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reading forbidden lit, some notes: drunk driving laws not seriously enforced until the 1970s, 2 decades after the invention of the breathalyzer, when "per se" laws were enacted to make actual impairment irrelevant—eg not illegal "drunk" driving, but illegal "BAC over X%" driving.
"per se" drunk driving statute based on BAC originated in Sweden & Norway, was called the Scandinavian model when adopted in the 60s. Grand Rapids Study was responsible for normalizing BAC tests, was conducted by Breathalyzer's inventor R.F. Borkenstein. sus, will review in a min
The Scandinavian BAC model looks disputed also; i highly suspect drunk driving death studies are disputable in general. To review: Laurence Ross, The Scandinavian Myth: The Effectiveness of Drinking-and-
Driving Legislation in Sweden and Norway
Driving Legislation in Sweden and Norway
BAC laws were set to .15% through the 80s. Mothers Against Drunk Driving began lobbying and succeeded in getting 90s Clinton Admin to push it down to .08% by withholding federal highway funding. They also forced 21 drinking age. Was challenged but upheld as constitutional
Per se drunk driving laws have been challenged as unconstitutionally from day one, but none have held up. "Void-for-vagueness" is most common & imo strongest argument, that there is no clear way for a person to know if they've gone over the hard BAC limit. Dismissed:
“...no reason why a person of ordinary intelligence would have any difficulty in understanding that if he has drunk anything containing alcohol, and particularly any substantial amount thereof, he should not attempt to drive or take control of a motor vehicle.”); State v. Franco
I think this is a very weak, dogmatic argument; the law does not ban drinking and driving, but drinking TOO MUCH and driving. It is not illegal to have one beer and drive, the BAC law allows for it, yet the dismissals of the void-for-vagueness case assumes it is.
other standard argument is against Breathalyzer reliability. (to research its error rate; NJ court recognized & accepted it leads to 2.3% of pop wrongfully convicted (is this really within normal false pos range for criminal law?)). Sadly no arguments have held, precedent settled
One exception exists, per se drunk driving thrown out as unconstitutional on basis of violating right to presumption of innocence, by presuming intoxication at X% BAC. I agree w/ this argument as well. Unfortunately it was orally delivered in a civil court, does not set precedent
I believe there are arguments for per se drunk driving laws violate 14th amend equal protection (BAC physiological variability (esp gender)), 4th's search & seizure (DUI checkpoints), 5th's self incrimination (refusing beathalyzer)& due process (legal presumption of intoxication)
i found a law blog who seems to agree and has a lot of cases cited for the various arguments. as i suspected, drunk driving laws are highly exceptional in criminal law, create a lot of distorting precedent. you'll always find trouble behind every dogma
https://www.kennedyforlaw.com/drunk-driving-exceptions-to-the-constitution-and-other-legal-standards
https://www.kennedyforlaw.com/drunk-driving-exceptions-to-the-constitution-and-other-legal-standards
he introduces some interesting points. being pushed to blow into a breathalyzer is exceptional in assenting the arrestee in affirmatively performing in the creation, then turnover, of evidence. also that BAC tests can be taken long after the actual driving took place
more interesting, read the footnotes he has on each case cited, showing just how much drunk driving is given exceptional status, breaking court precedent and constitutionally regularly; speed trap rules, even unwarranted house entry, ignored because much drunk driving = political
