Buzzed Driving Is... Legal

Alright, this new "Buzzed Driving is Drunk Driving" ad campaign is killing me. And I haven't even seen the first ad yet.

Actually, I have seen this photo of a billboard and I just watched the commercial which is available here from abcnews.com.

For those of you who don't want to bother to watch it, I'll give you the rundown:

The scene is a wedding reception, winding down, slow song at the end of the night. You see one young man who is obviously wasted, stumbling around, stumbling up to the stage and banging on the band's drums.

The voiceover says, "It's easy to tell when you've had way too many. But what about when you've had one too many?"

Now you see an apparently sober looking man, drinking a last gulp from his drink before he and his wife head out the door.

Finally, the voiceover says, "Buzzed Driving is Drunk Driving."

First, let me start with the personal and get it out of the way. I don't condone drunk driving, I don't drive drunk. Throughout college, my friends and I always had a designated driver or just walked home. Now, I'm lucky to live in an area where I pretty much never drive anywhere, so it's not much of an issue. But if I go somewhere and I know I'm going to have to drive, say a wedding, I would probably have only one drink, two at the most, depending on how many hours I'm going to be there. It's fair to say that I err on the side of caution when it comes to drinking and driving.

Now the legal. The point of this ad campaign, I believe, is to draw the following line of thought:

Buzzed Driving = Drunk Driving = Illegal...
Therefore, Buzzed Driving = Illegal

Which just simply isn't true. It's a clear misstatement of the law. In fact, as a defense attorney, when we voir dire in drunk driving cases, one of the things that we want to be sure that every juror understands is that it is not illegal to drink and drive, it is only illegal to drive while legally intoxicated.

So, what is the legal definition of intoxicated? Simple. And very objective. A blood alcohol level above .08 is legally intoxicated.

How drunk is .08? Well, that's the part that's kind of subjective. Different people are going to feel and function differently at .08. This BAC calculator is kind of fun to play with and gives you an idea of what your BAC. Even MADD tells us that:
To reach a .08 BAC level, a 170-pound man would have to drink approximately four drinks in one hour on an empty stomach or a 137-pound woman would have to drink approximately three drinks in one hour on an empty stomach.

That's quite a bit. But, I think the question remains, how do you feel at .08? Do you feel, "Whoa, I'm wasted!" or do you feel, "Hey, I've got a little buzz on, but I'm good to drive?"

In speaking to experts on the subject (and I mean actual PhDs, not just people who drink a lot), it really just depends on the person. Experts tell us that people who drink very frequently may be able to function quite well, even at very high BACs. Likewise, ask around and you'll find that many people have been to parties where the drinks were either very watered down or not alcoholic at all, and yet one person who didn't know this stumbled around saying, "I'm getting sooo drunk!" Are they just faking? No, experts say that a large part of how drunk we feel or act is in our heads.

Other factors, besides a person's drinking history, is how much they've had to eat, their size, the types of drinks, the time period during which they had the drinks and the time period since the last drink.

(For example, imagine someone doing four shots of tequila and then immediately getting into a car to drive just a few blocks. Science tells us that they can't yet be intoxicated - the alcohol hasn't had time to enter their bloodstream. But imagine a cat jumps out in the street, they swerve to avoid it, and hit a parked car. When the police come, they're going to smell the alcohol. And by the time you get down to the station and take the test, he's going to blow a BAC much higher that what he had at the time of the accident.)

So, why is this ad campaign driving me nuts? What's so untrue about it? It's a real under-exaggeration of the legal standard for intoxication.

Look again at the "buzzed" guy. There aren't even any other empty glasses on the table! And he didn't even finish that one drink! True, he kind of bumped into the door. Maybe he's just klutzy. Or being gentlemanly and making sure there's enough room for his wife to get through the door. I don't think there's anything to lead us to believe he's had much to drink except that one gulp we saw - and there's certainly nothing to lead us to believe he has had "one drink too many." Unless we're going along with MADD and saying that even one drink is one drink too many.

Finally, what does all of this have to do with driving? Are buzzed drivers causing accidents? In general, the answer is no.

In the cases I've seen where a DWI arrest is made for someone driving with a BAC between .08 and around .12, nearly 100% of those arrests are made as the result of a checkpoint stop. In other words, the drivers with BACs at or near .08 simply aren't drivers that are causing accidents. Instead, in most of the DWI accident cases I've seen, and there's a lot of empirical evidence to support this, the BACs are higher - usually over .12. These are clients that, even when I interview them hours later, still smell like alcohol, still have slurred speech, and often can't remember what happened.

But I understand that a cutoff needs to be set. And I even agree that it should be set on the lower side, again, erring on the side of caution and keeping in mind that alcohol effects each person differently.

My real problem is with the use of the word "buzzed," a very subjective word, that to some people may mean that first warm feeling you get from just a sip of alcohol, and to others it may mean something a lot closer to "drunk."

(Kind of like some people think "hooking up" is something along the lines of making out or fooling around or whatever, and other people think "hooking up" means actual sex. It's all just slang. It's not like you can look it up in the dictionary and see what "buzzed" or "hooking up" means.)

And it seems that maybe this commercial wants you to believe that "buzzed" could mean one drink or less. There certainly is no further explanation as to how much the "buzzed" man in the commercial has had to drink. And yet, it's being equated to drunk and illegal driving.

It's misleading and it's a misstatement of the law. Many people rely on the media to tell them the state of the laws. When a new law goes into effect, or a law is changed, people expect to hear about it on television. I'm concerned that people will mistake this advertisement for a report on the current state of the law. And, I don't want any juror who has seen this commercial or who believes it, for fear that they may substitute this advertisement's misstatement of the law for the actual law, despite the correct instructions from the judge.

26 comments:

  1. I don't think this ad campaign does either the prosecution or the defense any favors.

    By the way, I am wondering if my jurisdiciton is universal in making a BAC .03 potentially DWI? In my state, a .08 is per se DWI, but a person can be prosecuted if you can show a BAC of .03 or higher AND you can show that the alcohol impaired the person's ability to drive. Of course, the only prosecutions I've seen below .08 were for people at .07 and those people were acquitted. I only prosecuted one person at below .08 -- he was at .06 AND had some prescriptions drugs in his system, was driving all over the road, and caused an accident, and had received warnings before for not mixing his drugs with alcohol because of the effect it had on him.

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  2. When I saw this ad, I thought it was localized. Down in DC-land, one drink can get you arrested and prosecuted.

    This Washington Post article recently detailed the situation: http://www.washingtonpost.com/wp-dyn/content/article/2005/10/11/AR2005101101968.html

    But I also think that it's completely silly to be wasting time, money and effort on this sort of thing. Plus, I lived in New Orleans where I could swear I've seen cops drive drunk...

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    1. It used to be in LA that, if you had a lower BAC than the police officer who pulled you over, he had to let you go per state law. Is that still the case?

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  3. In defense of the campaign, I think the issue is perception.

    I agree that, technically, the assertion that buzzed driving = drunk driving = illegal is false. I also understand your frustration with juries. (Admittedly, I have yet to do any DUI trials personally).

    However, the problem is that many people have difficulty estimating their own level of intoxication while they are intoxicated. They may be drunk, but think that they are only buzzed.

    So the equation would look more like this:
    think you're buzzed = you're actually drunk = illegal to drive

    I think that is the point they are trying to make with the billboards, etc. and I don't have a problem with that personally.

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  4. Truly informative,well written with an edge of humor.I will look forward to revisiting your blog.

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  5. In a fascist-style police state, the law doesn't matter. The judge, persecuting attorney, police and hysteria matter. And that's what we're moving toward.

    MADD has done an excellent job of confirming that any alcohol is bad, and the police are happy to go along.

    An excellent blog for legal analysis of the subject is "DUIblog : Bad Drunk Driving Laws and the New Prohibition" at http://www.duiblog.com/.

    For what's beyond drunk/buzzed driving, look to http://gritsforbreakfast.blogspot.com/

    Maybe next year, we can try to return to an America that isn't scared to death of shadows.

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  6. In California, buzzed driving is driving under the influence. ("Drunk driving" is not the name of the crime.}

    There are two main DUI-type charges here:

    1. Driving under the influence - that is, driving without the usual mental and physical abilities of a normal driver. That'd be, "buzzed."

    2. Driving with a BA of above .08%.

    You don't need to have number two to have number one. Some people are deuced at .05. Some are deuced at .08. I don't think anyone should be driving at .08; some people are probably OK at .05.

    As to the accident increase, most studies place a substantial increase in accidents after two drinks; we don't prosecute people at .04% because a significant percentage of the population can drive safely at that level. But it does seem to increase accidents.

    Just in reading the description, it doesn't sound like they're saying one drink is too many. But for a significant part of the population, three is. Your limits aren't where you might think they are.

    --JRM, who won't drive at above .03%.

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  7. Research appears to confirm that at 0.03 your driving ability (peripheral vision, attention, reaction speed) is materially affected already. In Germany, if you are involved in an accident and test at more than 0.03 part of the blame can be assigned to you if it can be linked to how you drove and if that driving was a contributing factor in the accident.

    Fundamentally, the ad campaign is trying to make the streets safer. I generally agree with your fundamental attitude that the state please stay out of my life, but people forget too easily how much damage a couple of tons of metal can do at speed, and how the laws of physics get in the way if you're in the wrong place at the wrong speed. Driving does require some skill. Don't drink and drive.

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  8. The creators of the "Buzzed driving is drunk driving" campaign carefully chose the words to misrepresent the law; neither term is legally defined.

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  9. I truly support the belief that one drink is one too many. Several years ago I was working outside in 95 degree weather, went in the house and found one beer in the fridge and drank it. It was around noon.

    That evening about 10pm I was stopped by a State Trooper who said I was weaving. I blantently told him that I wasn't and he asked had I been drinkng.

    I stated I had one beer, and he said he could smell it on me.

    To make a long story short, I failed the eye gaze test and the field sobriety test. He said I was certainly too impaired to drive and asked to give me a field breathalyzer test on which I registered a 0.000.

    The officer was amazed but said he would let me off this time with a warning.

    I now realize that I WAS too impaired and that one beer was one to many, and have since learned that alcohol impairment last from 6 to 24 hours after it is undetectable in the blood.

    HURRAY FOR THOSE WHO ARE PUSHING FOR ZERO TOLERANCE

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    1. You are lying

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    2. You may not be lying, but you are wrong.
      Whatever your problem while driving at 10PM, it was not caused, nor was there any contribution owing to your consumption of a single beer 8 hours prior.
      Simply not possible.
      The officer is probably not lying, either, but there is no way he could actually smell your one beer on you after 8 hours. Not possible.
      The breathalyzer really says it all. There is no way your driving could be impaired by alcohol, no way for the officer to smell alcohol on you when you register 0.000 on a breathalyzer. No way.
      . . . and there is absolutely no way a beer at noon will have any effect upon you at 10PM, no way.
      Impairment from one beer (if there is such a thing) does not last from 6 to 24 hours, no way.
      You are either delusional or (I hate to say it) you are lying.

      Delete
  10. The whole point of these commercials is to remind people that even one sip or one drink has an effect on your body, much like driving when you are too tired.

    Even if you aren't entirely hammered, with one drink your reaction time slows, turning what could be a minor fender bender into a wreck that killed someone. Alcohol is a depressant-again a substance which inhibits brain function and nervous system responses.

    If the message center of your body can't work at normal pace, you shouldn't be getting behind a wheel period-whther it be because of alchol, exhaustion, or anything else.

    I think it reallys takes someone who has been hit by a drunk ir in the car with a drunk (my dad) to really have this issue hit home. When you drive, you have a responsibility not only to yourself, but everyone else on the road. As soon as you sit behind that wheel, your focus should be on being a safe driver. Too many people forget this and take it for granted until it's too late.

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  11. I wonder if the person who was working in 95 degree heat and had one beer realizes that he/she may have been suffering from heat stroke and that it wasn't the beer that caused the impairment.

    They may have also been tired because it was getting late. Once alcohol leaves your system it can no longer have an effect on you.

    There are so many myths and misinformation about alcohol and DUI laws.

    For a logical, rational perspective on how these laws have gotten ridiculously out of hand, please visit http://www.ridl.us

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    1. When MADD was established in 1980, soon others joined and in 1993 the California Vehicle Code had a new entry: "The legislature has deemed that driving is a privilege not a right."

      The insurance industry saw the money to be made here and bought off the legislature. Then they started setting up roadblocks, and it went to the supreme court where "Willy the Nazi" Rehnquist wrote "It is technically a violation of the 4th amendment as to seizure, but it is such a minor inconvenience, and we have to do something about the carnage on our hiways."


      So, thanks to MADD and Rehnquist, we now have NAZI style roadblocks from Sea to shinging Sea. More power to the U.S. Police State.

      PS. Data shows that 50% of deaths on the hiway are alcohol related, meaning that the other 50% were stone sober. Why don't we put them in jail too?

      Does anybody believe that those who have had a few drinks then drive with extra caution?

      Delete
  12. I think this campaign is trying to reach out to those people who may have a high tolerance and only think they are buzzed when in fact they are legally intoxicated. I actually teach the 12 hour OWI classes here in Iowa, and can tell you that many people had no idea that they were legally intoxicated at the time of the arrest. This is because many people use physical signs to judge their intoxication level, things like slurred speech or blurred vision, instead of mental signs. As we know from research, the higher the tolerance the larger the gap between physical and mental impairment. That means the harder it is for that person to tell that they are in fact intoxicated.

    Have you ever been sober around people who have been drinking? They often think they are less intoxicated than they really are.

    The fact is 30% of American drinkers consume 90% of all the alcohol consumed in the United States. Start looking at the alcohol ads and you will see they are targeted to this population. 70% of us, however, are not drinking in this way and are not the target of this campaign, just as we are not the targets of the alcohol industry.

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  13. driving and drinkingDecember 31, 2008 12:06 AM

    I'm from Ohio. Here they are using a picture of a man in traction saying "buzzed" driving = drunk driving. Traditionally I have been referring people to a publication called "Ohio Traffic Crash facts" that was available online for free, but as I write this I was going to provide a link but the site was updated and this report is request only. My point is, if you could look at this report, you would see that Ohio statistics show that more than 95% of traffic crashes and 92% of injuries and 2/3rds of fatalities are NOT! alcohol related. This means that sober driving = buzzed driving = drunk driving. It's driving that causes injury, the overwhelming majority are sober-related. I was drawn into this issue when I was convicted of walking my bicycle across my front yard. Ohio law includes bicycles. lawn mowers, and golf carts even on your own property. I've had the ODPS do some customized data reports and I have posted them on my website: http://drivinganddrinking.org

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  14. I'm sorry to chime in again but, as this a legal blog I wanted to make sure that everybody could look up the Common Law phrase; Nulla poena sine lege This means that you can't be punished unless there is a law against it. If you are under .08% BAC you are in compliance with the law and therefore immune from prosecution, at least in a perfect world.

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  15. This is quite an old thread. I am always amused by the tangential arguments a blog post receives.
    The aim of the ad campaign "Driving buzzed is driving drunk." is very clear. It's not about the legality of drunk driving, or that one drink may impair you.
    It's about the subjective notion of the drinker thinking that unless he is in a state of stumbling, bumbling, "can"t put keys in the ignition" then he is just Buzzed.
    In other words, don't call your self buzzed, when you are really drunk. It happens alot...... people behind the wheel of a car when they shouldn't be.

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  16. These ads are running in Texas again. While I do agree they're misleading and driven by alcohol hysteria, perhaps they are right to make people paranoid about driving after drinking -- not paranoid about causing accidents, but about getting arrested. People in Texas are arrested all the time who later prove to have a BAC under .08. They are not immediately let go, as some people might assume. They can still be prosecuted if the prosecutor wants to argue that the driver was "impaired" in spite of having only a couple of drinks. Even if the charges are dismissed (which happens rarely in Texas once an arrest is made; most people faced with a trial would plead out), the driver will still spend the night in jail.

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  17. It was very interesting for me to read that blog. Thanx for it. I like such themes and everything connected to them. I would like to read more soon.

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  18. Keep on posting such stories. I love to read articles like that. Just add more pics :)

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  19. First off...what the funk is 'buzzed' driving? Secondly, it's clearly not illegal unless buzzed means 'on drugs' (which it apparently doesn't, but sounds like it does). Thiiirldy, what a fat waste of money....

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  20. In 2005 someone here referred to a coming fascist-style police state. Do I now hear a droll "honey, I czar'ed up the cabinet!" echoing in the White House?

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  21. I have seen first hand what misinformation can do. I was convicted of felony dui with a BAC of 0.06, no field sobriety test, and with the prosecution using a method called retrograde extrapolation to supposedly figure out a higher BAC of .15. Having worked as a chemist, I knew their method of testing without actual tests was fraudulent. Due to claims that I could've hurt countless people, I received 10 years. So much for the justice system.

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  22. There is no fool-proof way of drinking and staying under the limit. The amount of alcohol you would need to drink to be considered over the driving limit varies from person to person.

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