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Monday, March 15, 2010
Pendulum Swings on DWI Attitudes
By Leslie Linthicum
Journal Staff Writer
It was probably inevitable that the tide would begin to turn against the state's all-out effort to crack down on DWI.
Nothing breeds dissent like success.
Seven years ago, when Bill Richardson was elected governor and quickly tagged drunken driving and its fatal consequences as a top priority, no one uttered a discouraging word.
It would have been politically unpopular, not to mention morally indefensible, to argue against reform in a state that was just about the worst in the nation for alcohol-related fatalities.
So we famously threw the kitchen sink at the problem — a groundbreaking ignition interlock program, court monitoring, more cops, roadblocks galore — and the numbers of fatalities and injuries sank to historic lows. At last count, we were at 26th in the nation when calculated by miles driven, a respectable middle of the pack.
We still have terrible crashes involving really drunk drivers with long DWI records who kill beautiful kids. The Santa Fe collision a week and a half ago that tore apart the Peshlakai family reminds of us of that.
Despite that, if you've been listening carefully you've heard the rat-a-tat-tat of dissension, second-guessing and blow-back against "You drink, you drive, you lose." The backlash goes like this: I'm all for arresting the real drunks, but DWI enforcement is out of control, especially in Albuquerque. Anyone who's had anything to drink and even people sleeping it off in their cars are going to jail.
"They are arresting people below .08 percent," state Sen. Michael Sanchez, D-Belen, says, to explain why he sponsored a bill in this year's legislative session to eliminate the alternative "impaired to the slightest degree" standard from the DWI statute.
To explain his bill, he repeats a familiar hypothetical.
"Say you're at a chamber meeting or you're coming from any meeting where maybe you've had a glass of wine," the senator says. You're stopped for some reason — maybe you didn't use your turn signal, maybe a brake light is out — and the officer smells alcohol on your breath.
"And let's say you're my age — older people — and they get you and pull you out of the car and say, 'Hey, let's do a field sobriety test' and you're not able to do the field sobriety test, not because you're under the influence or intoxicated, but because you can't do it. They take you down and you blow into the machine and maybe you blow a 0.01 or a 0.02 and you're then prosecuted for it."
Scenarios like that were a familiar mantra during the legislative session.
The light drinker who gets caught up in the DWI dragnet meant for the real drunks and the poor guy who knows he's drunk, tries to sleep it off in his car and also goes to court for DWI — they helped to make Richardson's proposal for jail time for first-time DWI offenders dead on arrival. And they helped to push Sanchez's bill to erase "impaired to the slightest degree" and eliminate the charge for being drunk in a turned-off car through two committees and to the Senate floor before the session adjourned.
"I heard all of those things," says MADD statewide Director LoraLee Ortiz, who said the change in attitude toward DWI reform is a recent development. "They really, really want to emphasize that you can receive a DWI when you're under 0.08."
And you can. Every year, police make about 20,000 DWI arrests across New Mexico. About 15,000 of those arrested agree to a breath test. In 2008, as an example, about 1,1000 of those people tested blew under a 0.08 percent, the state's presumptive level of intoxication, according to the University of New Mexico's Division of Government Research.
An analysis breaks it down: About 41 percent of those people hadn't been drinking at all, but they had drugs in their systems that, presumably, impaired their driving; another 34 percent had both drugs and alcohol in their systems; and the remaining 25 percent had only alcohol on board.
So, of the 20,000 or so DWI arrests in a year, about 250 to 300 — or around 1 or 1 1/2 percent — involved people who had been drinking but without drugs on board who were under 0.08 and failed a filed sobriety test.
"Is it likely to happen? No," says DWI czar Rachel O'Connor. "Is it possible that it could happen? Yes."
I can't find statistics that show how often a person found sleeping drunk in a car is charged with DWI, but I'd guess it's even more rare.
Why is there such fear and anger over such rare occurrences?
Because people like a bright line, a clear rule they can understand — 0.08 percent and above, say, and not a more vague "impaired" standard. Because people like to drink, and we don't accept that two or three drinks can cause impaired driving, despite what a police officer or alcohol researcher might say. And because our sense of what's right and what's wrong gets rattled by things that don't make sense, like when a guy sleeping in his car gets arrested for driving while intoxicated.
And because Hegel had it right. We move forward by the inevitable process of contradiction and reconciliation. In philosophy, it's called thesis (DWI is a terrible problem, and we really need to attack it) and antithesis (Wait a minute; that's going too far).
The product of this always-contentious process is synthesis — a collectively accepted way to move forward.
What will our way forward be in terms of DWI laws, enforcement and penalties?
A new governor and a batch of lawmakers next year could decide to dispense with arresting kinda-drunk drivers and put the attention and resources toward the really drunk drivers who, after all, are the ones who tend to be involved in the serious crashes.
Or they could decide that nobody with booze on his or her breath should be in the driver's seat and lower the presumptive level even farther.
They could stamp convicted drunken drivers' licenses with a big red "DWI" that doesn't allow them to legally buy alcohol by the bottle or the drink. Or they could agree everyone deserves a second chance and kick up the penalties only for multiple offenders.
Sen. Sanchez, like all good public officials, is careful to make a distinction between questioning how we stop DWI, not whether we do.
"Everyone wants to stop it," he tells me. "It's, have we gone too far with quotas? Are the right people being prosecuted? Are the resources that are necessary to defeat this awful thing that we have being used in the right places?"
O'Connor says a review is under way for all of the elements of the kitchen sink that have been thrown at the problem, to find out what has worked best and what has been most cost-effective.
Sanchez says he was testing the waters a bit with his bill and he liked the response he got. He'll be back with a similar bill next year.
State Sen. George Muñoz, a Democrat from the heart of DWI country — McKinley County — says he likes the idea of moving in the opposite direction — making 0.04 percent (the mythical "only two beers, officer") the standard for DWI and stop arguing about impairment.
MADD's Ortiz says she finds DWI attitudes about as polarized right now as she's ever seen them.
But, she says, "I think the pendulum always swings from one extreme to the other and then somehow balances out in the middle. I just don't know what a good middle spot is."
There were 152 alcohol-involved fatalities in New Mexico last year, up from 143 in 2008. That puts us among the middle group of states in the death tally, but I doubt that's the middle spot anyone would admit being comfortable with.
UpFront is a daily front-page news and opinion column. You can reach Leslie at 823-3914 or llinthicum@abqjournal.com.
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