There are two particular areas that come to mind wherein we take our usual Constitutional safeguards and put them on the hold for the sake of judicial expediency: rape and drunk driving.

I’m going to sidestep the whole rape issue for the moment because it’s such a contentious debate that it will sidetrack the main topic for discussion here. I’ll just say that I don’t bring it up because I am outraged. It’s a sticky subject and I think I fall more on the expediency side of the debate than the other.

Drunk driving is a bit more topical as we approach the New Year, so I want to address that one.

Normally, the accused has the right to refuse to self-incriminate, but in some (many? most? all?) if you refuse to take a drug test, the cop can (on the spot) arrange the holy fires of hell to rain down upon you. In Delosa they can take your drivers license and impound your car for 30 days or until trial on the spot. Even if you are exonerated, you still have to pay the impound fees. In some jurisdictions from what I understand they can technically sell your car before you’re convicted or exonerated, though I’ve never heard of this actually happening (I have heard of it happening in drug cases, though). Also, the fact that you refused to submit to a breathalizer test can be used in court, when no other case of refusing to self-incriminate is that the case (that I’m aware of).

As with rape, this is a response to a very real problem and it would be much more difficult to prove drunk driving cases without it. Drunk driving kills countless people every year and we depend on the breathalizer test to sort it all out.

What’s interesting about this, though, is that in many jurisdictions, including Delosa, you can be convicted even if you pass a breathalizer test. They hammer this point home when you take defensive driving. Passing the breathalizer test is not a fireproof defense against drunk driving. The ostensible reason for this is that if someone takes medication that makes the effects of alcohol more potent, someone with a .04 Blood Alcohol Content (BCA) is more drunk than the average driver at .08. There is also the more inconvenient rationale that some people really are incapacitated at .06 and need to be taken off the road.

Why do I refer to that as “inconvenient”? Because if some people are more affected at .06 than others at .08, then we have to admit that other people are not as impaired at .11 as the average person is at .08. If we’re judging the drunkenness based on impairment, then some .11 should theoretically not be convicted. The ability to effectively drive drunk should be a defense. If we’re judging it based purely on BAC levels, then nobody at .06 should be. Maybe the latter should be convicted of driving recklessly or something like that, but not of the same crime that is usually based on the BAC number.

I have the same discomfort with this that I do with paternity tests… an affirmative result is enough to get you, but a negative result is not necessarily enough to set you free. Paternity tests only involve money, though. Drunk driving tests can involve a lot more.

For the most part, though, drunk driving convictions when someone passes the breathalizer are very difficult to get and are rarely pursued. Juries have the BAC threshold ingrained into them and they will trust a breathalizer over a cop’s word about what constitutes drunken behavior. Even so, the time and money that goes into defending oneself is problematic. And unlike with traffic tickets, you’re going to go through every effort you can to defend yourself because you can’t make it go away with a $100 fine.

Of course, you can’t make it go with a $100 because the stakes are not only higher for the accused, they’re higher for society as a whole. Drunk driving has killed thousands upon thousands and arguably the authorities need every tool they can get in order to fight it. Despite having these tools, any 2am drive on a public street near a bar will indicate that they are failing miserably. Despite all of the threats that they can levy, people do it anyway.

In Santomas, Estacado, where I currently live, the SPD is having every officer from the Cheif of Police on down manning a car on New Years Eve to track down drunk drivers. I’m sure they’ll catch many, but for every one that they catch, dozens will go uncatched. The Santomas Taxi Association will also be offering free rides home to those that can’t afford it, but for every one of them they get, dozens more will drive themselves so that they don’t have to leave their car in the parking lot or will believe themselves not to be incapacitated. Tow companies will offer free tows, but there aren’t enough tow trucks.

No matter how you look at it, there are going to be a lot of people that are going to need to get home somehow. Some won’t be able to afford going home in any way except their car (even a free taxi ride will require an unfree one back to the bar to pick the car up). Without a solid public transportation infrastructure, the most efficient way for them to do it is to play roulette with their lives and the lives of other drivers. Most are willing to gamble that they can get home safely and without incident. The overwhelming majority are right.

All of the tools in the world that we give police can’t refute that logic, so I guess all we can hope is to scare the bejeezus out of enough people that as many lifes as possible are saved.