An old pal of mine, Bob Cosgrove, sends the following in response to my earlier posting about people who drink and then get behind the wheel of an automobile…
When I was a law student, I took a course in "trial practice." One day, my professor called with an unusual request — could I show up at his office a few hours before class and have some scotchs? The evening's lesson was cross-examining an expert witness, in this case, a breathalyzer operator. I did my part and continued to drink right through class (probably the only time the "defendant" was ever identified in court as "the guy over there sipping scotch"). I'd downed about three glasses in the course of a few hours, then took the test. I weighed in at about 190 at the time, and blew a .06. At the time, a jury could have convicted me with that number, but in order to infer, based solely on my BT score, that I was under the influence, I would have had to blow a .10. I took the subway home a few hours later, and by the time I got back to my car, was sober. But I never would have driven feeling as I felt with the "low" score of .06. My class experience made me the last person a defense attorney would want on a jury.
At the time, I had no particular thought of going into criminal law. Later, as a prosecutor, I must have tried around a hundred or more OUI cases. With respect, I think you have a layman's conception of how to deal with "drunk drivers." (Or — forgive me — a politician's). A side note: most states, perhaps all states, and I suspect your own state, don't require that a defendant be "drunk" — merely that the defendant's ability to drive be impaired, or alternatively, that the blood alcohol be over a certain level. So "drunk driving" is something of a misnomer.
Most people are all for toughening "drunk" driving laws. Throw the book at them! Look at what might have happened — someone might have been killed. Then they get into court, and on a journey. There's the defendant, in his suit and tie, looking quite different from the obnoxious loudmouth the cops describe. (And there's the cops — looking pretty much like they did that time they pulled you over, even though you were only going a few miles over the speed limit when you went through that light that really was yellow when you first started through). Sitting behind the defendant are his wife and adorable three kids. Suddenly, the hypothetical "victims" whose lives the drunk driver may have claimed fade into pale, forgotten abstractions. You won't hear that the defendant refused to take a breathalyzer, because you can't tell a jury that (at least in my state). (That, by the way, is why I, unlike most prosecutors, always liked to have people who had been convicted of "drunk driving" on my juries, at least when they had pled guilty — they all knew exactly what it meant when they heard nothing about any breath test: the defendant had refused to take it because he thought it would show he was intoxicated). The jurors have heard about the new tough penalties — they know if they convict, the defendant is going to have to pony up a few thousand for an alcohol rehabilitation program, pay fines and probation fees, lose his license — by the way, defense counsel has slipped in that he's a truck driver, and his livelihood depends on that license — and perhaps do some jail time. All because he had one drink too many at a party and slipped up for the first time in his life. (They won't find out that this is his third arrest for "drunk" driving — the previous two, by the way, resulted in "not guilty" findings). There, half the jury will be thinking, but for the grace of God go I. In some ways, it's easier to convict someone of murder than drunk driving. Nobody's sitting in the jury box thinking, "Gee, if they had caught me chopping up my wife with an ax, that could be me there."
The high penalties will also scare the hell out of the defendant. He'll pay the high fees necessary to get a good lawyer, and tell that lawyer to fight like hell. The defense bar's continued opposition to increased drunk driving penalties is a tribute to their integrity; every jacking up of the penalties ought to be called the "Defense Attorney Employment Act of (year)."
Do you really want to give some guy with one too many drinks a year in jail? I'd be surprised if the first break-in to a home in your state typically gets a year — but we should do it for OUI (as it's called in my state: DWI most other places)?
My own preference would be for a change in the rules of evidence that would put more information before juries and make it easier to convict — and at the same time to lower the penalties for first offenses, also to encourage easier convictions that would put the defendants in line for treatment for alcohol problems. Raising the penalties sounds tough — and no doubt it is tough — on the increasingly smaller percentage of those found guilty of the crime.
Yeah, I'm not proud of it but I do think I want to give some guy with one too many drinks a year in jail…or maybe a lesser sentence that still involves staring at metal bars. The fact that the penalty for a first break-in may be too low isn't a rationale for eliminating the penalty for some other crime.
I understand what you're saying about how difficult it is to get a conviction and I agree with you about changing the rules of evidence to include some of the things you say are excluded. I also understand what you're saying about juries identifying with a defendant and feeling compassion towards him…and I think that's just the nature of the jury system. Which is why I made reference to a "mandatory sentence." Maybe that would prompt a few more jurors to say, "Hey, the guy drove drunk. I don't like sending him to the slammer but the law's the law."
Obviously, I'm looking at this less as a matter of properly punishing drunk drivers than I am as establishing a more solid deterrent. I do think there's a value to that kind of punishment. You're correct, I'm sure, that jurors don't identify with ax murderers…but this is the kind of crime that too many people think isn't one. They need to be reminded and I think stronger sentences could do wonders. I've had a few friends who really screwed up their own lives with alcohol abuse — by driving while tipsy or otherwise — and it's been my experience that they serve as good bad examples. Hearing about the disasters they bring on themselves does a lot to discourage others from making the same mistakes. Maybe it's naïve of me but I think learning that an acquaintance did hard time for driving drunk would go a long way towards preventing most folks from committing the same sin.
Thanks for taking the time to write all that out, Bob. Nice to hear from someone who's in the middle of the problem.