I am sure this will surprise everyone, but I am actually arguing in favor of the lawyers who say the breathalizer is racist. Well, not really, but they do have a point. There are physiological differences on average between blacks and whites, and if we are going to have a precise definition of intoxicated (no matter how arbitrary), we should take into account those differences. On the other hand, since lung capacity varies form individual to individual, we should take that into account as well. And since individual tolerance for alcohol varies...

Well, that brings me back to my real position. That we should not have an arbitrary physical limit to determine inebriation.

As I am sure many are beginning to think I am going off on one of my "excessive" rants, bear with me, and let me explain.

Yes, you are right, ideally I would not allow preventative laws, such as our drunk driving ordinances, which punish in an attempt to prevent people form doing harm, rather than punishing after the people do harm. When you think about it, the assumption behind drunk driving laws, you are more likely to hurt someone if you drive when drunk, is the same logic behind gun control laws, you are more likely to hurt someone if you have a gun. The only real difference is that people recognize no "good reason" to drive drunk, while they argue "good reasons" to have guns. (On the other hand, I argue I don't need a reason to have a gun,t he government needs one to keep it form me. So my logic is different anyway.)

But, I am not going to argue that point, as I doubt even one reader would agree with me. So, instead, allow me to argue that our arbitrary (and shifting) numeric limits on alcohol are misguided. Perhaps it is because I know a few alcoholics who I wouldn't trust to drive with a blood alcohol BELOW 0.01, or becaus emy mother is absolutely wasted after a single glass of wine, but I have always found the arbitrary cut offs absolutely bizarre.

Actually, the law agrees with me, at least the law I know in Maryland. You see, the alw doesn't actually make driving drunk illegal. What it says is that it is a crime to drive in a negligent manner while intoxicated. However, subsequent legislatures, concerned that may be hard to prove, decided to modify the law to state that a blood alcohol of X creates a presumption of negligence. Thus, the law effectively makes it illegal to drive with a blood alcohol of X. (It also makes it easier for trial lawyers to prove negligence when dealing with drunk drivers, but I doubt that was a concern for legislators. After all, what legislator would do something to make life easier for trial lawyers?)

My argument is that the initial law is fine, if we must have one. Leave the law at "negligent". Instea dof blood tests or breathalizers, just stick with the field sobriety tests or other evidence of negligence (weaving, stumbling, slurring words, falling over, etc.). That would actually make the law fair.

Fair?

Yes, fair. You see right now the law is both too strict and too lenient. There are individuals who can have twice the legal blood alcohol content and function normally. I know I am supposed to say "that's not true" to be PC, but the fact is chronic alcoholics, like any addict, develop a tolerance to alcohol and just don't feel the effects as easily as those who drink normally. And, on the other side of the coin, there are people who can be "sober" using the blood alcohol limits, yet be in no condition to operate a motor vehicle. And by relying on an arbitrary numeric constant, we miss both groups*.

I know it would make more work for the police, and would cause some congestion in the courts, but that cannot be a consideration. After all, if we assumed guilty until proven innocent it would make the courts run faster and make the life of police easier, but we don't do that.

So, I would argue, if we must have a law prohibiting drunk driving, we need to make sure it does that, rather than preventing driving at a certain BAC. And that is what my change would do. Those who are incompetent even below the current BAC would end up arrested, and those who are effectively sober even far above the BAC limit would not face jail time for driving competently but in violation of an arbitrary physiological limit**.

I know many will disagree with me (for that matter, on this one I think my wife even disagrees with me, though that is not unusual with my more extreme views), but that is what comments are for.

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* Technically, police can still arrest those not meeting the BAC numbers if they seem inebriated, and they can try to prove negligence in other ways, but since we have come to rely so strongly on BAC, all the accused needs to do is ask for a jury trial and the jury, being used to BAC constituting proof, will tend to throw it out. Often, even that is not needed, as once the accused's BAC is established to be below the limit, charges are often dropped.

** That is actually one of the biggest problems with the law. I know the proponents say "you don't have to feel drunk to be drunk", but in truth, anyone who drinks knows that they can tell when their reactions are off. And that is what people sue to judge when they can and cannot drive. However, for some people, that is a poor guide. Due to habitual drinking, or even simply physiological differences, many people feel sober, and have the same reaction times as usual, while being "legally drunk". However, I have to ask, what do we benefit by taking them off the streets and fining or jailing them? They are effectively sober,  and no more likely to do harm than a sober person, so what is the benefit? For that matter, if it proves the person's response time is down due to sleepiness, why not arrest them as well? Why is drunkenness alone a cause for arrest? Don't the other causes produce just as much risk of harm?

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POSTSCRIPT

Actually, I have always wondered why no one else worries about people who, while perfectly sober, fail the field sobriety tests? I knew at least two people who failed the sobriety test, then were released when their BAC proved to be almost 0. Yet, should they have been? If their coordination is that bad, should they be driving? Even if they are totally sober, do you want someone on the road who fails the sobriety check? If our goal is safety, shouldn't they be fined first, before we go after people who pass sobriety checks over and over but have a BAC of 0.10?

Then again, in some ways, this has become a moral crusade rather than one for safety. Yes, they invoke safety, but the fact that it has moved from coordination tests to arbitrary physiological measures, and ever decreasing ones at that argues this has gone beyond concern for safety and become more of a modern temperance movement of sorts.

But, as I said, I expect at least one reader to object, so I will save the rest of my argument for my replies.

POSTSCRIPT II

I originally noticed the article which inspired all this on Overlawyered.com. Thought I should give them a plug, as they are a great site, as is sister site Point of Law.