Is Representative Perry’s HB 303 violating the basic principle in our justice system – the right to equal and fair treatment under the law?
Flagged Bill: HB 303 – Driving Under the Influence Amendments
It is widely accepted that a blood alcohol content (BAC) of 0.08 percent is dangerous when behind the wheel. On a practical level, there is really no difference between 0.079 percent BAC and 0.08 percent BAC. However, from a legal stand point, it makes all the difference in the world for the person who gets pulled over while driving home from a party.
But why? Shouldn’t a police officer be able to arrest someone if they are “close enough” to the legal limit? The short answer is no.
The reason law enforcement cannot simply enforce a “close enough” doctrine is that it violates a basic principal of our justice system – equal and fair treatment under the law. One officer may think that “close enough” is a BAC of 0.07, another 0.05, and some could think that 0.001 is enough to be considered dangerous behind the wheel. In every situation, however, citizens are receiving unequal treatment and the line between legal and illegal becomes hazy.
So it is concerning to see HB 303 – Driving Under the Influence Amendments from Representative Lee Perry (Republican – Perry).
HB 303 proposes that the state change the standard of impairment from “being under the influence of alcohol, any drug, or the combined influence of alcohol and any drug to a degree that renders the person incapable of safely operating a vehicle” to “being impaired to the slightest degree by alcohol, any drug, any substance, or any combination thereof.”
The term “slightest degree” places an extreme amount of power in the hands of police officers and allows personal bias to enter the system. It can be argued that a single beer in a 160 pound man, which produces an estimated BAC of 0.02 an hour after he had the drink, counts as creating the “slightest degree” of impairment, as that individual is likely experiencing slight feelings of relaxation or lightheadedness.
Even if someone doesn’t drink, this law would still have a negative effect on people. Just about every over the counter or prescription drug, including cold and decongestant medicine, has some mild side effects which could classify a driver as “slightly impaired” after it is consumed. Drowsiness, anxiety, headache, nausea, pain, or swelling are just some of the numerous side effects that could be experienced when taking legally prescribed drugs. These impairments, though slight, would turn a driver into a criminal if HB 303 were to become law.
The problem is not so much that Perry, who works as a highway patrol officer when he’s not on the hill, is proposing a zero tolerance policy for driving under the influence. The problem is that the statute could allow officers to abuse the law and harass the citizenry. Even well-intentioned officers will be forced to make judgement calls that would, inherently, create inequity when determining if a person is impaired.
Though the current law still allows for judgement calls on the part of an officer, the line is more clearly defined as to determine if a person is or is not capable of safely driving a car. Swerving, rapid speed changes, very fast or very slow driving, and general erratic behavior are more clearly definable and observable, and an officer is more clearly justified in initiating a traffic stop. The “slightly impaired” standard will only create problems for citizens and police officers and will jam up the courts as they are force to determine what was “slightly impaired” on a case by case level. Though everyone is entitled to their day in court, a clear definition of the law helps speed up the process.
It is certainly a laudable goal to attempt to make our roads safer, and if Perry feels that the way to do this is to reduce impaired drivers by reducing legal BAC levels to 0.05, 0.03, or even 0, he should simply do so. That statute is literally one line down in the code from the law he wishes to change. No good will come out of the proposal as it stands, and any driver on the road who took an aspirin before driving could be considered a criminal, and face the massive fines and humiliation that come with an arrest for driving under the influence. We have standards and limits in place so that we can clearly define what is and what is not legal, and to create a purposefully fuzzy standard will only cause problems.
***Note: this bill has been substituted, this analysis may no longer be valid***