Saturday, August 02, 2014

Popped Culture

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Arizona boasts some of the toughest DUI laws in the nation. But how tough is too tough?
Beverly Mason Biggers has a good reason – the most personal of reasons, in fact – for devoting herself to the fight against drunk driving: After sucking down a dozen margaritas one evening in 1992, an inebriated driver climbed into his car and killed her brother on a Tucson roadway. She generously acknowledges that the tragedy devastated not only her family, but the driver and his family, too.>
“In the case of the man who killed my brother, he woke up not knowing what he did,” says Biggers, program specialist for the Arizona chapter of Mothers Against Drunk Driving (MADD).

“Unfortunately, he lost 12 years of his life in prison. My family lost a son and brother. We’re all victims.”

Thanks to pro-sober-driving activists such as Biggers, Arizonans of today are less likely to suffer the anguish that she and her family were forced to endure 20 years ago. Over the past two decades, activists have successfully bolstered DUI laws across the United States. And they proudly take credit for plummeting accident and vehicular death rates. In Arizona, fatal accident rates plunged 62 percent between 2000 and 2009, according to the U.S. National Highway Traffic Safety Administration (NHTSA). Biggers ascribes these encouraging trends to the advent of “ignition interlock devices and high-visibility law enforcement techniques” such as sobriety checkpoints – both aggressive anti-DUI measures for which MADD continues to lobby vigorously.

Getting dangerously-impaired drivers off the road is a cause that everybody – from MADD activists to barkeeps to criminal defense attorneys – can get behind. But as the zero-tolerance movement grows, and as DUI laws stiffen to remarkable extremes, doubts arise. Some Arizonans wonder how much of the impetus behind ever-harsher DUI penalties is generated out of genuine concern for safer roads, and how much is wrapped up in revenue streams and prohibitionist ideology. They question the broad initiative afforded public-safety officers to mete out DUI citations, and consider the possible long-term stigmas that accompany a single DUI arrest. Ultimately, they look for the point at which good-sense, liberty-minded lawmaking ends and nanny-state intrusion begins.

One fact is beyond debate: From a financial and legal perspective, driving under the influence of alcohol – even at levels below the .08 percent blood-alcohol percentage (BAP) ceiling set by law – has never been more dangerous or costly. After a decade-long push, Arizona has one of the toughest DUI cultures in the nation. Getting “popped” in Arizona is expensive ($1,493 in fines and fees for lowest-level convictions, not including massive auto insurance hikes and attorney costs) and punitive (90-day suspended driver’s license and mandatory jail time). Arizona is also one of 15 states to mandate ignition interlock devices for all first-time convicted drunk drivers; the breathalyzer-based device remains in the car for six months and typically adds about $600 to a first-time offender’s DUI bill. The Arizona anti-DUI toolbox also includes sobriety checkpoints and enhanced no-refusal laws that punish suspected drunk drivers for declining blood tests. For these and other reasons, MADD recently awarded Arizona a five-star rating for its drunk driving efforts – one of just four states so designated.

“Not long ago, Arizona only got a C rating from MADD,” Biggers says. “We’ve come a long way in a short amount of time.”

One common misconception about DUI law is that drunk-driving suspects are immune from arrest if their BAP registers lower than the .08 legal limit. Not so, says Mesa criminal defense attorney Jason Squires. The Arizona statute that governs DUI law (28-1381) states that “it is unlawful for a person to drive or be in actual physical control of a vehicle… if the person is impaired to the slightest degree.” Empowered by the “slightest degree” wording, peace officers enjoy broad interpretive freedom to make arrests. You might not feel intoxicated after those two glasses of mid-shelf California zinfandel – and, in fact, you might blow a .04 – but if the cop on the scene judges you to be impaired, you could go to jail. “That’s why I never drive after even one drink,” Squires says. “I call a cab or get a ride. It’s the only way to be sure.”

Squires knows first-hand how liberally Arizona’s DUI law can be applied to suspected drunk drivers. In 2008, his wife, Heather – who also works as his legal assistant – was arrested in Mesa for driving under the influence of alcohol and having a BAP over the legal limit. It was a remarkable feat on her part, considering that she had nothing to drink. Not a single, solitary sip. At the time of her arrest, her blood-alcohol content was 0.00.

Four years after the fact, the story still beggars belief. It began with a night of social drinking at Chuy’s in Tempe. Squires was helping a college buddy from Tucson celebrate his admission to law school. The men had asked Heather to serve as designated driver, and it was fortunate they did – Squires estimates that he, his brother-in-law and his college friend drained at least four pitchers of beer that night. Heather dutifully abstained.

With Heather behind the wheel, the group loaded into Squires’ pickup truck around 9:30 p.m. to drive home. Within a few blocks, after passing through the intersection of Baseline Road and Mesa Drive, Heather saw the flashing lights of a motorcycle cop in her rearview mirror. Being unfamiliar with the truck, she’d evidently failed to flip on the headlights, and the officer pounced.

Squires recognized the cop – Mesa police officer Bond Gonzalez – immediately; Gonzalez was the arresting officer in an extreme DUI case that Squires had litigated a few months prior. He spent parts of three afternoons cross-examining Gonzalez, and ultimately got the charges dismissed.

Still, Gonzalez wrote in his report of the incident that he didn’t immediately recognize Squires, even when the attorney identified himself – a notion that Squires scoffs at. “He was the case agent so [he] sat in the trial the whole time,” Squires says. “He’d have to be really dense not to remember my name.”

Squires claims that Gonzalez demanded Heather’s license and then quickly ordered her out of the car without asking the million-dollar question: if she’d had anything to drink. “I said ‘Gonzalez, what are you doing?’” the attorney recalls. “The officer came on pretty strong, yelled at her to get out of the vehicle. He was giving her the hard-stop. Something didn’t feel right.”

On her husband’s advice, Heather exercised her right to decline the roadside sobriety test, which some DUI experts believe to be overly subjective and stacked against the suspect. A Phoenix New Times article (Heather Squires was Arrested Without Drinking a Drop of Alcohol, May 29, 2008) notes that Heather was wearing heels and the ground next to the car was loose gravel – not exactly a level playing field for the rattled legal assistant.

At that juncture, it would have been fairly routine for Gonzalez to administer a Breathalyzer test – but for some reason, even after several Mesa PD squad cars arrived on the scene, such a test was never requested. Instead, Gonzalez put Heather in handcuffs and loaded her into the back of a unit. “It really illustrates that when an officer initiates an arrest, it sets in motion a process to protect the entity, protect the exposure of the unit,” Squires says, speculating on why a breathalyzer wasn’t administered.

In his affidavit, Gonzalez noted that Heather had “bloodshot and watery eyes” and a “strong odor of alcohol emitting from [her] breath” – curious statements, given that her blood test came back at 0.00 three weeks later, after the truck had been impounded and Mesa police moved to suspend her license. Without comment or apology, the charges were dropped, “with an alacrity I’ve rarely seen in my days as a lawyer,” Squires says. The couple entertained filing a civil suit against Mesa PD, but dredging up the incident proved so stressful for his wife that she suffered a miscarriage, Squires maintains. “It broke our family’s spirit.”

To this day, Squires suspects that the incident was retribution for his work defending DUI cases. But he also says it reflects a “presumption of guilt” on the part of law enforcement when dealing with motorists. “I don’t know what’s worse: the idea that they were picking on me, or that the whole thing was business-as-usual,” he says. “The fact is: After 8 p.m., after happy hour, the police will pull you over for minor traffic infractions that they’d summarily ignore during the day. And once the machine starts moving to conviction, you can’t really stop it. It’s just a big money machine.”

There’s little question that the onerous financial burden of paying off a DUI is one of the most powerful deterrents against getting one in the first place. And it’s just as true that DUI fees and assessments have become an abundant source of revenue for municipalities. Arizona courts collect upwards of $60 million annually for DUI convictions; roughly the operating budget of the National Guard contingent working the Mexican border. According to Phoenix defense attorney Rich Gaxiola, the total minimum fines for a DUI has ballooned over the past decade, from the $300 range in the late 1990s – when the state stepped up its DUI enforcement efforts by legalizing sobriety checkpoints – to its current $1,493.

According to Loren Braud, spokesman for City of Phoenix Municipal Court, the schedule and dissemination of DUI fees is regulated by Arizona law; this means you’re paying essentially the same in fees whether you’re convicted in Tempe, Queen Creek, Peoria or any Arizona city. In 2011, the base fine for a DUI conviction was $250. That money is kept by the city court in question and is funneled directly to the city treasury. Arizona law also provides for two hefty DUI “assessments”: $500 for a “prison construction and operations fund” and another $500 for the “public safety [DPS] equipment fund.” Some of the money may return to the cities, as well, in the form of task force stipends and funds for other law enforcement initiatives (see chart, pg. 34).

No reason to soft-pedal it – Arizona governments have developed an acute fiduciary dependency on DUI dollars. If DUIs ended tomorrow, agencies across the state would be met with crushing budget shortfalls. But that doesn’t mean cities forecast DUIs the way a sports franchise forecasts season-ticket sales, according to Phoenix Police Department spokesman Sgt. Trent Crump. “There’s certainly no set number that we try to hit – no quota that’s set,” Crump says. “We’d certainly look at it as a good thing to have fewer DUIs.”

By the same token, Crump says there’s an “expectation for officers to remain productive” by vigilantly enforcing traffic laws and maintaining a community presence when not engaged on emergency calls. “We have a zero tolerance policy that we hope all officers enforce,” Crump says. “And that means: When we observe a vehicle in which the driver appears to be impaired, we do whatever is in our power to make sure they’re stopped. We don’t look for alternative to DUI enforcement. We’re not in the business of driving [an impaired driver] home or making an educational contact.”

Though alcohol-related traffic fatalities plummeted to 223 in 2010 from a five-year high of 397 in 2007 – suggesting that Arizonans are driving impaired less often, or perhaps driving less-impaired more often – DUI arrest numbers in Arizona have remained steady, ranging from a 10-year high of 41,751 in 2002 to a low of 35,375 in 2005. Quotas or no, the flow of Arizona’s DUI revenue stream appears unresponsive to the actual drunkenness of drivers.

Fines and court fees aren’t the only currencies nourished by stricter DUI laws – the championing of anti-drunk-driving legislation has political currency, too. In his tireless quest to portray himself as “America’s Toughest Sheriff,” Maricopa County Sheriff Joe Arpaio announced plans to deploy DUI offenders around Chase Field during last summer’s All-Star game to pick up trash – human billboards, essentially, for his law-and-order bona fides. (The All-Star chain-gangs were ultimately called off.)

Pro-sober-driving activists, led by MADD, have consequently become powerful lobbies in state capitols and Washington, D.C. – an endorsement from MADD would look good on any family-values-minded candidate’s resumé, and the organization is one of the few national lobbies with across-the-board bipartisan support. As the attorney Squires puts it: “Nobody wants mothers to lose children over drinking. It’s like supporting veterans. You can’t go wrong.”

Backed by a $45 million annual budget, MADD has lent a hand in formulating every major piece of drunk driving legislation in Arizona for the last two decades, according to experts. Nationally, the group was instrumental in lowering the federal blood-alcohol limit for drivers: first, from .15 to .10 in the early 1980s, and again from .10 to .08 in 2000. Even the organization’s critics concede MADD has made American roads and highways safer since California housewife Candice Lightner – whose daughter was killed by a drunk driver – founded the organization in 1980. “MADD was a great organization when it started out,” Sarah Longwell, spokesperson for the restaurant-supported American Beverage Institute, says. “Back then, about 60 percent of all traffic fatalities were alcohol-related. Now that figure is below 30 percent, and MADD had a lot to do with that.”

Longwell, who is arguably the nation’s most visible and outspoken critic of MADD, contends that the nonprofit has strayed from its roots as a grassroots movement focused on victim support services and drunk driving. Citing MADD’s opposition to alcohol advertising and tacit support of the one-drink-is-too-many principle, Longwell labels the group “neo-prohibitionist” and says it suffers from “mission creep.” She points to the D-rating MADD received from the American Institute of Philanthropy in 2010 for its unwieldy bureaucratic operating costs and trumpets the fact that MADD founder Lightner quit the organization in 1985 because she objected to its agenda. “People need to realize that MADD isn’t the same group it was 20 years ago,” Longwell says. “They spend an awful lot of time and resources lobbying for stricter laws on alcohol and not just driving.”

One of MADD’s most controversial initiatives is its support of legislation that would make interlock devices standard factory-installed equipment in all new cars. Using emerging touch-sensor technology that can register blood-alcohol levels from the skin of one’s hand, the devices would force all drivers – whether driving home from a bar, work or church – to self-administer a sobriety test before starting the engine. Anticipating objections from a privacy-minded public, MADD spokesperson Biggers insists that drivers would grow accustomed to the devices. “It’s just like seat belts 30 years ago – people didn’t want them at first, but that wore off,” she says. “And [interlock devices] would make sure that everyone who gets on the road is safe.”

Critics vehemently object, citing common false-positive readings (e.g. from the trace alcohol in mouthwash) and the fact that peak blood-alcohol doesn’t manifest until 30 to 90 minutes after drinking – which would force authorities to set the devices at .02 or lower to ensure their efficacy, beverage spokesperson Longwell predicts. She continues: “That’s essentially a prohibitionist policy. Our position at the ABI is that drinking responsibly and driving should be legal.”

Longwell also calls into question MADD’s motivations in “appropriating millions of dollars” toward interlock research. Mandatory factory-installed interlocks is generally seen as a potential windfall for car manufacturers – essentially adding a pricey “option” to all base models. Coincidentally or not, the Alliance of Automobile Manufacturers topped MADD’s self-reported list of corporate donors in 2008-2009 with a six-figure to million-dollar contribution.

Ultimately, the ideological war between MADD and ABI – and, for the matter, the drunk driving debate en toto – pivots on what constitutes a “safe” level of intoxication while driving. According to a landmark 1987 report published in the Canadian Journal of Public Health, a 175-pound man will achieve a peak BAP of .047 after consuming two standard drinks (each drink being equal to a 5-ounce glass of wine or 12-ounce beer) in quick succession; after three drinks, his BAP will reach a near-illegal threshold of .071. His 130-pound female companion will peak at .077 after two drinks; after the third drink, she hits .116 and will not be legally sober until three hours after her last sip (.071).

Those are the numbers; the actual metrics of safety are much more subjective. MADD spokesperson Biggers concedes that “tolerance differs vastly” among drivers but cites evidence that “significant impairment starts at .03.” Meanwhile, a NHTSA report in 2010 revealed that a large majority (70 percent) of drivers involved in drunk driving fatalities had a BAC of .15 or higher – clearly, a .04 driver is exponentially more “safe” than one who blows a .15 (which constitutes an “extreme DUI” in Arizona).

Beyond the safety issue is the civil liberty debate – the one that asks hard, insuperable questions like “How many drinks is one life worth?” and “Why set a DUI limit at all if a cop can arrest you for one beer?” According to Dr. Barbara McCrady, director of the Center on Alcoholism, Substance Abuse and Addictions at the University of New Mexico, the issue of drinking and driving is particularly troublesome for Americans because it presents dual contradictions to our self-identified values of life and liberty. “We lean toward social protection... when it’s something that so dramatically affects other people,” McCrady says, noting that America’s .08 limit is actually higher than that of most developed nations. “When it comes to drinking heavily but not hurting other people, we lean toward individual liberty. If a family wants to commit someone who’s harming himself – a chronic alcoholic, for instance – they can’t really do that.”

Where current DUI laws are concerned, McCrady says “we don’t have a bad balance [of punishment and leniency] right now” but remains undecided on the wisdom of hitting first-time offenders with hard punitive actions like prison time and interlock devices. “For first-time offenders with interlock, the device has a positive effect on recidivism rates during the first year [after the device is removed],” she says. “But after two years, the rates catch up.”

Defense attorney Squires is less equivocal; he thinks the laws in Arizona are too punitive for first-time offenders, and claims that he’s represented “over 1,000” out-of-state ASU students who packed up and took their tuition dollars out of Arizona after bumping up against the state’s harsh laws. Squires would like to see Arizona adopt the kind of “diversionary” law practiced in Utah and Colorado: no ignition interlock and reduced fines for first-time offenders who blow under .12. “Most people get freaked out by the first (arrest) and keep their noses clean,” he says. “The second one indicates that you probably have an alcohol issue.”

He’d also like to see traffic laws enforced equally at all times during the day: “It’s frankly un-American to do these blanket sweeps.”

Bar and restaurant owners – who stand to lose the most financially from scared-sober drinkers – are surprisingly ambivalent about Arizona’s tensile DUI laws. “It’s made a huge impact. You don’t have the late-night crowd that you used to, that’s for sure,” says Richardson Browne, owner of Dick’s Hideaway and the Rokerij in Phoenix. A waiter and bartender in the days of the bygone .15 legal limit, Browne waxes nostalgic about “martini-lunch businessmen” who would knock down so many drinks in one sitting, he and his coworkers would water down their cocktails so the buzzed businessmen wouldn’t get fired. Though he’s lost some business, Browne calls the drinking-and-driving situation in Phoenix “almost reasonable now,” lauding the efforts of activists to curb genuine drunk driving, which he says helps take the onus off his bartenders to cut heavy drinkers off.

He also says that his regulars have adapted, using taxis and designated drivers more frequently. “Come Saturday or Sunday morning, there are five or six cars in my lot, from people who found rides the night before,” he says. “You never used to see that.”

Following a decade of aggressive public information campaigns and the kind of word-of-mouth that only widespread DUI arrests can engender, it seems unlikely that any would-be drunk driver could take the wheel in Arizona without being cognizant of the risks, both mortal and legal. But if a week in Tent City doesn’t drive the point home, what about one’s livelihood? According to defense attorney Gaxiola, a DUI conviction – which stays on a driver’s record for seven years – doesn’t directly affect your ability to get credit, because “that’s based on your ability to pay and credit patterns and debt-to-income ratio.” But, as a matter of public record, DUIs will find their way onto “private data bases used by rental agencies and prospective employers.”

“So a DUI could very well impact your employability,” says Gaxiola, who, like his colleague Squires, takes a cab or finds a designated driver whenever he imbibes. “So indirectly it could affect your credit score – by taking away your ability to pay your bills.”

Follow the Money: Where First-Time-Offense DUI Dollars Go

• Base fine (kept by the jurisdiction): $250

• Flat state surcharge (law enforcement equipment; gang and immigration enforcement): $13

• Probation assessment: $20

• Public safety equipment fee (vehicles, protective armor, electronic stun devices and other safety equipment; also placed in a general state fund): $500

• Prison construction assessment (used to pay for any costs related to prison overcrowding and department support and maintenance): $500

• State of Arizona surcharge (required for all civil traffic and criminal fine payments; goes to Clean Elections Fund, DNA Fund, others): $210

TOTAL - $149

 

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