Sober But Still “Drunk”

Tiger Woods is a phenomenal golfer – and a terrible driver. But is he a drunk driver? The law says he is, even though his blood alcohol level as measured by a Breathalzyer after his most recent crash was 0.00  – indicating he hadn’t been drinking. But he refused to pee into a cup – which the cops wanted him to do so they could check whether he wrecked because there were other drugs in his system.

We’ll never know.

The interesting thing is this situation brings up is this dirty business of requiring drivers to provide evidence that can and will be used against them in court. A violation of the 5th Amendment – the right to not be compelled to self-incriminate –  on the face of it.

Apologists will say it’s not actually required, in that you don’t have to do it. True. Technically. But if you don’t do it, then you not only get arrested but are immediately punished (in Florida, where Woods wrecked) with an automatic one-year suspension of your driving privileges – italicized to reflect the dreary fact that what used to be a right no longer is . You’ll also get slapped with a separate misdemeanor charge that, if convicted, can result in the victim being sent to jail. The word is italicized to make a point. When a person can be legally threatened with repercussions for not helping the state convict him of something, it is fair to describe him as a victim.

The state one had the burden of having to prove guilt. That is how it once was, in the days when Americans still spoke of living in a free country. One almost never hears that term said aloud anymore, except in the past tense.

What happened was a textbook example of the legal dictum that hard cases make bad law. Meaning, it is very easy to get emotional – to get angry and want something done about it – when a rip-roaring actually drunk driver blows through a red light and kills a family driving home from soccer practice. More finely, it is very hard to argue with people who are understandably emotional about the consequences of actually drunk driving. It is very difficult to explain to them that it is both unjust and dangerous to treat presumptively innocent people – remember them?  – as presumptively guilty and to punish them not because they’re “drunk” just because they refused to cooperate with the authorities trying to prove they are.

In the Before Time – when America actually was a pretty free country – it was necessary for a cop to be able to show probable cause that he had a reason for turning on his lights and pulling you over. A reason such as you driving erratically; some objective fact that indicated you might be impaired. A cop could not just pull you over just because he felt like it – at least not legally. If he did that and did not have probable cause, it’d be cause for a dismissal if the matter reached court (assuming the judge cared about the law).

This burden was to onerous for the Inspector Javert types – the “moms” who are against “drunk driving” types – for whom the thing that matters most is crime gets punished, even if it means everyone must accept being treated as a presumptive criminal.

The courts took a big dump all over the 5th and 4th Amendments, which in clear, un-nuanced English (regarding the 4th) states that there must be probable cause to engender reasonable suspicion or that a warrant must be issued by a judge prior to any search. Cops used to lack the authority to just “check” people – at random – as at “checkpoints.” The latter being a term once upon a time associated with unfree countries but not America. In America – once upon a time – people could travel without being forced to stop and prove their innocence to a cop, who also got an opportunity to “check” for any other “violations” such as out-of-date ear tags or “papers” not in order. It makes those old enough to remember this once-free country sad to remember it.

The courts invented – because it does not exist in the actual (statutory) law – this specious doctrine call implied consent. It is an Orwellian term if ever there was one, since for “consent” to have any meaning, it must be given in the absence of duress. An easy way to understand this is to mention that everyone – just about – understands that a woman must actually consent to sleep with a man; the man who forces himself on her and says that she gave her “implied consent” because she agreed to go on a date with him is guilty of sexual assault.

Never mind that. The court said that anyone who applies for a driver’s license – for permission to use the government’s roads – has given their implied consent to submit to being stopped at a “sobriety” checkpoint, without any requirement that the driver’s sobriety is in doubt and that the driver must also to submit to roadside tests that can be refused but in that case,  he is subject to be arrest anyhow and will still lose his drivcing privileges for failing to be cooperative.

Some states have taken this farther. You can be held down by goons and your blood taken by force.

Woods has been charged with DUI – even though there is no evidence he was under the “influence” of anything (and clear evidence he was not under the influence of alcohol) as well as the Kafkaesque charge of refusing to submit to a lawful test. This latter being something like the legal requirement that you have no 5th Amendment right to decline to testify against yourself every April 15th by providing everyone’s favorite three latter “service” – another Orwellian term – with a true and full accounting of your earnings and financial transactions.

Woods, like all of the rest of us, is damned if we do and damned if we don’t.

Even if we literally haven’t done anything at all.

Woods wrecked but that isn’t necessary to fall afoul of “drunk” driving rigmarole and the de facto requirement to participate in your own incrimination as via roadside gymnastics exercises that, if not performed to the satisfaction of the cop, is sufficient to demand you submit to the breath/blood/pee test – and if you refuse, off to the clink you go. If you are later found to be merely uncoordinated or just tired, rather than “drunk,” it’s not going to get you off the hook. They’ll still go after you for “refusal.”

And if you’re under 21 and there’s any alcohol at all in your system – or just an empty beer can in the car – you’re also subject to a “DUI” charge, too.

Isn’t it great to live in a free country?

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