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DWI: A common crime, an out-of-control industry

In the late 1970s, it became apparent to people not just in the United States but in other parts of the world that too many people were dying on the roads as a result of drunk driving.  Because the United States is such a large country and most people rely upon their cars to travel even short distances, these DWI deaths were more frequent in the U.S.

At the same time, national organizations, including Mothers Against Drunk Driving (MADD) were founded.  MADD was founded by the mother of a 13-year-old Texas girl who had been killed by a drunk driver.  Other organizations, including SADD, soon followed.  But MADD was the most powerful, helping to lobby for extensive new laws that would lower limits on the amount of alcohol someone could have in his system while still driving legally.

This BAC (Blood Alcohol Concentration) is set by the states, but is the same across the United States because of a federal highway law which limits the amount of highway funding a state can receive if it does not agree to a .08 BAC.  In North Carolina, the number is expressed in the law as the volume of alcohol per volume of exhaled breath.

Before the 1970s, the amount of permitted alcohol in the system was fairly high – .15 in some states.  But in the 1970s and 1980s, states started to lower the BAC permitted.  By the 1980s, most states had lowered the limit to .10, which is where it stayed until the 1990s, when states, pressured by the federal government, lowered the limit to .08.

Today, in North Carolina (and in all states) it is a “per se” violation of the law to drive with a BAC of .08 or above.  By “per se,” the State says that all it has to prove is that the person had a .08 BAC at a relevant time after driving on a highway or public vehicular area in order to find someone guilty of a DWI. This means that the state does not necessarily have to prove the person was driving badly.  The .08 is enough.

The Court of Appeals has recently held in North Carolina that a jury is not required to convict on a .08.  In other words, if evidence of a .08 (or .10 or .15 or whatever number) comes into court, but a jury thinks that the person was not the driver, or that there was too much delay in testing the person, or that the reading was an error, the jury can find the person “not guilty.”

So while a .08 is a per se violation of the law, the .08 does not require conviction.  (That may not make sense to a non-lawyer, but that’s how the legal world functions.)

If you go to and search for the term DWI on any given day, you’re liable to find thousands of news stories about various people who have been stopped and arrested for a DWI.  That’s because DWIs are far and above the most common serious crime in the United States.  They are common because they are the kinds of crimes that people commit without thinking about committing a crime.  They are serious because in most states, including North Carolina, the first offense is a crime.  And the first offense, if it results is a conviction, means the suspension of a license for a year, a criminal record, fines, community service, and in certain circumstances, jail.

In fact, the maximum jail sentence in North Carolina for a DWI is two years.  Most first time DWI defendants are not going to receive any jail time.  But, even where jail time is not a possibility, the other penalties, including the one-year revoked license, are expensive and unpleasant.

In addition, certain DWIs are punished even more harshly.  For instance, if you blew a .15 or above and if that number is admitted into court (a technical process involving verification of the number, your rights, and the proper functioning of the Intox EC/IR II machine), your license will be suspended for 1 year, and during that year you will have to have an Interlock device in the car.

I’ve described the DWI as a “common crime” but how has the DWI created an out-of-control industry?

In other countries, there are no-tolerance rules.  If you’re caught driving with any amount of alcohol in your system, you’re going to be convicted of a DWI.  But in the United States, we’ve created a hybrid system where you can legally drive with some alcohol in your system, but not “too much.”

In order to measure whether someone has driven with “too much” alcohol in his system, a whole industry – makers of the machines, including the Intoxmeter, the Intox EC/IR, the Alcosensor, and so forth – form a multibillion dollar economy to supply police agencies with these machines.

In addition, the criminal justice system itself extracts hefty fines upon conviction, other companies provide “substance abuse assessments” and treatment programs at high cost, and training companies have formed that train police officers, prosecutors, and even defense attorneys, like your humble writer, in how to either convict, or defend people against DWI charges.  These cost money as well.

Instead of simply out-lawing drunk driving completely, the United States has chosen a hybrid system, which I would argue is much more expensive, and less safe.



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