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Politics of Drunk Driving

There is no area of the law in the modern era that is more driven by political pressures and agendas than the area of drunk driving. [I had one judge who was apoplectic about my mentioning the term "drunk driving," because the statutory offense is "driving under the influence of alcohol," not "drunk driving"!   Give me a break: the Vehicle Code index lists it as drunk driving, the Mothers Against ... list it as "drunk driving," the appeals and supreme courts refer to the topic as "drunk driving," the billboards and roadside 9-1-1 advisals and other government propaganda label it "drunk driving," etc.  Indeed, so unhinged was that judge over the label that we had to refer to, over my strident objection, MADD as "Mothers Against Drinking Drivers."  The hysteria in his mind about calling it "drunk driving" is part of the politics of the enterprise.]

When I say "modern era," I am calling to mind the obvious comparison from days of old to the Salem Witch Trials, wherein 17 women, two men, and a dog were executed for suspected witchcraft on the same sort of hysteria-driven ignorance and suspicions and fears and self-serving pressures by evil people that visit the subject of drunk driving now.

The most disappointing and ominous aspect of this area of endeavor is that jurors, citizens from the community who are supposed to protect us all from overweening government [executive, legislative, and judicial branches], fall prey to the suasions of government, and to their laughably programmed and scientifically incompetent "criminalists," who will testify to whatever their governmental masters need, while dressing their perfidies up in seductive scientific jargon. I got one who testified that "everyone is impaired at .08%" to confess that there was a time she would have testified that "everyone is impaired at .10%," because that was the law then, and at ".15%," because that was the law then.  She agreed that there has not been an evolution in the human organism over that short a period that changed what is its "impairment," but only a change in the law, and she works for the law.  Wow - unusual honesty by a government criminalist, and it was probably accidental.

In no other area of law would we allow the self-serving governmental hackism that visits a drunk driving trial to infect the evidentiary stage.  But jurors become seduced by the testimonial self-righteousness of the shiny badged cop and by the pseudo-science of the earnest hack, and they cannot perceive that they are being led down a primrose path whose careless thorniness will eventually come back to haunt them, and us all.

No other crime is the subject of such government propaganda as is drunk driving.  No other crime has as powerful and pushy lobbyists as we see with the neo-prohibitionist MADD and related organizations as drunk driving.  No other crime has so rigidly tied the hands of sentencing judges as does drunk driving.  No other crime has as harsh an escalating recidivism scale as drunk driving, where misdemeanors can readily morph to felonies on the 4th go-around. No other crime causes those alleged to have committed it to give up and plead guilty to the alarming extent that we see with drunk driving.  No other crime has the extensive governmental propaganda of bill boards and street signs decrying its commission as we see with drunk driving.  No other crime has generated the dramatic exceptions to constitutional and statutory protective rights that we see with drunk driving.Jurors have to start to resist this reactionary outrage by understanding that it is all smoke and mirrors.

The stats are manufactured; the science is akin to voodoo, and the harm to the victims of prosecution is incalculable.  Yes, yes, there are people injured by drunk drivers - just as there are, in far greater scale, people injured by out of control, brutish, sometimes homicidal cops, but the excesses of neither group justifies punishing all in either group. We make prejudicial generalizations about those accused of drunk driving, and that is dangerous, unjust, and unfair. And it has to stop.

Michael Kennedy

Admitted to Bar, State of California, 1981 Education: Widener University, Chester, Pennsylvania (B.A., 1970) Southwestern University School of Law, Los Angeles, California (J.D., Scale, 1981) Harvard Law School, Program of Instruction for Lawyers, Cambridge, 1987

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