

              In my paltry experience, what we do with first offenders works fine.  They essentially need to understand what little alcohol it takes to be impaired.  Once they understand, they won't do it again.

              I can only hope that the price of their education is something less than serious bodily injury.

              I speak to those for whom what we do on first offense does not work.  If they don't exist in your jurisdiction, I'm speaking to a nonexistent problem.

              What keeps them from borrowing car after car?  Either their friends catch on or they run out of cars.  Since you are liable for the damages in lending your car to a drunk anyway, what's the big deal in taking your car away?  Seems like a lesser bad outcome.

              The purpose, of course, is not to confiscate cars.  The purpose is to create a culture where allowing a drunk behind the wheel is unthinkable, not worth the risk, because you know somebody who knows somebody whose uncle's best friend lost a brand new Corvette.

              Of course, that story would be a bit nonsensical.  The car would be sold and most of the money would go to the bank.  Half of what is left would go to the innocent spouse, if there were an innocent spouse.

              However, dealing with it would be a nightmare.  More hassle than any rational person would take on.

              It ought to be a big hassle to get caught lending your car to a drunken driver.  There also should be shame involved.

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