The DUI Exception to the Constitution
Lawrence Taylor (retired)

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So, these are just three examples. There are hundreds of things wrong with these machines, not just theoretically, but applied to the machines themselves. How accurate are they? They’re accurate—they're close enough for government work. In California, for example, the standards of accuracy by law are that you have to have duplicate analysis within .02%. That means you'd have to take two tests. If the first one, just to use a number to make it mathematically easy, if the first one is .10%, the next one has to be .08, .09, .10, .11 or .12. Think about it. 40% range of error is scientifically accurate in a case where they’re going to convict beyond a reasonable doubt. 40% range of error is considered by law acceptable accuracy.

The people that make these machines—and I have never referred to them as instruments—the people that make those machines keep coming out with new models. They’ll come out with a model to be state-of-the-art, foolproof, fail-safe and then two years later they come out with a new model that takes care of all of the problems of the first model. And then a competing company comes out, comes out with a new model that takes care of the problems with their competitor’s new model. And this is a fairly constant and aggravating circumstance.

If you look at the warranties—it is sort of interesting—the warranties are they—none of the manufacturers warrant these things to actually test blood-alcohol. If you read the warranties, there is no warranty for fitness for a particular purpose. That's a legal phrase. Basically it means they don’t want to get sued by somebody if there is a false reading. So they will not even warrant these things to do what they’re selling them to do. The warranty, for a total breakdown, is about one year—about what your toaster is—parts and labor 90 days. About what your toaster is. Difference? Your toaster is warranted to toast bread.

Okay. Science and law. Right off the bat we’ve got a problem. Science, if you can define it, would be, I would say, the systematic pursuit of truth. The objectives of law are very different. It is a governmental mechanism for imposing order, structure, predictability, security, confidence of the public in its institutions. It is not concerned with truth. It is important to understand the entire DUI field. To understand it you must understand the difference. Hundreds of years ago a guy named Galileo said the universe is not the way the Vatican says and you saw what happened to Galileo. Have we progressed? Not if a lawyer tries to tell the truth to a jury and is thrown in jail for doing it. I would say we have not come all that far.

Now lastly, as to what you’re looking at as you imagine going through these different procedures, I would just very briefly, as to punishment, rather than going through all the horrors of punishment today, complexities of punishment today, other than to say in California you’re better off as a first offense burglar or grand theft; a felony, than you are as a first time misdemeanor DUI. But I will comment on two things. The Mothers Against Drunk Driving have been very active recently in trying to get "Scarlet Letter" laws passed. Almost did it two months ago in California. Came close. The Scarlet Letter law is: if you are convicted of a DUI, you must have a big bright red license plate saying the big scarlet letter DUI, DUI. Your wife has to drive it, your kids have to drive it, you can’t rent a car, whatever. You have to carry that brand on you. As long as you drive a car for whatever period of time.

The other comment is a case many of you may have heard about in North Carolina. Now, we have never executed people, we’ve never, until recently, given the death penalty unless there was pre-meditation. Intention to kill and time to reflect upon that and then to carry out the plan and cold-bloodedly murder. Some exceptions have been added: Killing a police officer; multiple murders; murder by torture; murder for ransom. In North Carolina this year there was a DUI. It would in any other case, in another state, be a manslaughter case. A death occurred. It was not intentional. It was negligent; it may have been reckless. And the prosecutor sought the death penalty. The death penalty. Fortunately, they didn’t get it. My understanding is they got life, but I don’t know.

So, in the DUI field you have unfair procedures. You have false evidence. You have erosion of rights. But at least the DUI-caused fatalities are falling correct? If you believe the statistics from the Mothers Against Drunk Driving and National Highway Traffic Safety Administration. If you look at it more closely, you’ll find they start using terms like "alcohol-involved", "alcohol-related" and those statistics start changing to justify what they have been doing for the last few years.

So, what is happening in the DUI field? Same thing that’s always been happening. The danger to your lives, to my children and your children’s lives, are from recidivists. Statistically overwhelmingly recidivists. People that have done it before. Repeat offenders. Which is a relatively, despite what MADD says, a relatively small percentage of those who are arrested. Problem. How do you reach those people? Can you affect the incidence of death caused by DUIs by increasing the punishment? As to those recidivists and I tell you—no.

You are trying to use the legal system to address what is at least a medical, perhaps psychological, but in my opinion, absolutely a genetic problem. Now that sounds like an easy cop-out for me. I wrote a book about 15 years ago called Born to Crime, The Genetic Causes of Criminal Behavior, so I suppose that I am a little bit biased, but I’m relying upon defending thousands and prosecuting thousands of DUIs and I’m absolutely convinced that it is genetic in origin. And I think the studies and one of the chapters of that book Born to Crime was devoted to alcoholism. The studies are overwhelming, overwhelming. If my own experiences with clients have not been, those studies certainly are. And so long as you have a system that is geared to behavioral modification—that is, we’re going to change his drinking habits by putting him in jail for six months, or deterrence—we’re going to stop other recidivists from driving drunk because of the deterrent effect, then you’re fooling yourselves. Do I have an answer? No, I don’t. But I know that system isn’t working and in the meantime you are destroying the constitutional rights that we’ve enjoyed.