Business Realities of the DUI Industry: A Problem of Supply and Demand
There is a massive industry that has arisen around what we commonly refer to as DUI cases. Here in Pennsylvania, the average first time DUI offender pays around $1,900 in legal fees and then $4,000 to $6,000 in court costs, fines, fees, and the like. DUI is the most common crime in Pennsylvania with 43,365 people being charged with DUI in 2016, roughly equating to a quarter billion dollar industry in just one state.
And it is a very profitable industry.
The DUI industry has no price competition, no inventory costs, and no marketing costs. People who fall into the clutches of the DUI industry are simply ordered to pay the fees, there is no negotiating, no shopping around, and if you fail to pay, you will be sent to prison.
As good and just as it sounds, the industry has a problem, and that problem is supply and demand.
Owing largely to public relations campaigns stigmatizing drunk drivers and the fear of falling afoul of the law, more and more drivers are taking an Uber, using a designated driver, using public transport, or not drinking outside the home. This represents a reduced supply of “drunk drivers” for the DUI industry to extract money from.
Of course, that quarter billion dollar gravy train has a lot of mouths to feed. The last thing anyone who makes a living off of DUI cases wants to see is an end to people driving drunk. If anything, the industry wants more DUI cases in the system because that is the only way anyone in the industry could ever see a raise.
But the number of people who get behind the wheel drunk or in an outrageously impaired state has been declining for years, since the late 1930’s when the first modern scientific DUI laws imposed the then legal BAC limit of 0.15.
The Solution? Move the Goal Posts.
The solution? Increase the supply of people to run through the system by changing the definition of DUI to include more people, including people who might not even suspect that they are breaking the law.
If you are old enough to remember it, the crime was originally called ”Driving While Intoxicated.” They really meant it, you had to be Intoxicated, or “drunk” to run afoul of the law.
As the driving public came into compliance, the industry dealt with the dwindling supply of offenders by changing the crime to “Driving Under the Influence.” You no longer had to be “intoxicated,” or “drunk,” just Influenced. They solved the supply and demand problem by simply lowering the amount of alcohol you could have in your system. It is around this time that the legal BAC limit in most states was lowered from .15 to .10.
Another Solution: Punish Sober Drivers
About 15 years ago, the industry again ran into a supply and demand problem. It must have been bad because they wrote one heck of a new law.
This time the law was called “Driving After Imbibing Alcohol or Utilizing Drugs.”
You no longer have to be “intoxicated.” You don’t even have to be “influenced” at all. You just have to be driving, “after” imbibing alcohol or using drugs. In many cases, you can be stone cold sober and still be found guilty.
This new law again lowered the BAC ”limit,” this time to .08, and included “drugged” driving for the first time.
Some of the more interesting and perhaps ill-considered features of the new Driving after Imbibing (“DAI”) law, included that:
- You would be guilty, as the highest rate offender, if a blood test showed you had the metabolites of an illegal or un-prescribed drug, even if you were demonstrably “sober” at the time of the pullover.
- You would be guilty if at any point within two hours after driving a blood test showed a BAC in excess of .08.
The metabolites rule of §3802(d)(1)(iii) in PA Title 75 works to criminalize driving by people who may, in fact, be sober but who may have used illegal or un-prescribed drugs in the past. This law works particular injustice on people who use marijuana, the metabolites of which can remain in the user’s blood for up to thirty days.
Imagine a situation today where a driver goes to another country or jurisdiction where marijuana is legal, or even medically prescribed, and uses marijuana. That person is subject to a DAI arrest and conviction, any time he or she drives, for up to thirty days after sobering up.
I have seen many, many very bewildered clients who didn’t understand how they were being charged with a “DUI” when they don’t drink at all and had shared a single a “joint” with a friend a week before the pullover.
The two-hour rule is also used in some unusual ways.
Imagine a situation where you have dinner and drinks at a restaurant near your home. The food in your stomach slows the absorption of alcohol through your stomach into your bloodstream, so in spite of the fact that you have had more than the recommended number of drinks, the alcohol hasn’t hit your blood or your brain yet.
You are, at this point, legally sober, and will be for a while, certainly long enough to get home (depending on distance), so you get in your car and start driving.
On the way home, you make a less-than-complete stop at a stop sign. The police pull you over and ask if you have been drinking. You admit drinking and pass the field sobriety tests. The portable breathalyzer reveals a BAC of .04, which is under the legal limit.
I have handled cases that mirror this imaginary situation. In many, the officer has made people wait before allowing them to leave the scene of the pullover.
The officer can make you wait up to two hours, during which time the alcohol in your stomach can start passing into your bloodstream and your BAC will start to climb. If it goes over the .08 threshold at any time within two hours after driving you are retroactively guilty of DUI, despite the fact that if you hadn’t been pulled over, you would have been safely home while still under the legal limit.
It is interesting to note that both drivers in the above two scenarios were and felt “sober” but were found guilty nonetheless. The marijuana smoker because of their use of marijuana in the past, and the restaurant diner because they would go over the legal BAC limit in the future.
Trick them with the BAC “Limit”
The newest trick that has come into use is the cynical and misleading use of our “general impairment” law:
- “An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle.”
This is the carrying forward of a law that existed prior to the use of BAC standards and it relied on the officer’s subjective observation that the driver was so inebriated that they were a risk of harm to society. These were people that showed obvious signs of their state, such as vomiting or the inability to stand up or walk straight.
The introduction of the use of BAC levels came about because it was thought, primarily by the insurance companies who had to pay for accidents, that there were levels of alcohol use that might not be easily identified by police as dangerous but which, nonetheless, were in fact dangerous.
BAC levels were envisioned as levels of intoxication lower than that enjoyed by the obviously intoxicated driver, which still presented a risk of car crashes and other accidents.
As noted above, the current .08 BAC limit is actually the third BAC limit that the government has used. If .08 is an accurate assessment of the BAC level beyond which drivers are incapable of safely driving, it stands to reason that the earlier limits, .15 and .10, were mistakes. One might reasonably question the government’s ability to set any standard with authority, having already gotten it wrong twice.
The perspective of this blog, however, is that the BAC limit is being lowered to pull in more people, not because of scientific advances in the understanding of the effects of alcohol on coordination and driving skills.
It appears that even this third try at setting a BAC limit does not appear to be bringing in enough DAI cases. I suggest this is the case because police and DA’s are, at this moment, prosecuting people every day for DAI with BAC’s lower than the .08 limit.
You might ask, how and why that is happening?
After all, the government has gone to great lengths to make the public aware of the .08 BAC limit. The government prints and distributes charts showing how many drinks you can have based on your weight and still be under .08. The government also approves courses and driver education programs publicizing the .08 limit.
A legal limit is something you can’t go over without breaking the law, for example, hunters are limited to three shells in their shotgun during hunting season. Imagine the game warden citing, and the DA prosecuting someone, with only two shells in their shotgun for having more than three.
The “how” of prosecuting people for DAI who have less than the legal limit of .08 BAC is accomplished by citing them under the old “general impairment” statute of §3082(a)(1) of PA Title 75, instead of the .08 limit of §3802(a)(2). The police simply assume that, based on their training and observations, you were under the influence of alcohol to such degree that you were incapable of safe driving. Under the general impairment rule, your BAC is irrelevant.
As for the “why” of prosecuting people who are in compliance with the law, it could be that the driver in question actually was incapable of safe driving at some BAC under .08. It could be that the driver in question “mouthed off” to the police.
Or it could simply be the law of supply and demand.